Litigation Update - January 9, 2012

Supreme Court Denies Review of Controversial Daubert Ruling

Today the U.S. Supreme Court denied certiorari in U.S. Steel v. Milward, a First Circuit decision interpreting federal standards for the admissibility of expert witness opinion testimony. The First Circuit’s opinion remains controlling in that circuit, and the implications of the decision are bound to reverberate in products liability cases beyond that forum.

 

The controversy over Milward stems from the First Circuit’s endorsement of a “weight of the evidence” standard for assessing whether expert testimony on general causation is reliable. The decision arguably produces a rift with the Daubert law of other circuits, ignores key Supreme Court precedents interpreting Federal Rule of Evidence 702, and green lights the admissibility of expert opinions based on subjective judgments.

 

Milward is a products liability case in which Mr. Milward claims he developed Acute Promyelocytic Leukemia, a rare form of leukemia, from his occupational exposure to a lubricant containing varying percentages of benzene. Dr. Martyn Smith, a toxicologist, testified for the Milwards on general causation. Dr. Smith concluded that benzene could cause Mr. Milward’s disease based upon five bodies of evidence in the peer-reviewed literature relating to the nature and characteristics of benzene and leukemia. Acknowledging that the applicable epidemiological data were not statistically significant, Dr. Smith nonetheless concluded that the “weight of the evidence” supported his general causation opinion.

Defendants filed a Daubert motion challenging Dr. Smith’s opinion. After conducting an evidentiary hearing, the district court granted the motion, concluding that Dr. Smith’s opinion failed to satisfy the reliability requirements of Rule 702. A panel of the First Circuit reversed and remanded the case for trial, finding that Dr. Smith’s “weight of the evidence” approach can be used to support his general causation opinion. Despite the Supreme Court’s traditional reluctance to review interlocutory decisions, the defendants sought certiorari.

 

By denying certiorari, the Supreme Court, at least for now, has left the door open for parties to advocate that their experts’ general causation opinions can be based on a less stringent “weight of the evidence” approach, particularly where statistically significant epidemiological data do not exist. This standard, however, seemingly ignores the first two Daubert factors for admissibility — the ability to scientifically test the expert’s ultimate conclusion and the known rate of error for the expert’s methodology. The “weight of the evidence” approach instead relies upon the expert’s subjective assessment of the data. Nonetheless, because some courts may be tempted to follow the novel standard articulated in Milward, defendants need to be prepared to conduct probing discovery into the methods employed and data relied upon by opposing expert witnesses to demonstrate the unreliability under Rule 702 of the “weight of the evidence” approach.

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