• May 8, 2013

Update (May 8, 2013):  Max Kennerly, of the Beasly Firm, LLC in Philadelphia is a preeminent legal blogger and personal injury lawyer.  If you only have time for one litigation blog, consider Kennerly’s, http://www.litigationandtrial.com/.  (Also consider Minnesota Litigator if you are a Minnesota lawyer or are interested in Minnesota litigation.)  

Here is a recent guest post of Kennerly’s on yet another excellent blog on the subject touched on in my post below:  who’s the expert on experts?

Update (February 25, 2013): Minnesota civil litigators take note!  You will lose your case in response to a motion for summary judgment if you offer an expert’s affidavit that says, in essence, “I have reviewed the materials in this case and it is my opinion that my client has a real claim.”  Even if your expert is the real deal, an authority, a legit expert, a font of specialized knowledge, a model of deep intellect and integrity.  You must plunk down the ducats and/or invest the sweat equity so your expert’s opinion has substance and traction.  The expert must have “foundational reliability.”  The expert’s opinion must identify particular data, industry standards, guidelines, professional manuals, testing, etc. to support his opinion.  

Original post (October 1, 2012):  In U.S. civil litigation, the credible threat of a trial, by itself, regardless of potential liability or fault, can have considerable monetary value.  If a litigant is able to get a wealthy person or, even better, a huge multi-national business to face a civil trial, the litigant holds an asset of sorts even if his claim has no merit whatsoever.

Some (many) feel that this economic reality exposes our justice system to being an oxymoron, that is, the so-called “justice system” could be transformed into a tool for  “legal extortion.”

Our state and federal court systems are both aware of the potential for abuse of the systems in this way, however, and they have mechanisms set up to discourage, limit, or eliminate such abuses.  One of them is to require plaintiffs to come forward with competent experts who will offer testimony supporting the plaintiffs’ claims as a prerequisite to getting to trial.  No expert to support your theory of liability, no trial.

So, for example, this summer, the Minnesota Supreme Court confronted the thorny question of “repressed memory,” invoked by some plaintiffs to justify bringing legal claims that otherwise would be time-barred (that is, past the applicable statute of limitation).  Was there sufficient expert testimony as to the “foundational reliability” of the theory of “repressed memory” so as to allow the plaintiffs in such cases to survive pre-trial dismissal based on the statute of limitations? Answer: No.  The Minnesota Supreme Court elaborated:

[T]he district court must analyze the proffered testimony in light of the purpose for which it is being offered …. Second, the court must consider the underlying reliability, consistency, and accuracy of the subject about which the expert is testifying. … Finally, …[t]he proponent of evidence about a given subject must show that it is reliable in that particular case.

I believe that there is no question that the Minnesota Supreme Court decided the Doe case correctly but is that passage entirely clear to you?  Me, neither.

Among other things, it seems extraordinarily difficult to apply this rule across the huge array of cases in which expert testimony plays a part.  Certain areas of expertise are grounded in “hard sciences,” which are subjected to rigorous and widespread norms and standards of expert review and consensus, the best example probably being medicine.  This is where most of the focus is when considering the admissibility of expert testimony.  But the “gate-keeping” rules for expert testimony apply to other areas in which “scientific” or “technical” knowledge is required.  This is where things get considerably more difficult to define the boundaries of courts’ proper role.

For example, it will be a challenge in the case of Ben Lau v. Midwest Fence and Manufacturing, Co., in which the Minnesota Supreme Court just vacated the Minnesota Court of Appeals decision in favor of the plaintiff Lau for the Court of Appeals to determine whether plaintiff’s expert testimony should be admitted.  The Court of Appeals, in turn, had reversed the district court’s decision favoring Midwest Fence, which had been based on missing a deadline and also a supposed failure of plaintiff’s expert to provide an adequate foundation for his opinions.

Ben Lau was trying to close a gate in high winds.  He alleges the gate system did not work properly and his thumb was partially severed as a result.

Lau hired Lance Beaulieu, of Designer Decks and Fence.  Beaulieu opined that there was a defect in the design of the cantilever gate and that the material piping for the gate frame was too light in wall thickness to accept a 30-foot cantilever gate. Alternatively, Beaulieu stated that the gate’s saddle latching assembly was not correctly installed because it lacked heavy pipe and footings.

Beaulieu has 35 years of experience in the industry but the district court found that he failed to “cite[] … facts or data upon which his opinion is based.  Instead, Beaulieu states…that his opinion is based upon Midwest’s responses to discovery….”

The challenge, therefore, for the Minnesota Court of Appeals, to whom this case was remanded, and to the lawyers for the parties, is just how they will apply the Minnesota Supreme Court’s ruling in Doe to the facts and proposed testimony in Lau.

Circling back to the initial concerns underlying our evidentiary rules on expert evidence, it does not seem that the situation in Lau bears much if any resemblance to cases like Doe or Daubert — the “poster-children” of the importance of courts’ exercise of their “gate-keeping” function to prevent “legal extortion.”  It does not seem that the facts of Lau pose the threat of a trial in which the plaintiff otherwise would obviously have no claim.

To the contrary,aren’t courts somewhat presumptuous in assuming that trial court judges have the proper background, specialized knowledge, or expertise to judge the “foundational reliability” of experts in the huge array of arcane technical aspects of modern life on which we all rely on experts?  It is one thing for courts to insist on solid scientific acceptance and support of proposed “expert testimony” in hard sciences such as medicine, in which there is an established system of verification or validation; it is quite another to ask countless technical experts, whose skills might be as foreign to forensic science as can be, to parse difficult legal standards and package their deep knowledge and experience in what, to them, is a foreign language so that judges can understand it and give it the judicial gate-keeper Good Housekeeping “seal of approval.”

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