State Variations on the Daubert Theme:
New York
Thomas F. Segalla
I.
Perhaps no single
area involving the application of Daubert
v. Merrell Dow Pharmaceuticals, Inc.,[1]
General Electric v. Joiner,[2]
and Kumho Tire Co., Ltd. v. Carmichael,[3] has
proven more difficult to the courts than injuries and medical conditions
allegedly caused by prescription drugs, over-the-counter drugs, medical
devices, or exposure to chemical substances.
In these types of cases, plaintiff’s counsel usually retains an expert,
i.e., a clinical physician, who is prepared to testify, based on the
plaintiff’s medical examination, medical history, medical screening and other
tests, that the drug, medical device, or chemical exposure was the proximate
cause of the injuries allegedly sustained.[4]
In Moore v. Ashland Chemical,
Inc., for example, the en banc Fifth
Circuit concluded that it was within the district court’s discretion to exclude
the causation testimony of the plaintiff’s clinical physician (i.e., a
pulmonary specialist). That
determination pointedly addressed the following factors:
1. the physician’s examination and test
results;
2. the physician’s training and
experience;
3. the time at which plaintiff’s symptoms
surfaced (shortly after exposure);
4. the Maintenance Safety Data Sheet,
warning that exposure to toluene could pose injury to the lungs; and
5. the speculative conclusions of an
article noting that toluene exposure could cause reactive airways dysfunction
syndrome.
The Moore decision
provides a detailed analysis of each of these factors within the context of Daubert, Joiner and Kumho Tire. In those jurisdictions that subscribe to the Daubert rationale, a clear understanding
of these cases is critical. By contrast,
in state jurisdictions that do not follow Daubert,
the practitioner still must contend with the test articulated in Frye v. United States,[5] or a combination of both the Daubert and Frye tests.
A. The Daubert Line of Cases
Any analysis of the evidentiary
standard applied to “junk science” and “junk expert testimony” must begin with
an understanding of Daubert, Joiner
and Kumho Tire. Clearly, these cases pose difficult questions when applied
outside the scientific disciplines.
Thus, it should be noted initially that junk science has been defined as
“jargon-filled, serious-sounding deception.”[6]
1. Daubert v. Merrell Dow Pharmaceuticals, Inc.[7]
In Daubert, the parents of children born
with defects allegedly caused by the anti-nausea drug, Bendectin, instituted an action against the manufacturer
of that drug. Procedurally, the defendant
moved for summary judgment on the issue of causation, contending that there was
no link between the use of Bendectin and the alleged birth defects. In support of its motion, defendant presented
the affidavit of a scientific expert.
Plaintiff countered this proof with affidavits of eight expert
witnesses who argued that there was, in fact, a causal link. The district court later granted the
defendant’s motion, and plaintiffs appealed to the Ninth Circuit Court of
Appeals. When affirming the district
court’s determination, the federal appeals court cited the seminal case of Frye v. United States,[8] noting that scientific testimony would
only be admitted if it were generally accepted in the relevant scientific
community.[9] Plaintiff then petitioned the United States
Supreme Court for review, arguing that Congress had supplanted Frye with the Federal Rules of Evidence. In particular, plaintiff cited Rules 104(a)
and (b) and Rule 702, which arguably liberalized evidentiary standards. These rules provide as follows:
Fed. R. Evid. 104(a):
Preliminary questions concerning the qualifications of a person to be a witness. . . or the admissibility of evidence shall be determined by the Court.
Fed. R. Evid. 104(b):
When the relevancy of evidence depends on the fulfillment of a condition of fact, the Court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
Fed. R. Evid. 702:
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise.
Recognizing the Congressional intent behind the Federal Rules of
Evidence, the Supreme Court acknowledged that the Frye court’s “rigid ‘general acceptance’ requirement would be at
odds with the ‘liberal thrust’ of the Federal Rules.”[10] With that premise, the Court defined the trial court’s
“gatekeeping” function and its obligation to exclude evidence that is based on
“subjective belief or unsupported speculation.”[11] The Court also articulated other relevant
factors to aid the deliberation of trial courts when deciding the reliability
of such evidence:
1. Can the theory or
technique be tested or has it been tested?
2. Has the theory or technique been subject to peer review and publication?
3. Is there a known or
potential rate of error?
4. Is the technique maintained by standards and controls?
5. Has the theory been
generally accepted?[12]
The Court emphasized, however, that these factors were but “general
observations” and not a definitive test.[13] The Court also confined its analysis to
scientific expert evidence; it would not address technical or other specialized
knowledge. The opinion thus left unresolved whether Daubert’s “gate keeping” function extended as well to other types
of expert testimony. In his dissenting opinion, Chief Justice William Rehnquist
clearly focused the challenge:
[D]oes all of the dicta
apply to an expert seeking to testify on the basis of ‘technical or other
specialized knowledge’ -- the other types of expert knowledge to which Rule 702
applies, -- or are the ‘general observations’ limited only to ‘scientific
knowledge’?[14]
Such remarks caused speculation by various commentators.[15] Furthermore, a significant split developed
among the various circuit courts which considered Daubert’s breadth of application to non-scientific based evidence.[16]
It should also be noted that the Supreme Court remanded the case to
the Ninth Circuit Court of Appeals. On
remand, the Ninth Circuit applied the Daubert
standard but found that the evidence was inadmissible. In addition, it noted that expert testimony
was presumptively unreliable if the research was performed in anticipation of
the litigation, rather than independent from it.[17]
2. General Electric v. Joiner[18]
The Daubert court also left unresolved the
standard of review to be applied by an appellate court when reviewing a trial
court’s ruling on the admissibility of evidence. In Joiner,
the Court addressed that issue. It also
resolved the conflict about Daubert’s
breadth.[19]
The plaintiff in Joiner had claimed that his cancer was caused
by exposure to PCB and chemical fumes.
Though the district court held that no causal link existed between the
exposure and the cancer, the Eleventh Circuit Court of Appeals reversed,
applying a de novo standard of
review. The United States Supreme Court later rejected this standard,
conditioning any revision of a district court’s determination upon a finding
that the district court abused its discretion.[20] Of significance, the Court reaffirmed the Daubert standard, albeit without the
clarification that had been anticipated:
[N]othing in either Daubert
or the Federal Rules of Evidence requires a district court to admit opinion
evidence, which is connected to existing data, only on the ipse dixit of the expert. A
court may conclude that there is simply too great an analytical gap between the
data and the opinion proffered.[21]
Subsequent to Daubert and
Joiner, confusion still existed among
the federal and state courts about which standard to apply.[22] Further, the Court did not answer the
question posed by Justice Rehnquist in Daubert:
whether the Court’s ruling applied to non-scientific and other technical
evidence. As a result, after Daubert and Joiner, the courts in the various circuits responded
differently. For example, the Second,
Ninth and Tenth Circuits held that Daubert
was limited to scientific testimony; it was not applicable to experience- based
testimony.[23] On the other hand, the First, Fourth and
Eleventh Circuits allowed district judges to review non-scientific expert
evidence, but they were without recourse to the Daubert factors.[24] In contrast, the Fifth, Sixth, Seventh and
Eighth Circuits authorized the application of Daubert factors to expert evidence, both scientific and
non-scientific in nature.[25]
3. Kumho Tire Co. v. Carmichael[26]
Recognizing the
foregoing conflict, the Supreme Court in Kumho
Tire confronted the issue about
whether the district court’s “gatekeeping” function applied to scientific,
non-scientific, and other technical evidence.
In Kumho Tire, plaintiffs were
injured when the tire blew out and collapsed on their minivan. They sued the tire manufacturer claiming that
either a design or manufacturing defect caused the blowout. In support of their liability theory,
plaintiffs offered the testimony of a tire expert. On motion of the defendant, the trial court
excluded the tire expert’s testimony, citing the Daubert factors (general acceptance, rate of error, peer review and
publication). The Eleventh Circuit then
reversed, holding that Daubert was
limited to scientific evidence and did not apply to the tire expert’s
testimony, since that opinion was skill or experience-based.[27] However, the United States Supreme Court
reversed, noting that the language of Rule 702 makes no distinction between “scientific”
knowledge and “technical” or “other specialized” knowledge. The Court reasoned
that the evidentiary rationale underlying the basic Daubert “gatekeeping” determination was not limited to “scientific”
knowledge. In so noting, the Court held
as follows:
[W]e conclude that the trial judge must have considerable leeway in
deciding in a particular case how to go about determining whether particular
expert testimony is reliable. That is to
say, a trial court should consider the specific factors in Daubert where they are reasonable measures of the reliability of
expert testimony.[28]
Citing Joiner, the Court further determined
that the appellate courts must apply an abuse of discretion standard when
reviewing the trial court’s decision to admit or exclude expert testimony.[29] Applying such a standard, the Court concluded
that the testimony of the plaintiffs’ tire expert was properly excluded by the
trial court. Consequently, there was no
abuse of discretion.
Several recent
cases have considered the application of Daubert
standards, post-Kumho Tire. In Jaurequi
v. Carter Manufacturing Co.,[30]
a case involving the testimony of a mechanical engineer and human factors
expert regarding safety barriers and improper safety warnings, the Court
observed that, when applying the Daubert standard
to any type of expert testimony, trial courts maintain great flexibility in
adapting the Daubert analysis to the
facts of each case.[31] Further, a trial court does not abuse its
discretion in excluding evidence that is nothing more than “unabashed
speculation.”[32]
As noted above,
the United States Supreme Court also refused to grant the plaintiff’s petition
for certiorari in the case of Moore v.
Ashland Chemical, Inc.[33]
That case involved a doctor’s causation testimony based on the clinical
assessment and diagnosis of the plaintiff’s illness after exposure to chemical
toxins. The district court excluded the
testimony, positing Daubert and
Federal Rule of Evidence 702. The Fifth Circuit reversed, however, noting that
the Daubert factors do not apply to
clinical medicine which is not hard science.
Subsequently, an en banc court
abandoned the panel determination and held that in the Fifth Circuit there is
no such distinction; Rule 702 and Daubert
apply to both scientific and non-scientific expert testimony.
In Johnson v. District of Columbia,[34]
an infant had suffered scalding injuries.
Plaintiffs claimed that a water heater malfunction caused the injuries,
and the court considered non-scientific evidence to support that claim. When defendant filed a motion in limine, the trial court excluded the
testimony of plaintiff’s plumbing expert on grounds that his experience was
limited to the installation of water heaters; he had no experience in the
design or control function and was unfamiliar with commercial heaters. On review, the court of appeals observed that
as long as the trial judge had sufficient facts to assess the qualifications of
an expert, the judge could, without a hearing, admit or exclude expert
testimony based on facts of record or facts submitted by offer of proof.[35] These recent cases indicate that the courts
in various jurisdictions have begun to refine the application of Kumho Tire and the procedural mechanisms necessary to resolve such
issues.
B. Frye v. United States[36]
Under Frye, the sole
determinant of an expert’s testimony is reliablity. Therefore, admissibility depends upon whether
the expert’s testimony is based on scientific principles or procedures, or
whether the testimony has sufficiently gained “general acceptance” in the
specific field to which the principles or procedures relate.[37] Decided over seventy-five years ago, the
attorneys representing the plaintiff Frye sought admission of an expert’s
testimony on the reliability of a systolic blood pressure test to disprove the
plaintiff’s commission of murder. The
federal court excluded the offer of proof because the test had not “gained
general acceptance in the particular field to which it belongs.” Therefore, the procedure was inadmissible
because it was “experimental” as opposed to “demonstrable.” The Frye
standard is often considered less flexible than the Daubert standard. Under Frye, the party proffering the
scientific evidence must conclusively demonstrate general acceptance. If the
proof is accepted only by a minority of scientists in the applicable or
relevant field, such expert proof would be excluded. By contrast, under Daubert, the use of proof accepted only by a minority of scientists
would provide a basis to impeach the expert witness.[38]
III.
A. State Court
1. Scientific
Testimony
New York state courts have not yet adopted the Daubert standard, as
refined by Joiner or Kumho Tire, as they apply to scientific
testimony. Specifically, the New York
Court of Appeals has not embraced the Daubert
standard of scientific reliability; instead, it has retained the Frye “general acceptance” test. In People
v. Wesley,[39]
the court merely noted in a footnote that Daubert was not applicable in the case and that, under Frye, the particular procedure need not
be unanimously “endorsed” by the scientific community if it were “generally
accepted as reliable.”[40]
The Frye standard earlier
had become the basis for New York’s two-part test on the admissibility of
scientific expert testimony.[41]
The first prong of the test necessitates that the proffered expert’s testimony
be based upon scientific knowledge and skill that are not within the scope of
the juror’s ordinary training or intelligence.
The expert simply must have gained knowledge or expertise (formal or
otherwise) that will assist the jury in interpreting the issues before it. If the proffered proof is based solely on
common knowledge or intelligence, the testimony is excluded because the jury
could form a reasonable opinion of its own.
The second prong requires that the expert’s testimony be based on
scientific principles or procedures under the “general acceptance” test.[42] It is within the providence of the trial
court to determine whether the expert’s testimony is both necessary to assist
in the jury’s interpretation and has gained general acceptance. After that determination is made, the weight
given to the expert’s testimony is left to the jury. The court traditionally has conducted a “Frye Hearing,” during which each party
presents its inventory position to support or challenge admissibility. However, at least one court has determined
that such a hearing is not necessary and has decided expert admissibility
without a formal hearing.[43]
2. Non-scientific Testimony
The courts in New York have consistently held that the Frye “general acceptance” test is not
applicable to non-scientific or non-novel evidence.[44] In the case of Wahl v. American Honda Motor Co.,[45] the court considered the testimony of
an engineer regarding the design defects of an ATV. It subsequently found that: “[I]nasmuch as the testimony . . . is that of
an engineer, and . . . is based upon . . ., recognized technical or other
specialized knowledge, the court finds that the stricter general acceptance
standard of Frye is not
applicable. The Court will apply the
reliability standard as derived from Daubert
and Kumho Tire.”[46]
Another judge, in the case of Clemente
v. Blumenberg,[47] questioned the continued application of
Frye to scientific and non-scientific
expert testimony as well, noting:
[T]he accelerated pace at which science travels is today far faster
than the speed at which it traveled in 1923 when Frye was written.
Breakthroughs in science which are valid may be relevant to a case
before the courts. Waiting for the
scientific community to ‘generally accept’ a novel theory which is otherwise
valid and reliable as evidence may deny a litigant justice before the court.[48]
When considering the testimony of a biomedical engineer, the court
determined admissibility under a combination of both the Frye and Daubert
standards as follows:
[T]his court finds that the proffered biomedical engineer is qualified as an expert in biomedical engineering based upon his professional training and may render an opinion as to the general formula of forces upon objects.
However, he may not render an opinion based upon his report and
testimony at the Frye hearing because
the source of the data and the methodology employed by him in reaching his conclusion
is not generally accepted in the relevant scientific or technical community to
which it belongs.[49]
The court
further held:
[A]pplying the Daubert/Kumho
factors . . . this court finds that the data and the methodology employed by
the biomechanical engineer are not scientifically or technically valid.[50]
In addition
to these findings, the court observed:
A trial judge’s role as a gatekeeper of evidence is not a role
created by Daubert and rejected by
the Court of Appeals; it is an inherent power of all trial court judges to keep
unreliable evidence (“junk science”) away from the trier of fact regardless of
the qualifications of the expert. A
well-credentialed expert does not make invalid science valid merely by
espousing an opinion.[51]
The obvious impact of the holding in Clemente is that at least one judge is willing to move away from
the rigors of Frye to embrace a more
liberal approach.
B. Federal Court
Since the Supreme Court’s decision in Daubert, there have only been two federal court cases that have
dealt with the Daubert/Kumho
standards in New York. In Gray v. Briggs,[52] a case which involved a dispute between
an attorney and former law firm employees who had participated in the firm’s
pension plan, the plaintiff alleged a
breach of fiduciary duty in violation of the Employee Retirement Income
Security Act (ERISA). Plaintiff had
retained an expert who asserted, among other things, that defendants had
violated ERISA, made speculative personal investments, and violated industry
standards against churning. The
defendants challenged the plaintiff’s expert and moved to preclude the expert’s
testimony. Citing Kumho Tire, the court rejected the expert’s testimony and
accompanying report on various grounds.
Among others, these included:
1. the
testimony was outside the expert’s expertise;
2. the
expert lacked qualifications to express an opinion for which his testimony was
offered;
3. the expert’s opinion was tantamount to
strained speculations and bare legal conclusions; it was without sufficient
evidentiary basis to be helpful to the court or reliable.[53]
In applying the Kumho Tire standard, the court determined that under Federal Rule
of Evidence 702, expert testimony is admissible when it will assist the trier
of fact to understand the evidence or to determine a fact in issue. Furthermore, an expert must be qualified to
testify (i.e., have sufficient knowledge, skill, experience, training or
education). As noted in Kumho Tire, the expert must have
“sufficient specialized knowledge to assist the jurors ‘in deciding the
particular issue in the case.’”[54]
Another district court judge similarly considered Daubert and its progeny in the case of Grdinich v. Bradlees,[55] which involved a claim by a plaintiff who was injured while shopping at defendant’s store when ironing boards fell from a display case. The plaintiff had retained an expert to testify that defendant ignored or failed to follow industry guidelines applicable to self-service department stores. Defendant challenged the admissibility of that expert’s testimony. Citing the “gate-keeping” function articulated in Daubert and Kumho Tire (application of Daubert to technical and other specialized knowledge), the court noted that it must decide “whether this particular expert [has] sufficient specialized knowledge to assist the ‘jurors in deciding the particular issue in the case.’”[56] The court then precluded the expert testimony because none of the Daubert factors, including that of “general acceptance” in the relevant expert community, were present. There were no countervailing factors operating in favor of admissibility which could outweigh the factors identified in Daubert.[57] As a result, the testimony was excluded because it was neither reliable nor relevant.
IV.
Procedural Attack
Justice Stephen Breyer, in his concurring
opinion in Joiner, made this
interesting observation:
[J]udges have increasingly found in the Rules of Evidence and Civil
Procedure ways to help them overcome the inherent difficulty of making
determinations about complicated scientific or otherwise technical
evidence. Among these techniques are an
increased use of Rule 16's pretrial conference authority to narrow the
scientific issues in dispute, pretrial hearings where potential experts are
subject to examination by the Court, and the appointment of special masters and
specially trained law clerks.[58]
The procedural mechanisms referenced by Justice Breyer are generally initiated by and lie within the trial court’s discretion; these often occur well into the litigation process. In light of this fact, defense counsel should ask whether any procedural mechanisms are available that can be implemented early in the litigation process to facilitate the economies of handling these types of cases.
Many of the cases will involve causes of action based in torts and
products liability. Moreover, critical
expert evidence to be presented by the plaintiffs and attacked by the
defendants will involve causation issues (i.e., a causal connection between the
injuries or damages and the defendants’ alleged conduct).[59] Thus, it behooves the parties and the court
to develop a procedural mechanism for challenging the causation issues sooner
rather than later. In recent years, such
a procedural device has been developed in toxic tort and environmental cases;
it should be tested as well within the context of all exposure types of
cases. To this end, the case of Lore v. Lone Pine Corp.[60]
is instructive.
The Lore case involved a
toxic tort claim brought against a landfill operator and the generators and
haulers of toxic materials to that site.
The plaintiffs alleged that their property values were depreciated
because of the landfill proximity. They
also claimed damages for personal injuries emanating from their exposure to
various toxic substances. The defendants
in Lore served an order to show cause
hoping to generate a case management order requiring the plaintiff to furnish
“basic facts” on the causation issues in order to support their claims of
personal injury and property damage. The
order sought by the defendants has come to be known as a “Lone Pine Order.” When the
plaintiffs failed to provide the expert evidence required by the case
management order, consistent with New Jersey state procedural rules (Rules
4:23-2 (b)(3) and 4:37-2(a)), the court dismissed the plaintiff’s complaint
with prejudice. It noted: “The Court is not willing to continue
the instant action with the hope that the defendants eventually will capitulate
and give a sum of money to satisfy plaintiffs and their attorneys without
having been put to the test of proving their cause of action.”[61]
Other courts have refined and modified the Lone Pine Order. They
require plaintiffs to specify the amount of substance or chemical to which they
were exposed as well as expert medical opinions to eliminate other causes.[62] In Grant
v. E.I. DuPont De Nemours & Co.,[63] for example, the court required
specific dates of exposure to toxic substances.[64] In several other recent Lone Pine Order cases, courts have considered the problem of
plaintiffs’ failure to provide any proof of causation at a relatively early
stage in the litigation process. They have reinforced the concept that a
plaintiff should not even file a lawsuit until there is adequate reason to
believe that the plaintiff is injured and that the defendant caused that
injury.[65]
The use of Lone Pine Orders
has also been recognized for achieving judicial efficiency, regulating
complicated evidentiary issues and avoiding duplicated efforts.[66] Therefore, when faced with evidentiary and
expert issues in this type of litigation, defense counsel should, early on in
the process, seek a case management order that requires a prima facie showing
of causation based upon expert evidence that satisfies the appropriate
standard -- Daubert, Joiner and Kumho
or Frye.
V.
“Junk science” and the “junk expert” must be challenged early in the litigation process to preclude the testimony of witnesses with specious credentials and to thwart frivolous and speculative litigation. The plaintiffs’ bar should be put to the causation test. It should also be required to provide the defense with evidence concerning the qualifications, reliability and relevance of its expert’s opinion well in advance of trial. Such an approach will help control the litigation and curb settlement costs. A final caveat requires that counsel understand the scope of substantive and procedural rules to design a proactive approach.
[1] 509 U.S. 579 (1993).
[2] 522 U.S. 136 (1997).
[3] 526 U.S. 137 (1999).
[4] For an excellent discussion of this area, see Mark R. Hall, Applying Daubert to Medical Causation Testimony by Clinical Physicians, 14 Toxics L. Rep. 543 (1999), providing a cogent analysis of the case of Moore v. Ashland Chem., Inc., 151 F.3d 269 (5th Cir. 1998) (en banc), cert. denied, 526 U.S. 1064 (1999).
[5] 293 F. 1013 (D.C.Cir. 1923).
[6] Peter Huber, Galileo’s Revenge: Junk Science in the Courtroom (1991); see also Erica Beecher-Monas, Blinded by Science: How Judges Avoid Science in Scientific Evidence, 71 Temp. L.Rev. 55 (1998). For an excellent discussion of the Daubert progeny, see Nell E. Mathews & Leondra M. Hanson, Daubert After Kumho Tire: How the Gatekeeper Evaluates the “Non-Scientific” Expert, Defense Research Institute Business Litigation 131 (May 1999); Scott R. Jennette, Attacking the Plaintiff’s Hazardous Expert in Post-Kumho Era, 41 For The Defense 33 (May 1999); Jonathan M. Hoffman & Bert Black, Old Tires and New Limbs: The Effect of Kumho Tire on Expert Testimony, 27 Prod. Safety & Liab. Rep. (BNA) 354 (Apr. 2, 1999).
[7] 509 U.S. 579 (1993).
[8] 293 F. 1013 (D.C.Cir. 1923).
[9] Daubert, 509 U.S. at 588.
[10] Id.
[11] Id. at 590.
[12] Id. at 593-94.
[13] Id. at 593.
[14] Id. at 600.
[15] See generally B. Black, J.M. Hoffman, J.F. Dunbar, C.A. Hogan, and G.W. Lavender III, The Law of Expert Testimony - A Post-Daubert Analysis in Expert Evidence, A Practitioner’s Guide to Law, Science and the FJC Manual 9, 47 (Bert Black & Patrick W. Lee, eds., 1997).
[16] See discussion infra, p.9.
[17] Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311(9th Cir. 1995).
[18] 522 U.S. 136 (1997).
[19] For a discussion of which circuits applied the abuse of discretion standard of review or the de novo standard, see United States v. Jones, 107 F.3d 1147 (6th Cir. 1997), cert. denied, 521 U.S. 1127 (1997).
[20] Joiner, 522 U.S. at 137.
[21] Id. at 146.
[22] For a discussion of the standard adopted by the various states, see Nell E. Mathews & Leondra M. Hanson, supra note 6, at 150.
[23] See Iacobelli Const. v. County of Monroe, 32 F.3d 19 (2d Cir. 1994); Tamarin v. Adam Caterers, Inc., 13 F.3d 51 (2d Cir. 1993); McKendall v. Crown Control Corp., 122 F.3d 803 (9th Cir. 1997); Compton v. Subaru of Am., 82 F.3d 1513 (10th Cir. 1996), cert. denied, 519 U.S. 1042 (1996).
[24] See Bogosian v. Mercedes-Benz of N. Am., Inc. 104 F.3d 472 (1st Cir. 1997); Michigan Millers Mut. Ins. Co. v. Benfield, 140 F. 3d 915 (11th Cir. 1998).
[25] See Watkins v. Telsmith, Inc., 121 F.3d 984 (5th Cir. 1997); Smelser v. Norfolk S. Ry. Co., 105 F. 3d 299 (6th Cir. 1997), cert. denied, 522 U.S. 817 (1997); Deimer v. Cincinnati Sub-Zero Prod., 58 F.3d 341 (7th Cir. 1995); Cummins v. Lyle Indust., 93 F.3d 362 (7th Cir. 1996); Peitzmeier v. Hennessy Indus.,Inc., 97 F. 3d 293 (8th Cir. 1996), cert. denied, 520 U.S. 1196 (1997). For a discussion of the conflict among the circuits, see Jonathan M. Hoffman & Bert Black, supra note 6, at 356-59.
[26] 526 U.S. 137 (1999).
[27] Carmichael v. Samyang Tires, Inc., 923 F. Supp. 1514, 1521-22 (S.D. Ala. 1996), rev’d, 131 F.3d 1433 (11th Cir. 1997).
[28] Kumho Tire, 526 U.S. at 152.
[29] Id.
[30] 173 F.3d 1076 (8th Cir. 1999).
[31] Id.
[32] Id.; see also Peitzmeier v. Hennessy Indus., Inc., 97 F.3d 293 (8th Cir. 1996), cert. denied, 520 U.S. 1196 (1997).
[33] 151 F.3d 269 (5th Cir. 1998), cert. denied, 526 U.S. 1064 (1999).
[34] 728 A.2d 70 (D.C. App. 1999).
[35] Id. at 75.
[36] 293 F. 1013 (D.C. Cir. 1923).
[37] Id.
[38] See Castrichini v. Rivera, 669 N.Y.S.2d 140 (Sup. Ct. 1997).
[39] 83 N.Y.2d 417, 611 N.Y.S.2d 97 (1994).
[40] Id. at 462. See also People v. Wernick, 674 N.E.2d 322 (N.Y. 1996); People v. Green, 683 N.Y.S. 2d 597 (App. Div. 1998); People v. Roraback, 662 N.Y.S.2d 327 (App. Div. 1997), appeal denied, 691 N.E.2d 649 (N.Y. 1997).
[41] See People v. Hughes, 453 N.E.2d 484 (N.Y. 1983); People v. Philips, 692 N.Y.S.2d 915 (Sup. Ct. 1999).
[42] See Wernick, 674 N.E.2d 322.
[43] People v. Wesley, 83 N.Y.2d 417, 633 N.E.2d 451 (N.Y. 1994); see also Donaldson v. Central Illinois Public Serv. Co., 730 N.E.2d 68 (Ill. App. Ct. 2000).
[44] People v. Persuad, 665 N.Y.S.2d 671 (App. Div. 1997), appeal denied, 695 N.E.2d 724 (N.Y. 1998); People v. DiNonno, 659 N.Y.S.2d 390 (Sup. Ct. 1997).
[45] 693 N.Y.S. 2d 875 (Sup. Ct. 1999).
[46] Id. at 877-78.
[47] 705 N.Y.S.2d 792 (Sup. Ct. 1999); see also Timothy M. Tippens, Reforming Expert Testimony in New York Courts, N.Y.L.J., Apr. 6, 2000, at 1.
[48] Clemente, 705 N.Y.S.2d at 799.
[49] Id. at 800.
[50] Id.
[51] Id. at 799.
[52] 45 F. Supp.2d 316 (S.D.N.Y. 1999).
[53] Id.
[54] Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).
[55] 187 F.R.D. 77 (S.D.N.Y. 1999).
[56] Kumho Tire, 526 U.S. at 152.
[57] Grdinich v. Bradlees, 187 F.R.D. 77, 81 (S.D.N.Y. 1999).
[58] Joiner, 522 U.S. at 159 (citations omitted).
[59] See Portnoy v. Am. Tobacco Co., No. 96/16323, 1997 WL 638800 (N.Y. Sup. Ct., New York County, Sept. 26, 1997); Greater Hous. Transp. Co. v. Phillips, 801 S.W. 2d 523 (Tex. 1990); W. Page Keeton, Causation, 28 S. Tex. L. Rev. 231 (1986).
[60] No. L-33606-85, 1986 N.J. Super. LEXIS 1626 (N.J. Super. Ct. Nov. 18, 1986).
[61] Id. at 10; see also In re Love Canal Actions, 547 N.Y.S.2d 174 (Sup. Ct. 1989), aff’d as modified, 555 N.Y.S.2d 519 (App. Div. 1990); Grant v. E.I. DuPont de Nemours & Co., No. 91-55-CIV-4-H, 1993 WL 146634 (E.D.N.C. Feb. 17, 1993), aff’d, 1993 WL 146638 (E.D.N.C. Mar. 26, 1993); Kinnick v. Schierl, Inc., 541 N.W.2d 803 (Wis. 1995). See generally Don G. Rushing & Mary A. Lehman, Toxic Tort Litigation, Using Case Management Orders, 41 For The Defense 41 (June 1999).
[62] Hembree v. Litton Indus., Inc., No. B-C-90-6, at 9.18 (W.D.N.C. 1990).
[63] No. 91-55-CIV-4-H, 1993 WL 146634 (E.D.N.C. Feb. 17, 1993), aff’d, 1993 WL 146638 (E.D.N.C. Mar. 26, 1993).
[64] See also Zwillinger v. Garfield Slope Housing Corp., No. CV 94-4009, 1998 WL623589 (E.D.N.Y. Aug. 17, 1998); Cottle v. Superior Court, 5 Cal. Rptr. 2d 882, 886-87 (Ct. App. 1992); Atwood v. Warner Electric Brake & Clutch Co., 605 N.E.2d 1032, 1036 (Ill. App. Ct. 1992), appeal denied, 612 N.E. 2d 510 (Ill. 1993); Eggar v. Burlington N. R.R. Co., No. 89-159-BLG-JFB, 1991 WL 315487 (D. Mont. 1991), aff’d sub nom. Claar v. Burlington Northern R.R. Co., 29 F.3d 499 (9th Cir. 1994); Gallagher v. Fibreboard Corp., 641 So. 2d 953, 955 (Fla. Dist. Ct. App. 1994).
[65] In re Mohawk Rubber Co., 982 S.W.2d 494 (Tex. Ct. App. 1998); In re Colonial Pipeline Co., 968 S.W.2d 938 (Tex. 1998).
[66] See
D. Alan Rubin, Strategies in Litigating
Multiple Plaintiff Toxic Tort Suits, in Environmental
Litigation 122, 137-42 (Janet S. Kole, et al., eds., 1991).
(Author’s bio)
Mr. Segalla is a senior trial partner with the law firm of Saperston & Day, P.C., which has offices in Buffalo, Rochester and Syracuse, New York. He is also a member of the firm’s Management Committee where he has oversight responsibility for the insurance and self-insurance defense, insurance coverage and Y2K litigation practice groups. His practice involves insurance defense, coverage, bad faith and extra contractual liability, toxic tort, environmental and New York labor law litigation. A frequent writer and lecturer on these topics for many national and international organizations, he is co-editor with L. Russ of the renowned treatise Couch on Insurance 3d. In addition, he is the co-author of “Insurance Coverage Concerns for the Millennium” which was published by the Defense Research Institute in a compendium entitled The Defense Practitioner’s Guide to the Year 2000 Problem. He is Chair of the Insurance Law Committee of the Defense Research Institute and member of the Federation of Insurance and Corporate Counsel, where he serves as Vice Chair of the Toxic Tort and Environmental Law Committee and of the International Association of Defense Counsel.