Saturday, January 17, 2004

10th Circuit Approves Daubert Challenge Raised in Footnote

In an unpublished opinion, the Tenth Circuit has upheld the exclusion of a physician's expert testimony in an FTCA action arising from a vehicular accident. The Daubert objection was raised and adjudicated by methods that seem procedurally dubious, but the panel approved them. See Solorio v. United States, No. 02-4227 (10th Cir. Jan. 15, 2004) (Seymour, Briscoe, & Lucero, JJ.) (unpublished).

The facts: Plaintiff's decedent was killed when struck by a vehicle driven by a federal employee. The vehicle veered into a barricaded construction area, hit a dirt pile and cement barrier, and then struck and killed the victim. Shortly before the accident, the vehicle was observed swerving. Shortly after it, the vehicle's driver was observed in the throes of a seizure. The driver had no history of seizures. Did the accident's impact cause the seizure, as the plaintiff contended? Or did the seizure cause the accident, negating negligence, as the government claimed? The driver had no useful memory on the subject, and so both sides retained medical experts to support their respective positions.

The government moved for summary judgment on the negligence issue. Its opening summary judgment brief contained a footnote citing Daubert and stating: "Dr. Savia's subjective belief or unsupported speculation is inadmissible as expert testimony." But the government filed no separate motion to strike. Responding to the summary judgment motion, plaintiff did not address the government's footnoted objection, but did rely on the challenged expert's opinion. On reply, the government attacked the admissibility of the expert's testimony explicitly. At the summary judgment hearing, the district court invited argument on the Daubert issue. Two days later, without convening a separate Daubert hearing or any further proceedings, the district court issued an order excluding the expert's testimony and awarding summary judgment to the government. On appeal, the plaintiff argued surprise, but the Tenth Circuit panel concluded that the footnote placed plaintiff on sufficient notice, and upheld the district court's disposition.

Let's leave to one side the intriguing question whether expert testimony was truly necessary, on this fact pattern, to raise a triable issue of negligence. (No fact witness testified to a pre-accident seizure.) Far more troubling is the notion that an objecting party can trigger the entire Daubert process without even filing a motion in limine, simply by the casual insertion of an uninformative boilerplate footnote in a summary judgment brief. There is the lingering feeling that the proponent in this case did not receive that Process which was Due. Perhaps this will help persuade the world to give a second look at our proposed model local rule to govern Daubert proceedings.
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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.