Fourth Circuit Requires Explicit Daubert Findings Where Expert Testimony is Challenged on Grounds of Relevance and Reliability
September 10, 2021 By Steven J. Parrott
In Sardis v. Overhead Door Corp., __ F. 4th __ (4th Cir. 2020), 2021 U. S. App. LEXIS 24960 (August 20, 2021), the U.S. Court of Appeals for the Fourth Circuit reversed a $4.84 million jury verdict in favor of the estate of a worker killed when the handhold on a container used to ship an overhead door hood gave way, causing him to lose his balance and fall from the ladder rack of a truck, striking his head on the concrete floor 9 feet below. The Court of Appeals held that the district court committed error by admitting the testimony of Plaintiff’s packaging design engineer and warnings/human factors expert without conducting the analysis required under Daubert v. Merrell Dow Pharms., Inc., 509 U. S. 579, 113 S. Ct. 2786 (1993), where Defendant had challenged the admission of the testimony on grounds of relevance and reliability.
The Court noted that Fed. R. Evid. 702 permits expert testimony if the testimony is (1) helpful to the jury in understanding the evidence or determining a fact at issue, (2) “based on sufficient facts or data”, (3) “the product of reliable principles and methods”, and (4) the product of a “reliable application of those principles and methods” to the facts of the case. The Court emphasized that Rule 702 and Daubert impose “a special gatekeeping obligation” on the trial judge “to ensure that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand,” quoting Daubert, 509 U. S. at 597. The Fourth Circuit, quoting from Daubert, supra, 509 U. S. at 592-593, said that an expert’s opinion is relevant if it has “a valid scientific connection to the pertinent inquiry.” Reliability requires that the trial court ensure that an expert’s opinion is “based on scientific, technical or other specialized knowledge and not on belief or speculation.”
The Fourth Circuit stated that Daubert provides for non-exhaustive “guideposts” to aid in the required analysis as to whether an expert’s testimony is reliable: (1) whether the expert’s theory or technique “can be (and has been) tested”; (2) whether the theory or technique has been subject to prior review and publication; (3) “the known or potential rate of error” inherent in the expert’s theory or technique; and (4) whether the expert’s methodology is generally accepted in his field of expertise. The Court stated that the list “neither necessarily nor exclusively” applies to all experts in every case, recognizing that trial courts are given “broad latitude” to determine which of these factors (or other factors) “are reasonable measures of reliability in a particular case,” citing Nease v. Ford Motor Co., 848 F. 2d 219, 229 (4th Cir. 2017) quoting Kumho Tire Co. v. Carmichael, 526 U. S. 137, 153, 119 S. Ct. 1167 (1999). The Fourth Circuit made clear, however, that the “broad latitude” does not allow the trial court to delegate the issue of reliability of an expert’s testimony to the jury.
In Sardis v. Overhead Door, the district court had expressed “legitimate concerns” regarding the Plaintiff’s experts’ testimony, but dismissed Defendant’s arguments challenging the relevance and reliability of the testimony as going to the weight, not the admissibility of the testimony. The district court concluded that the admissibility issues raised by Defendant were solely subjects for cross-examination. The Fourth Circuitheld that it was error for the district court to fail to perform the Daubert analysis and to conclude that issues of relevance and reliability impacted only the weight of the experts’ testimony, not their admissibility. The Court observed that after the Supreme Court’s seminal decisions in Daubert and Kumho Tire Co., Rule 702 was amended to specifically “affirm the trial court’s role as gatekeeper,” citing Rule 702 advisory committee’s note to 2000 amendments. The Court explained that the importance of the gatekeeping function cannot be overstated because “expert evidence can be both powerful and quite misleading” quoting Daubert, supra, 509 U. S. at 592, 595. The Court stated that when admission of expert testimony is challenged, the trial court must determine relevance and reliability. The trial court must make explicit findings, whether by written opinion or orally on the record, as to the challenged preconditions to admissibility.
The Fourth Circuit stated that as with any evidentiary error, the appellate court must review the trial court’s failure to conduct the required Daubert gatekeeping analysis for harmless error and require reversal only where the admission of the evidence affected a substantial right of a party. The Court in Sardis v. Overhead Door reviewed the record from the district court and concluded that reversal was necessary because the two experts whose testimony was challenged were the only two experts whose testimony was offered to support Plaintiff’s claims. The Court determined that the Plaintiff’s packaging design engineer’s testimony did not meet the requirements of Rule 702 and Daubert because he had not performed any testing of his theory, and there was no objective basis for determining that his conclusions were the product of reliable principles or methodology. The Court said that the Plaintiff’s warnings/human factors expert’s testimony did not meet the requirements for admissibility because the expert conceded that there was no existing literature on how to test human factors and he had not done any hazard analysis of the container himself, he had not stated what warnings should have been on the container, and he cited to no research to support his theory that the Plaintiff’s decedent would have heeded warnings.
Note: In Rochkind v. Stevenson, 471 Md. 1, 236 A. 3d 630 (2020), the Maryland Court of Appeals adopted the Daubert standard to be applied in connection with determining the admissibility of expert testimony under MD RULE 5-702, abandoning the Frye – Reed standard.