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October 27, 2011

Antitrust Litigation and Experts


Experts play an unusually large and essential role in antitrust matters, whether in private and class-action litigation or in litigation with the Federal Trade Commission or the Department of Justice. Experts are needed to support claims about the nature of the relevant market, the existence of effective competition, and so on. Selecting and examining experts then raises issues at the heart of any antitrust case. Given the importance of experts to antitrust cases, it is not a surprise that the antitrust community has much to say about experts in litigation.


The Summer 2011 issue of Antitrust (a publication of the ABA’s Section of Antitrust Law) is devoted to expert testimony in antitrust matters. While the experts in antitrust matters are mostly economists, the problems and possible solutions in dealing with experts in highly technical and complex topics carry over to other areas of law and experts in other specialized and academic disciplines.


While antitrust law is the background frame, so to speak, for the articles, they are not just for antitrust lawyers or economics wonks—there are valuable discussions of and advice for anyone whose cases involve expert testimony. The articles cover the cross-examination of experts, challenges under Daubert, judicial gatekeeping, and complex testimony, none of which are limited to the antitrust world, and the advice useful in dealing with most sorts of experts. There is also an interview with Judge Vaughn Walker of the Northern District of California. There is even an introduction to econometrics aimed at lawyers. Even if you never handle an antitrust case, this issue will prove useful.


Keywords: litigation, expert witnesses, antitrust cases


—John H. Bogart, Telos VG, PLLC, Salt Lake City, Utah


 

October 19, 2011

Washington Clarifies the Frye and Daubert Standards


The Washington Supreme Court recently entered a decision that significantly clarifies the admissibility of expert testimony that relies on scientific evidence. In Anderson v. Akzo Nobel Coatings, Inc., No. 8226406, 2011 Wash. LEXIS 669 (Wash. Sept. 8, 2011), the court recognized tension between the Frye “general acceptance” and Daubert “reliability” tests for admitting expert testimony and noted that Washington courts had yet to definitively adopt one standard for civil cases. The court ultimately held that the “Frye test is only implicated where the opinion offered is based upon novel science,” and does not apply to opinions, theories, or methods that are generally accepted in the scientific community.


In Anderson, the plaintiff worked for Akzo Novel Coatings for five years as, among other things, the health, safety, and environmental coordinator at her facility. As part of her job responsibilities, the plaintiff regularly mixed paint. While the company had a policy requiring employees to wear respirators when mixing paint, the policy was evidently not enforced and even undermined. While employed at the company, the plaintiff gave birth to a son with multiple birth defects, including neuronal migration defect, congenital hemiplegia, microcephalus, and multicystic dystplastic kidney. One of plaintiff’s physicians concluded that her son’s birth defects were likely caused by exposure to paint chemicals. After being laid off for allegedly complaining about the company’s safety conditions, the plaintiff sued for negligence and wrongful discharge. As part of her case, the plaintiff retained various experts who were prepared to testify that the birth defects were caused by the organic solvent exposure.


The company sought to exclude the experts, arguing that their testimony did not meet the “generally accepted” standard under Frye, and the trial court agreed. The Washington Supreme Court reversed, holding that the Frye test is not implicated when the theory and methodology used by the expert is “generally accepted” in the relevant scientific community. The court rejected the trial court’s conclusion that “there must be consensus of scientific opinion on the issue of specific causation,” and instead held that “if the science and methods are widely accepted in the relevant scientific community, the evidence is admissible under Frye, without separately requiring widespread acceptance of the plaintiff's theory of causation.” Thus, Frye “does not require that the specific conclusions drawn from the scientific data . . . be generally accepted,” so long as the underlying theories and methods are generally accepted. Further, the court explained that the Frye test—and its more stringent admissibility standard—applies only when the opinion is based on experimental or “novel” science. In this case, the court noted that “there is nothing novel about the theory that organic solvent exposure may cause brain damage,” and reversed the trial court’s ruling that had excluded the testimony of the plaintiff’s experts.


As a result of the Anderson decision, Washington litigants will have an easier time submitting expert testimony based on new or developing scientific theories and methods. Attorneys should pay careful attention to the case law governing their state and stay attuned to whether this decision is followed by other state appellate courts.


Keywords: litigation, expert witnesses, Daubert, Frye, Washington, admissability


—Joseph Callister, Wick, Phillips, Gould & Martin, LLP


 

October 4, 2011

How Should Courts Handle Evolving Science?


Shaken baby syndrome is one area where changes in science may affect both civil and criminal proceedings. Changes like these can be unsettling when they cast doubt on judgments and/or criminal convictions. There is relatively little commentary on the problem and even less from the courts.


Prof. Sandeep Narang’s paper, A Daubert Analysis of Abusive Head Trauma/Shaken Baby Syndrome, discusses changing science and how courts should respond, looking at the example of science relating to shaken baby syndrome.


In recent years, there have been challenges to the science for diagnosing shaken baby syndrome resulting in legal commentary arguing that judgments, civil or criminal, are unsupported. Prof. Narang reviews the leading current salient science literature and considers that work in the context of Daubert standards. He offers some options for judges dealing with the admissibility of complex medical expert testimony.


Keywords: litigation, expert witnesses, Daubert, shaken baby syndrome, admissability


—John H. Bogart, Telos VG, PLLC, Salt Lake City, Utah


 

September 27, 2011

USCIS to Use FY2011 Visa Allocations through September


Although the Department of the State has distributed all employment-based immigrant visas for fiscal year 2011, U.S. Citizenship and Immigration Services (USCIS) will continue accepting the adjustment of status applications based on the September visa bulletin through the entire month of September.


Keywords: litigation, immigration, U.S. Citizenship and Immigration Services, visas


—Rajan O. Dhungana, UNLV Boyd School of Law J.D. Candidate 2013


 

September 27, 2011

USCIS Begins First Phase of EB-5 Enhancements


U.S. Citizenship and Immigration Services (USCIS) is implementing the first phase in a series of proposed enhancements to the EB-5 program [PDF]. Form I-924 applicants can now communicate directly with USCIS adjudicators via email, helping to streamline the process and to quickly raise and resolve issues and questions that arise during the adjudication process. The Form I-924 is the Application for Regional Center Under the Immigrant Investor Pilot Program. Information on how direct email communication will work can be found in the USCIS Questions and Answers document.


Keywords: litigation, immigration, U.S. Citizenship and Immigration Services, EB-5


—Rajan O. Dhungana, UNLV Boyd School of Law J.D. Candidate 2013


 

September 27, 2011

USCIS Seeks Comments on SIJ Classification


U.S. Citizenship and Immigration Services (USCIS) is seeking public comment on a proposed rule governing the Special Immigrant Juvenile (SIJ) classification. The proposed rule, if promulgated as a final rule, would allow USCIS to grant SIJ classification to petitioners whose reunification with one or both parents is not possible because of abuse, neglect, abandonment, or a similar basis found under state law. USCIS will accept public comments until November 7, 2011.


Keywords: litigation, immigration, U.S. Citizenship and Immigration Services, Special Immigrant Juvenile


—Rajan O. Dhungana, UNLV Boyd School of Law J.D. Candidate 2013


 

September 27, 2011

FAQ Provides Details on DHS Case Closures


U.S. Immigration and Customs Enforcement (ICE) has issued a Frequently Asked Questions (FAQ) document addressing the Department of Homeland Security’s (DHS) new policy of exercising discretion to close removal cases that are not high enforcement priorities. In a memorandum dated June 17, 2011, ICE provided guidance to agency personnel on exercising prosecutorial discretion to ensure that the agency’s immigration enforcement resources are focused on the agency’s enforcement priorities. The new FAQ provides further details on the reasons and goals for the new process.


Keywords: litigation, immigration, U.S. Immigration and Customs Enforcement, Department of Homeland Security


—Rajan O. Dhungana, UNLV Boyd School of Law J.D. Candidate 2013


 

February 3, 2011

Tenth Circuit Excludes "Human Factors" Expert


In Graves v. Mazda Motor Corp., the Tenth Circuit affirmed the trial court’s decision to exclude “human factors” expert testimony. Exclusion of the expert’s testimony mandated summary judgment. The Tenth Circuit found that the witness did not meet the standards of Rule 702, as his proposed testimony was not based on any data, industry standard, or testing, and instead “rests on no more than his say so,” which is far short of what is required for admission.


Keywords: litigation, expert witnesses, human factors, Tenth Circuit, Rule 702


— John H. Bogart, Telos VG, PLLC, Salt Lake City, Utah


 

Expert Witnesses under State Law


The Trial Evidence Committee has published a 50-State Survey of the standards applied to admissibility of expert testimony. The survey identifies the standard under which the testimony may be received in each state. The 50-State Survey of Daubert/Frye Applicability is available on the Trial Evidence Committee webpage.


 

Expert Testimony Excluded Because Revised Strategic Business Plan Was Unreliable


In ZF Meritor LLC v. Eaton Corp., 2009 U.S., Judge Robinson of the U.S. District Court for the District of Delaware, granted a motion to exclude the plaintiffs' expert testimony on the grounds that, while the expert employed a reasonable methodology, he had relied on data or information which was not reasonably reliable. In this case, the expert had relied on financial information (a portion of the plaintiffs' Revised Strategic Business Plan) without testing the data reflected or summarized in the financial document. As a result, he could not attest to the reliability of the underlying data or show that it was reasonable to rely on such data. See ZF Meritor LLC v. Eaton Corp., 2009 U.S. Dist. LEXIS 74180.


 

Update on Proposed Amendments to Rule 26 of the Federal Rules of Civil Procedure


The Judicial Conference has proposed significant amendments to Federal Rule of Civil Procedure 26 and recently closed the public comment period.  An article summarizing the proposed amendments, which were largely proposed by the ABA, may be found here.


The Judicial Conference received close to 80 comments on its Proposed Amendments to FRCP 26, including numerous requests to testify. After three public hearings, during which the Advisory Committee on Civil Rules heard testimony from a range of practitioners and scholars, the Committee voted in its April 20-21, 2009 meeting to approve the proposed amended FRCP 26 with slight modifications. The Advisory Committee forwarded its recommendation to the Committee on Rules of Practice and Procedure for consideration at its June 2009 meeting.


At its June 1-2, 2009 meeting, the Committee on Rules of Practice and Procedure adopted the recommendations of the Advisory Committee that the proposed rules amendments be transmitted to the Judicial Conference for consideration at its September 2009 session. If approved by the Judicial Conference, Supreme Court, and if Congress does not act otherwise, the proposed amendments are scheduled to take effect on December 1, 2010.


Other important resources:



 

Giving a Work Product Document to a Testifying Expert Can Waive Privilege


When providing documents to your testifying experts be mindful not to provide work product documents. If you do, you may be forced to either lose your protection or your expert – even if you gave the protected document to the expert by mistake. In late April 2007, the Texas Supreme Court held that a litigant who inadvertently provides a work product document to a testifying expert waives protection over the document unless that expert’s designation is withdrawn. In re Christus Spohn Hospital Kleberg, No. 04-0914, 2007 WL 1225351, at *5, (Tex. Apr. 27, 2007).


In reaching its conclusion, the Texas Supreme Court had to harmonize two competing statutes. Specifically, the Court decided that Texas Rule of Civil Procedure 192.3(e)(6), which permits discovery of all documents provided to a testifying expert trumps Texas Rule of Civil Procedure 193.3(d), the “snap-back” or “claw back” rule that allows a party to retract privileged or otherwise protected documents mistakenly produced during discovery. Id.


The Christus case involved documents that were generated in the course of a hospital’s internal investigation of medical malpractice claims. Id. at *1-2. By mistake, a paralegal provided investigation documents and other protected correspondence to the hospital’s testifying expert. Although she received the documents, the expert only “glanced” at them and did not rely on them in preparing her report. Id. The documents were later produced to opposing counsel in response to a subpoena duces tecum served on the expert. Upon realizing its mistake, the hospital sought to recover the documents by asserting the work product privilege and invoking Rule 193.3(d)’s snap-back provision. The trial court overruled the hospital’s claim of protection and the court of appeals denied it mandamus relief. Id.


After granting mandamus review, the Texas Supreme Court considered whether the snap-back provision preserved protection over Rule 192.3’s mandate that documents provided to a testifying expert are discoverable. Id. Noting that the snap-back provision is usually applied when protected documents are produced directly to opposing counsel, the Court recognized that under the circumstances presented here, the fact that the documents went to the expert thus implicated the “overlapping directive” from Rule 192.3 that all material given to a testifying expert must be produced. Id. at *4. The tension between the two rules created an issue of first impression for the Court. Id.


The Court first held that, despite the fact that the expert had not read or relied on the documents, they were subject to Rule 192’s mandate for production and unprotected by the work product privilege. Id. at *3-4. The Court noted Rule 192’s expansive language, stating that the rule requires production of all documents “provided to” an expert, “whether or not the documents were actually read by or prepared for” the expert. Id.


The Court then analyzed whether the snap-back provision might preserve the documents’ protected status or require their return. Id. at *4-5. It recognized that while Rule 193.3(d) focuses on intent by protecting a party when it does not intend a waiver, Rule 192.3(e)(6) requires that “documents and tangible things provided to a testifying expert lose their work-product designation irrespective of the intent that accompanied their production.” Id. at *5.


The Court also acknowledged significant policy concerns surrounding the use of expert witnesses, including their “vast potential for influence” and their ability to testify “unfettered by first-hand knowledge requirements that constrain the ordinary witness.” Id. at 5. Because of this potential, the Court reasoned that a jury should have full knowledge of all information provided to an expert, regardless of whether that information is ultimately relied upon. It thus concluded that Rule 192.3(e)(6) prevails over Rule 193.3(d) “so long as the expert intends to testify at trial despite the inadvertent document production.” Id. at 8.


However, the Court noted that a “producing party in such a situation is not without a remedy” and can choose to withdraw its expert designation and name another. Id. at 10. In so choosing, the party can recover its privileged documents upon realizing its mistake. Id.


— Wendie Childress, Yetter & Warden, LLP, Houston, Texas


 

ABA House of Delegates Adopts Proposed Policy on Discoverability of Expert Reports


At the ABA Annual Meeting, the House of Delegates adopted a Policy proposed by the Section of Litigation that urges the adoption of consistent rules governing the discoverability of expert reports.


» Read the Report and Policy

 

Expert Witness Fees Are Not Recoverable to Prevailing Parents in an IDEA Action


In Arlington Central School District Board of Education v. Murphy, the U.S. Supreme Court held that parents of disabled children that prevail in proceedings under the Individuals with Disabilities Education Act (IDEA) are not entitled to reimbursement for funds expended on experts. The applicable provision of the IDEA, 20 U.S.C. 1415(i)(3)(B), states that “[i]n an action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents of a child with a disability who is the prevailing party.”


Finding the Circuits split as to “whether Congress authorized the compensation of expert fees to prevailing parents in IDEA actions,” the Supreme Court granted certiorari. The majority ruled that such expenses are not recoverable by prevailing parents. Justice Alito, writing the majority opinion, stated the IDEA’s text “makes no mention of expert fees.” In reaching this conclusion, the majority held that the term “costs” as it appears in the statute is a “term of art” that did not include expert expenses. The majority recognized various reports and studies supported finding that expert costs were recoverable by prevailing parents, but ruled that “legislative history is simply not enough” to change the actual statutory language used. The majority also found that requiring school districts to reimburse prevailing parents for expert fees runs afoul of the Constitution’s Spending Clause, which permits Congress to set the terms and conditions on which it disburses Federal funds, because it does not “unambiguously authorize prevailing parents to recover expert fees.”


» Read the Related Opinion

 

Expert Witness Sued by Client Can Assert Equitable Indemnity Claim Against Retaining Law Firm


A California appellate court recently held that an expert witness who was sued by its client for professional negligence for providing inadequate testimony in the client's unsuccessful products liability case could assert an equitable indemnity claim against the client's trial attorney, who had not been similarly sued by the client for malpractice but had retained and insufficiently prepared the expert in the underlying case.


In Forensis Group, Inc.v. Frantz, Townsend & Foldenauer, 29 Cal.Rptr.3d 622, 624-25 (Cal. Ct. App. 2005), a testifying expert sought to bring an equitable indemnity claim against the law firm that had retained it as a testifying expert in an underlying wrongful death/products liability case. In the underlying suit, the expert's failure to properly account for certain safety standards in his report and deposition resulted in an adverse summary judgment against the client. The client later sued the expert for professional malpractice, although it did not also bring malpractice claims against its former law firm. In response, the expert asserted a cross-claim against the former law firm, arguing that it was entitled to equitable indemnity for the law firm's failure to adequately inform, prepare, and rehabilitate the expert in the underlying suit. The trial court granted summary judgment against the equitable indemnity claim, holding that the public policies protecting attorney-client loyalty and the confidentiality of client communications prohibited the claim.


The court of appeals reversed. The court noted that while there was in fact a general prohibition on claims for equitable indemnity when a client sues a former attorney for malpractice and the former attorney seeks equitable indemnity from a successor attorney, the policy considerations underlying that rule did not prevent the equitable indemnity claim in the present case. The court held that allowing the equitable indemnity claim between the expert and the law firm would not create a conflict of interest between the law firm and its former client because there was no danger that the law firm, in defending against the equitable indemnity claim, would have to breach either its duty of loyalty or confidentiality to the client. The law firm would not be required to show that the former client's case lacked merit or divulge any confidential client communications; rather, the law firm would only have to show that it provided proper information to the client and satisfied the relevant standards of care in preparing and utilizing the expert.


— Omar Kilany, Carrington, Coleman, Sloman & Blumenthal, LLP, Dallas, Texas