A 'Masterly' Opinion on Expert Testimony
By Robert Ambrogi
"Masterly" is the word
one blogger used to describe the recent federal appellate opinion overturning a $21 million jury verdict in a product
liability case. Another blogger commended the opinion for adhering to the "stark and clear text" of Federal Rule
of Evidence 702, rather than the more ambiguous language of the Supreme Court's Daubert decision.
The object of these accolades is the Sept. 8 opinion of the 6th U.S. Circuit Court of Appeals in Tamraz v. Lincoln
Electric Company, in which the court reversed a jury verdict in favor of a welder who claimed his exposure to manganese
caused him to develop parkinsonism.
In a carefully worded opinion, Circuit Judge Jeffrey S. Sutton
said that the expert testimony of the medical doctor who attributed the welder's disease to his manganese exposure
fell on the wrong side of "the often-elusive line between admissible opinion and inadmissible speculation."
While the court was careful to praise the expert as intelligent and knowledgeable, it said that his testimony concerning
causation was at best a working hypothesis, not admissible scientific knowledge. "Because the 'knowledge' requirement
of Rule 702 requires 'more than subjective belief or unsupported speculation,'" Judge Sutton wrote, "the testimony
should have been excluded."
Robert J. Ambrogi is a Massachusetts lawyer who represents clients at the intersection of law, media and
technology. A news media veteran, he is the only person ever to hold the top editorial positions at the two
leading national U.S. legal newspapers, the National Law Journal and Lawyers Weekly USA. He is also
internationally known for his writing and blogging about the Internet and technology.
Adding to the significance of the case is that it was one of the first to go to trial of several against manufacturers
of welding supplies that were consolidated as multidistrict litigation in the Northern District of Ohio. As the
6th Circuit's opinion noted, this case was seen as a "bellwether … to guide the resolution of the other cases."
Disagreement over Diagnosis
The plaintiff, Jeff Tamraz, worked as a
welder in California from 1979 to 2004. Beginning in 2001, he started to suffer symptoms of parkinsonism, including
tremors, drooling and impaired coordination. Believing that his condition was due to his exposure to manganese fumes
in welding products, he sued five manufacturers.
At trial, the dispute focused not on whether Tamraz
suffered from parkinsonism, but on its type. His contention was that he had manganism, a form of parkinsonism caused
by exposure to manganese. The defense contended that he had Parkinson's Disease, a form of parkinsonism for which
the cause is unknown. The symptoms of the two forms of the disease are similar but not identical., a form of parkinsonism
caused by exposure to manganese. The defense contended that he had Parkinson's Disease, a form of parkinsonism for
which the cause is unknown. The symptoms of the two forms of the disease are similar but not identical.
At the conclusion of the trial, the jury found against all five defendants on claims of strict liability and negligent
failure to warn. The jury awarded Tamraz $17.5 million in compensatory damages and his wife $3 million for loss
Key to the verdict, the 6th Circuit found, was the testimony of the plaintiff's treating
neurologist. Although several doctors testified as expert witnesses, it was the neurologist's evaluation of causation
that substantially swayed the jury, the court said. Uncertain Etiology
In its analysis of the case, the court focused on the evidence regarding the etiology – or causation – of Tamraz's
parkinsonism. The neurologist testified that Tamraz's symptoms resembled those of Parkinson's Disease. But he hypothesized
that Tamraz might have had a genetic predisposition to Parkinson's that manganese could have triggered, even in
lower levels than are necessary to cause manganism..
This testimony should not have been admitted,
the 6th Circuit said, because the expert went beyond the boundaries of what is allowed under Rule 702. "The etiological
component of this conclusion – the 'manganese-induced' part – was at most a working hypothesis, not admissible scientific
'knowledge,'" Judge Sutton wrote. "Because the 'knowledge' requirement of Rule 702 requires 'more than subjective
belief or unsupported speculation,' … the testimony should have been excluded."
Even though the expert's
hypothesis was plausible and "may even be right," it was nonetheless untested and required a leap of faith, the
court said. "That manganese could cause Parkinson's Disease in someone like Tamraz does not show that manganese
did cause Tamraz's Parkinson's Disease."
Judge Sutton was careful to say that the court's opinion
should not be read as a criticism of the expert for presenting the sort of hypothesis that plays a valuable role
in advancing medical science. But the law must follow science, not get ahead of it, he noted.
issue is the reliability of his opinion from a legal perspective," Judge Sutton explained. "And what science treats
as a useful but untested hypothesis the law should generally treat as inadmissible speculation."
Dissent Sidesteps Rule 702
In a dissenting opinion, Judge Boyce F. Martin Jr. criticized
the majority for its failure to defer to the trial judge's "gatekeeper" finding that the expert's testimony was
admissible. The trial judge was correct to have admitted the testimony under the standards set out by the Supreme
Court in Daubert, Judge Martin argued.
"While [the neurologist] testified that he was not able to
point to a specific study showing that manganese exposure caused Parkinson's Disease, his testimony was supported
by his own general experience and knowledge …, and theoretical medical writing that explored the connection between
manganese exposure and Parkinson's Disease," Judge Martin explained.
David E. Bernstein, a professor
at George Mason University School of Law and a nationally recognized expert on the admissibility of expert testimony,
contended that the dissent is wrong in its reliance on Daubert in place of Rule 702.
"Rule 702, promulgated
in 2000, and not the more ambiguous Daubert or Kumho Tire opinions, decided in 1993 and 1999 respectively, is what
dictates the scope of admissible expert testimony," Bernstein wrote in a post at the blog The Volokh Conspiracy.
"Any interpretation of Daubert, Kumho Tire, or the 1997 Joiner case that conflicts with the subsequent statute,
Rule 702, is legally incorrect." No Snarky Stuff Here
M. Beck, the Dechert LLP lawyer who writes the blog Drug and Device Law, praised the majority opinion not only for
its reasoning, but also for its craftsmanship.
"Every once in a great while, we read an opinion that
stands out as an example of judicial craftsmanship," Beck wrote at his blog. "The facts and issues are explained
in clear, lively prose. The reasoning is careful and thorough, leading inevitably to undeniable conclusions."
Beck was particularly appreciative of the respect the opinion's author showed to the parties in the case and to
the expert whose testimony was under examination. Conceding that, as a blogger, he sometimes takes pleasure in "making
snarky comments" about experts, he commended Judge Sutton for taking the high road in the opinion.
"Judge Sutton’s respectful dismissal of an expert’s testimony as inadmissible is much more satisfying than the snarky
stuff and delights the angels of our better nature," Beck said. "Advocates looking for a way to exclude the testimony
of a well-credentialed, respected expert would do well to follow Judge Sutton’s opinion."
was originally published in ExpertServices - BullsEye, a newsletter distributed by IMS ExpertServices. IMS ExpertServices
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