|Eleventh Circuit Report: Recent Eleventh Circuit DaubertCases Continue to Give the District Courts “Considerable Leeway” in Serving as the Gatekeeper of Expert Admissibility.by W. M. Bains Fleming, III
Payne v. C.R. Bard, Inc., No. 14-12603, 2015 WL 1435314 (11th Cir. Mar. 31, 2015)
In Payne v. C.R. Bard, Inc., questions of an expert’s qualifications were at the forefront of the court’s Daubert analysis. The plaintiffs brought a medical device product liability action against the manufactures of an inferior vena cava (IVC) filter. The filter was designed specifically to prevent pulmonary embolisms. One of the plaintiffs suffered a pulmonary embolism after the subject filter allegedly failed. In their complaint, the plaintiffs asserted four claims: “(1) strict liability based on defective design; (2) strict liability based on defective manufacturing; (3) negligence; and (4) loss of consortium. The U.S. District Court for the Middle District of Florida granted the defendants’ motion for summary judgement after granting their previous motion to exclude the testimony of the plaintiffs’ expert witness, Fredrick Hetzel, Ph.D. The plaintiffs appealed.
The plaintiffs offered Dr. Hetzel mainly to establish that the filter was defective and that the defendants’ warnings and labels were inadequate. On appeal, the Eleventh Circuit reviewed the district court’s exclusion of the plaintiffs’ expert’s testimony under an abuse of discretion standard noting that “it is by now axiomatic that a district court enjoys ‘considerable leeway’ in making these determinations” even when the decision results in summary judgment.
The plaintiffs contended that Dr. Hetzel’s experience qualified him to testify. Citing United States v. Frazier the court notes that “when an expert witness relies mainly on experience to show he is qualified to testify, the witness must explain how that experience leads to the conclusion reached why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.” Id. at *2 citing United States v. Frazier, 387 F.3d 1244, 1261(11th Cir. 2004).
The plaintiffs claimed that Dr. Hetzel was qualified based on his experience analyzing medical devices, including a project that involved an IVC filter. However, the district court determined that this experience was not sufficient since Dr. Hetzel’s only experience with these devices was gained while working with a different model of filter, for a brief period of time, over twenty years prior to the case at hand; they called his experience “limited and dated.” The district court further addressed Dr. Hetzel’s lack of experience by noting that Dr. Hetzel taught no seminars, published no articles about IVC filters, lacked the training to testify as a metallurgist, and lacked medical training. With this, the Eleventh Circuit concluded that the district court did not erroneously dismiss the expert’s testimony since the plaintiffs failed to show how Dr. Hetzel’s limited experience qualified him to testify in a case involving the testing, design, and labeling of the subject IVC filter. As a result of the exclusion of the expert testimony, the Eleventh Circuit upheld summary judgment in favor of the defendants.
Horton v. Maersk Line, Ltd., 603 F. App’x 791 (11th Cir. 2015)
The plaintiff, a longshoreman, suffered an injury when a “twist-lock” fell onto his head. The impact of the lock broke his neck in two places. He sued the owner of the ship and the owner of the cargo being loaded. The plaintiff also filed suit against the Georgia Port Authority. The case settled and he was awarded $600,000. Next, the plaintiff filed suit against the defendant-appellee, Maersk line, Limited. The complaint was later revised to include A.P. Moller-Maersk, A/S (“Moller”). The plaintiff claimed that Maersk did not exercise reasonable care to provide vessel equipment which was reasonably fit for intended use. The plaintiff alleged that the twist-lock mechanisms were antiquated and were known by the defendant to release from containers. The plaintiff sought to support his claims with expert testimony of Robert Williams and Jeffrey Culwell. The district court granted defendant’s motion to exclude the expert testimony of both Williams and Culwell and in turn granted summary judgment.
In the case of Mr. Williams, the plaintiff argued Williams’ twenty-eight years of welding experience, which included twenty-one years working on shipping containers, qualified him to testify about any defects in the casting corner or twist-lock. However, the district court determined that Williams’ welding experience with shipping containers was only tangentially related to the issue at hand. Also, because Williams “held no professional memberships; [had] not published any literature; and [had] never testified as an expert,” the district court determined that the plaintiff failed to show that Williams’ experience qualified him to testify about any defects in the twist-locks. The Eleventh Circuit ultimately agreed that Williams was not qualified to testify competently regarding the matters he intended to address, and therefore the district court’s reasoning was sufficient to dismiss the expert’s testimony in accordance with Rule 702. The Court of Appeals also cited United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) for three requirements the plaintiff must meet when proffering an expert: “(1) the expert is qualified to testify competently regarding the matter he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, though the application of scientific… expertise, to understand the evidence or to determine a fact in issue.”
In the case of Mr. Culwell, the court found that, while Culwell may have been qualified, his testimony, specifically his methodology, did not meet the standards required by Daubert. The district court noted that Culwell’s testimony did not utilize any peer-reviewed method to evaluate the condition of the twist-lock’s corner castings, it did not offer a standard by which to compare appropriate and inappropriate levels of wear on corner castings, and it lacked, in the district court’s bolder terms, “the slightest iota of science.” The Eleventh Circuit held that, because Culwell “provided no reason to believe that his opinion was rendered on the basis of some standard of pursuant to some methodology,” Culwell’s testimony was rightly rejected.
W. M. Bains Fleming, III is a partner at Norman, Wood, Kendrick & Turner in Birmingham, Alabama. Mr. Fleming’s practice areas include toxic and mass torts, products liability, medical malpractice and general insurance defense. He received J.D. from the Cumberland School of Law at Samford University and his B.A. from Washington and Lee University. He can be reached at Norman, Wood, Kendrick & Turner, Ridge Park Place, Suite 3000, 1130 22nd Street South, Birmingham, AL 35205, by phone at (205) 328-6643 or by email firstname.lastname@example.org.