Plaintiff’s accident was caused by “a systemic disregard for safety, at all levels” and by defendant’s “reckless disregard for safety of its customers and gross negligence.” Defendant “demonstrated…an overall course of conduct contrary to responsible manufacturing and marketing practice, and willful and wanton behavior,” and “had the company eschewed subterfuge, and instead confronted legitimate risk concerns and engaged in what it knew to be responsible corporate conduct,” the accident could have been avoided.

– Plaintiff’s Expert Stuart M. Statler, as quoted in Hayes v. MTD Products, Inc., No. 05CV-781, 2007 WL 2668589 (W.D. Ky. Sept. 6, 2007)

In today’s modern product liability litigation, plaintiffs frequently retain former government regulators as expert witnesses because juries often view these witnesses as credible and unbiased, and perhaps assume they reflect the views of their former agencies. These experts are asked to judge corporate conduct from the witness stand, and are often retained because they will offer legal conclusions couched in inflammatory language, thus giving plaintiffs a short-cut path to recovery.

When faced with this situation, the corporate defendant must attack the admissibility of the proffered testimony, and in doing so, should go beyond the traditional Daubert factors used to evaluate the reliability of experts. Specifically, when determining the admissibility of an expert’s proffered testimony, it is appropriate for courts to consider whether the expert is an “expert for hire” who prepared his or her testimony solely for litigation purposes, and whether the expert’s opinion has veered into legal conclusions and corporate character assassination.

Traditional Daubert Factors

When evaluating the admissibility of expert testimony, the court must first engage in a two-part analysis based on relevancy and reliability. Johnson v. Manitowoc Boom Trucks, Inc. 484 F. 3d 426, 429 (6th Cir. 2007) (Johnson II) (“In its gatekeeper’ role, the Court is “imbued with discretion in determining whether or not a proposed expert’s testimony is admissible, based on whether it is both relevant and reliable.”); Kumho Tire Company v. Carmichael, 526 U.S. 137, 147 (1999) (Federal Rule of Evidence 702 imposes a special obligation upon a trial judge to ensure that testimony is not only relevant, but reliable).

The relevancy test is applied to determine whether the testimony will assist the trier of fact to better understand the evidence or to determine a fact at issue. Fed. R. Evid. 702; Daubert, 509 U.S. 579, 591 (1993) (Rule 702 further requires that the evidence or testimony “assist the trier of fact to understand the evidence or to determine a fact in issue.” This condition goes primarily to relevance.).

The reliability prong of the analysis requires the court to consider several different factors, which were laid out by the Supreme Court in Daubert. Those factors include:

  • Whether a theory can and has been tested
  • Whether the theory or technique has been subjected to peer review and publication
  • The known or potential rate of error and the existence and maintenance of standards controlling the technique’s operation
  • The extent to which a known technique or theory has gained general acceptance within a relevant scientific community

Daubert, 509 U.S. at 593–94.

Hayes v. MTD Products, Inc. provides a recent example of how courts first look at the Daubert factors in determining the admissibility of expert testimony from former regulators testifying against a corporate defendant. Hayes v. MTD Products, Inc., No. 05CV-781-H, 2007 WL 2668589 (W.D. Ky. Sept. 6, 2007). Hayes is a product liability action where plaintiff alleged that decedent, George Hayes, was killed when a riding lawnmower rolled over and crushed him. Plaintiff’s expert witness, Stuart M. Statler, is a former government regulator who previously served as a commissioner on the Consumer Product Safety Commission (“CPSC”) from 1979 until 1986. Since that time, however, he has served as an expert witness in a vast range of product liability actions, essentially becoming a professional expert witness.

Statler proposed to testify that defendants should have installed a rollover protection system on their riding lawnmower and that failure to do so amounted to gross negligence. Id. at *1–2. Applying the Daubert factors, the court determined that the first factor, whether the theory had been tested, weighed against admitting Statler’s testimony because he did not conduct any testing to determine whether a rollover protection system would have prevented decedent’s injury. Id. at *2. Next, the court determined that the second factor, peer review and publication, also weighed against admitting the testimony because Statler did not publish his conclusions; they were not subject to peer review. Id. In fact, that Statler could not even cite to others’ publications that directly supported his position also was considered significant. Id.

As to the third and fourth factors, rate of error and general acceptance, the court acknowledged that they apply more narrowly to opinions based on a scientific testing process and thus were not applicable to the case at hand. Id. Based on the four traditional Daubert factors alone, the Court concluded there was justification to exclude Statler’s testimony.

Expert Testimony Prepared Solely For Litigation

Even though Daubert alone provided grounds for exclusion, the Hayes court also considered other factors in analyzing the reliability of Statler’s testimony in a way that may be instructive in other cases.

The Supreme Court was clear to point out that the Daubert factors were not meant to be an exhaustive list. Kumho Tire, 526 U.S. at 150 (these factors do not constitute a definitive checklist or test). An additional factor routinely recognized by the Sixth Circuit in evaluating the reliability of an expert witness is whether the proffered testimony was “prepared solely for litigation.” See Mike’s Train House, Inc. v. Lionel, L.L.C., 472 F. 3d 398, 408 (6th Cir. 2006) (“We have been suspicious of methodologies created for the purpose of litigation.”); Avery Dennison Corp. v. Four Pillars Enterprise Co., 45 Fed. Appx. 479, 484 (6th Cir. 2002) (noting that courts have found experts to survive Daubert scrutiny if they are proposing to testify about matters growing naturally and directly out of research they have conducted independent of litigation.); Smelser v. Norfolk Southern Ry. Co., 105 F. 3d 299, 303 (6th Cir. 1997) (noting that the Ninth Circuit has added an additional factor to assist the court in its inquiry – whether the expert has developed their opinions expressly for purposes of testifying.). Other Circuits, such as the Ninth Circuit, also have applied this factor as an addition to the traditional Daubert factors. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F. 3d 1311, 1318 (9th Cir. 1995) (Daubert II) (“If the proffered expert testimony is not based on independent research, the party proffering it must come forward with other objective, verifiable evidence that the testimony is based on “scientifically valid principles.”); Clausen v. M/V New Carissa, 339 F. 3d 1049, 1056 (9th Cir. 2003) (“In determining whether a proffer of scientific evidence is sufficiently reliable, we have previously held that one very significant fact to be considered is whether the experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying.”).

If an expert witness is considered to be an “expert for hire” whose testimony was prepared solely for the purpose of litigation, courts have held that the witness must do more to get their opinion admitted, by proferring some objective proof supporting the reliability of their testimony. In Johnson II, for example, the Sixth Circuit noted that plaintiff’s proposed expert was the “quintessential expert for hire,” having spent the “last twenty plus years of his life testifying as an expert in a wide variety of design defect cases” regarding “almost any machine,” including a “wheelchair, a deep fat fryer, a passenger elevator, an antique replica shotgun, a hay baler, a meat tenderizer, a forklift, a manure spreader, a lawnmower, a seat belt assembly, a log skidder, a concrete saw, a trampoline, and a tree stand.” Johnson II, 484 F. 3d at 427 (citing Johnson, 406 F. Supp. 2d 852, 858 (M.D. Tenn. 2005). The court affirmed the decision to exclude plaintiff’s expert witness, holding that “if a proposed expert is a “quintessential expert for hire,” then it seems well within the trial judge’s discretion to apply the Daubert factors with greater rigor… [and] the party proffering the expert must show some objective proof… supporting the reliability of the expert’s testimony.” Johnson II, 484 F. 3d at 435 (emphasis added).

Applying this standard to former government regulators offered as expert witnesses on behalf of plaintiffs, courts may require some form of objective proof that the regulator’s testimony is reliable beyond the fact that they have previously served on a regulatory agency. For example, in Hayes, the court recognized that although Statler was well-credentialed based on his years of service as a CPSC commissioner, he appeared to have become the “quintessential expert for hire” in the years since, and his testimony was prepared solely for litigation purposes as well. Hayes, 2007 WL 2668589, *3. As a result, the court required some form of objective proof to support the reliability of Statler’s testimony, such as extensive familiarity with the particular product at issue. Id. at *2–3.

However, Statler only claimed to be an expert on “consumer product safety generally, manufacturer and seller responsibility, and the consideration of dangerous products by the [CPSC]” rather than an expert on riding lawnmowers. Id. at *3. The court determined that this was not sufficient, and held that Statler lacked the objective proof necessary to give his “expert for hire” opinion credence. Id.; see also Oakberg v. Zimmer, Inc., Civil Docket No. 03-47-BU-SHE, U.S. Dist. Ct., Dist. Mont., Butte Div., Nov. 23, 2004 Court Order, 4, 14(b) (excluding the testimony of former FDA medical officer, Suzanne Parisian, the court held: “Parisian may not offer opinions relating to…the application of FDA regulations to Defendant’s operations…”); Barnes v. EBI Medical Systems, Inc., et  al., At Law No. 98-439, Spotsylvania County Circuit Court, Virginia, Jan. 26, 2001 Court Order (excluding the testimony of former FDA medical officer, Dr. Parisian, finding that “she is not qualified to render an opinion as to the adequacy of the warnings that accompanied the device at issue…”) (emphasis added).

Nature of Testimony Proffered Questionable

Courts also will analyze the actual testimony being offered when determining the admissibility of the plaintiff’s expert’s testimony, to see whether the opinion has veered improperly into bald legal conclusions and disparaging comments against the corporate defendant. Courts have rejected and should reject this type of testimony that provides no assistance to the trier of fact.

Again, Hayes serves as a prime example of this type of situation. Plaintiff’s expert, Statler, attempted to testify that the accident at issue was caused by a “systemic disregard for safety, at all levels, on the part of [defendant]” and that defendant’s failure to install a rollover protection system “flew in the face of any viable product safety program,” “violated…responsible manufacturing practice… and amounted to reckless disregard for safety of its customers and gross negligence.” Hayes, 2007 WL 2668589, *1–2. The court correctly pointed out that in addition to the expert’s other problems, this type of testimony was not admissible because it “deviates from opinions—which are certainly allowed from expert witnesses—to legal conclusion—which are reserved for the jury.” Id. at *3; see also Barnes, At Law No. 98-439 (order excluding the testimony of former FDA medical officer, Dr. Suzanne Parisian, holding that “her testimony was inadmissible legal opinion…”).

In addition to stating legal conclusions, Statler’s report went on to declare that “[h]ad the company eschewed subterfuge, and instead confronted legitimate risk concerns and engaged in what it knew to be responsible corporate conduct,” the accident could have been avoided. Hayes, 2007 WL 2668589, *3. This the court excluded as “unduly inflammatory,” noting that his proposed report “reads less like an expert’s unbiased assessment and more like counsel’s closing argument.” Id. In some respects, this part of Hayes may be most notable, in that the court put the brakes on plaintiff’s expert because of the outrageous nature of the opinion offered, when all too often, courts turn a blind eye to invective when clothed in the guise of expert testimony.

Conclusion

One must go beyond the traditional Daubert factors when challenging the admissibility of a former regulatory agent attempting to offer legal conclusions under the guise of expert opinion, and in the process, making inflammatory characterizations against the corporate defendant. One factor to consider is whether the expert is the proverbial “expert for hire” whose testimony was prepared solely for litigation. If so, they must offer objective proof to support the reliability of their testimony; simply having impressive credentials, such as serving on the CPSC or the FDA, may not be sufficient. Another factor that must be considered is the type of testimony being offered. Legal conclusions and inflammatory characterizations are not admissible for any expert, regardless of their background, and must be excluded.