Methodology

Will Your Methodology be up to Snuff? Beyond Frye and Daubert (Part IV of VII)

The methodology employed by the expert is a critical factor determining the admissibility of the testimony. Frye, Daubert, and Kumho provide guidance regarding the admissibility of the testimony. In this article, the author discusses these and recent cases, including: Manpower, Inc. v. Insurance Company of the State of Pennsylvania; United States v. Alabama Power Company; United States v. Cinergy Corp., to illustrate the how courts have decided motions to exclude.

In the Daubert decision, the Supreme Court expressly stated the focus of the inquiry into relevance and reliability “must be solely on principles and methodology, not on the conclusions that they generate.” 509 U.S. at 595.  However, not all courts have exhibited that restraint, and some courts have held that if the data or conclusions are unreliable, the expert’s testimony is unreliable and should be excluded.  In Frye states, if the methodology is new or based on emerging science, courts look for objective validation that the method has acceptance within the relevant community to establish reliability.

The Nuts and Bolts

When it is time to demonstrate to the court that your methodology is both relevant and reliable beyond mere ipse dixit^[1] (loosely translated in the legal context to mean “because I said so”), it is important to consider whether your opinion or conclusion can be reached by using a methodology that adheres to the Daubert criteria or state variations.  On the other hand, because the Kumho court granted judges “broad latitude” in applying any or all of the Daubert factors to an expert’s testimony, if the Daubert guidelines do not directly apply to your experience- or training-based methodology, then you need to identify other ways of demonstrating the reliability of your method or technique.

Will Your Methodology be up to Snuff?

After considering whether you are sufficiently qualified to take the case, how can you evaluate if there is an appropriate methodology you can follow to analyze the facts?  You should engage in discussions with the attorney to collect preliminary information.  Drawing upon your knowledge and expertise, consider whether you will be able to proceed from that data to an opinion.  Below are key questions to contemplate:

• Is there a methodology you can use that is either presented in peer-reviewed literature, consistent with formal training, or has acceptance in your profession?
• Can you employ a methodology you use in your professional practice that is based on sound principles?
• If there is not a standard methodology, can you demonstrate the methodology you plan to use can be reliably used by others as supported by your observations, experience, or training?
• Are there sufficient data and facts on which to rely in order to apply the methodology to the subject matter, or are the data and facts too sparse, creating an analytical gap too large to offer a reliable opinion?
• If the methodology requires assumptions about the inputs, can you provide a well-reasoned explanation (e.g., based on experience or presented in literature) for the method of selecting those inputs?
• Have others reached similar conclusions using a similar methodology with similar sets of facts or issues?

With those questions in mind, here are three examples of recent federal circuit court decisions on challenges to the relevance and reliability of an expert’s methodology.

The Sixth Circuit Minds the Gap

In ASK Chemicals v. Computer Packages, Inc., No. 14-3041 (6th Cir. 2014) the circuit court considered whether there was “too great an analytical gap” in determining admissibility of expert testimony.  In that case, the plaintiff’s expert was excluded from testifying on the amount of lost profits in a breach of contract dispute.  The district court granted summary judgment in favor of Computer Packages, Inc. after excluding ASK’s sole expert witness on the basis of unreliable methods.  The district court determined that although the expert “had sufficient specialized knowledge,” he had “based his calculations on fundamentally flawed data and impermissible methods.”

On appeal, the Sixth Circuit affirmed the district court’s exclusion of the expert witness.  The circuit court held that there was “too great an analytical leap” between the calculations the expert relied upon and the conclusion he reached because the expert had not independently verified the underlying data generated by the plaintiff.  In sum, the court concluded, “Given the unreasonableness of [the expert witness’] methods, the faulty and incomplete data upon which they were based, and the general unreliability of the evidence, the district court did not abuse its discretion in excluding [the expert’s] testimony.”

The Seventh Circuit Permits Expert to Dodge a Bullet

In this next case, the court also examined the underlying data in determining whether the trial judge properly excluded expert testimony for being unreliable.  However, the Seventh Circuit’s decision in Manpower, Inc. v. Insurance Company of the State of Pennsylvania, 732 F.3d 796 (7th Cir. 2013) stands in stark contrast to the ASK court.  In Manpower, Inc., the plaintiff’s forensic accounting expert opined on losses sustained from a business interruption.  The district court excluded the accountant’s expert testimony, leaving the plaintiff without evidence on sustained losses, and leading the court to grant ISOP’s motion for summary judgment.  Though the court concluded the expert had followed a reliable methodology to calculate losses—one that was required by the insurance policy—it took issue with the method the expert used in selecting the data to use in the calculations.  The court determined the expert’s analysis was unreliable because he used plaintiff-derived data without independently verifying the values.  (Note the similarity with the ultimate conclusion in ASK).

However, on appeal, the Seventh Circuit reversed the district court’s exclusion.  It held that “[the expert’s] opinion—although not bulletproof—is sufficiently reliable to present to a jury and that in excluding [the expert’s] opinion, the district court exercised its gatekeeping role under Daubert with too much vigor.”  In its decision, the Seventh Circuit articulated the same viewpoint it had expressed in prior rulings concerning abuse of discretion, reasoning, “The district court usurps the role of the jury, and therefore abuses its discretion, if it unduly scrutinizes the quality of the expert’s data and conclusions rather than the reliability of the methodology the expert employed.”

The Eleventh Circuit Concludes it is Not Quite a Carbon Copy

In United States v. Alabama Power Company, No. 11-12168 (11th Cir. 2013) the government alleged that Alabama Power’s modifications to its coal-fired power plants increased air emissions in violation of the Clean Air Act.  The district court, relying on United States v. Cinergy Corp., 623 F.3d 455 (7th Cir. 2010), excluded the government’s power plant engineering expert for having an irrelevant and unreliable methodology and granted summary judgment in favor of Alabama Power.[2]

In Cinergy Corp., the issue was whether modifications to a coal-fired power plant would increase pollutant emissions.  In that case, the Seventh Circuit concluded the expert’s testimony was unreliable for failing to demonstrate that the methodology and resulting conclusion were applicable to the facts, and therefore not appropriate for the jury to consider.  Because the facts, issues, and expert opinion were similar, the district court in Alabama Power applied the same analysis used to exclude the power plant engineer’s testimony.

On appeal, the Eleventh Circuit reversed the district court’s exclusion.  It found that the reliability of the testimony in the two cases was not identical.  Whereas the expert in Cinergy Corp relied on mere ipse dixit, in Alabama Power, the expert provided the results of his engineering investigation to demonstrate his conclusion and underlying methodology indeed fit the facts of the case.

Summary

What is the take-home message from these examples?  Some circuit courts apply a narrow view of Daubert in abiding by FRE 702 and others are more flexible.  Ultimately, there is no prescribed formula for avoiding or successfully defeating a motion to exclude your testimony, but fortunately, courts tend to follow precedent.  The outcome of an expert challenge can, therefore, be considered somewhat more predictable if there is established case law in a particular jurisdiction on which to rely.  Once you know which jurisdiction governs the case you are considering, find out from the attorney if there is case law that the courts have applied to expert testimony in the areas in which you are an expert.  With that knowledge, you can then make an informed decision on whether the methodology you plan to use is relevant and reliable.  This exercise is valuable, not only for being prepared to defend an expert challenge, but also for maintaining a good relationship with the attorney who has retained you, and for the possibility of future employment as an expert in your field.

This article originally appeared on IMS-ExpertServices.com in the Expert Library on May 20, 2015.

[1] In GE v. Joiner, the Court held “nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert.” 522 U.S. 136 (1997).

[2] While another federal circuit court’s opinion can be a resource for district courts that are not in that same circuit, it is not binding like opinions of the federal circuit court where that district court is found.

Wendy Pearson, founder of Pearson Research Group, has more than 15 years of experience providing strategic litigation support and expert witness support on over 50 major cases involving contaminants in the environment. She assists attorneys with case assessments, case strategy, understanding technical issues, fact and expert witness discovery, Daubert motions and responses, and direct and cross exams of experts at trial. Ms. Pearson fully supports expert witnesses throughout the litigation process to ensure high quality work product and sufficient preparation for deposition and trial. She holds a B.S. in Civil Engineering and a M.S. in Environmental Science and Engineering.

Ms. Pearson can be reached at (814) 240-2418 or by e-mail to wnpearson@pearson-rg.com.