Expert Standards: Daubert Motions Require Full Hearings
Editor's Note: This article was originally published in BullsEye, a newsletter distributed by IMS Expert Services.
Courts must provide litigants with an opportunity to be heard before ruling on the admissibility of expert testimony - and in all but exceptional cases that requires courts to hold hearings with full briefing and argument, the Supreme Court of Mississippi ruled in an en banc opinion issued October 4th.
Reviewing a personal-injury case in which two girls were severely burned in a school bus fire, the Supreme Court held that the trial judge erred when he struck an expert's affidavit without a hearing and entered summary judgment. The court reversed the judgment and remanded the case.
While other federal and state courts have recognized that in limine hearings are often the best way to ensure that expert-witness issues are decided fairly, the Mississippi court made clear that hearings should be held in all but the most drastic of cases. At the same time, it stopped short of requiring hearings in every case.
"We generally recommend that the trial court conduct an in limine hearing specifically on the subject, as this procedure will result in full briefing and argument by the parties regarding the proposed expert testimony," the court said in an opinion written by Presiding Justice Oliver E. Diaz Jr.
"This will not only assist the trial court in its function as evidentiary gatekeeper; it will provide a fuller record for an appellate court should the parties contest the evidentiary ruling," Diaz continued. "While an in limine hearing may not be necessary in all cases, it does provide the most efficient manner of addressing the issue in many cases."
But the Supreme Court's chief justice, James W. Smith Jr., dissented from the opinion, joined by three other justices. He argued that the trial judge properly decided the motion without holding a hearing, because the affidavit was clearly defective. "The expert's affidavit was inadmissible because it was mere unsupported speculation, subjective belief, and conclusions without any basis provided by reliable scientific methods and procedures," he wrote.
MOTION TO STRIKE
The underlying litigation involved the two students' suit against the Amory School District after their bus caught fire and they were severely burned. Amory contended that a defect in the bus's propane fuel system caused the fire and it sought indemnity from Charles Clement, whose company had converted the buses from gasoline to propane.
When Amory's expert prepared an affidavit in support of this theory, Clement sought to strike it as insufficient under the standards of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), which the Mississippi Supreme Court adopted in 2003 as the state standard governing expert testimony.
The trial court, without holding a hearing, granted Clement's motion to strike. In a brief order, the trial judge said that the opinions of Amory's expert were "nothing more than unsupported conclusions which are devoid of a factual basis and not the product of reliable principles and methods." Having struck the affidavit, the court went on to enter summary judgment for Clement, finding that Amory offered no credible expert testimony to support its theory of causation.
THE BEST METHOD
On appeal, the Supreme Court restated its holding in another 2007 case that litigants should have an opportunity to be heard on the admissibility of expert testimony. The question in this case was whether the parties had such an opportunity.
The trial court had based its decision to strike on its review of the affidavit and of a rebuttal affidavit provided by Clement. It held no hearing on the motion to strike, but it did hold a hearing on the motion for summary judgment that Clement filed together with the motion to strike. At that hearing, Amory argued that its expert should be given further opportunity to expound on his theory.
Turning to federal cases for guidance on the issues, the Supreme Court noted that two federal circuits have issued opinions encouraging - but not requiring - trial judges to hold in limine hearings before making Daubert determinations. Hearings make sense, the court said, as the most cautious approach to complex evidentiary issues.
"Perhaps before Daubert, such a determination could be made without a hearing, but the continual evolution of science and the growing intricacies of litigation mandate that we take the trial court's role as 'gatekeeper' seriously," the court explained. "A hearing is simply the best method of guarding the admission of expert testimony."
Still, not every case requires a hearing, the court added. "Common sense informs us that in some cases an expert may be drastically unsuited to testify; for example, for a lack of standing within the proffered field or a discredited background." Even then, however, the parties must be given some other opportunity to be heard, such as an opportunity to file substantive briefs.
That said, the court was unequivocal in concluding that hearings should be conducted in all but the most clear-cut cases. Because Amory had no opportunity to be heard here, the court said, the expert's affidavit was improperly struck and summary judgment improperly granted.
In his dissent, Chief Justice Smith asserted that not every Daubert motion requires a hearing and that trial courts should be given latitude to decide how best to measure an expert's reliability.
"[T]he essential requirement is that the parties have an opportunity to be heard before the trial court makes a decision," he wrote. "A court need not hold an actual hearing in order to comply with Daubert."
The case is Smith v. Clement, No. 2006-CA-00018-SCT (Miss. 10/04/07).
Robert Ambrogi is the editor of BullsEye, a monthly newsletter distributed by IMS Expert Services. IMS Expert Services is the premier expert witness and litigation consultant search firm in the legal industry, focused exclusively on providing custom expert witness searches to attorneys. To read this and other legal industry BullsEye publications, please visit IMS Expert Services at www.ims-expertservices.com.