§26.2 Admissibility of Testimony
The Case: Brown v. Crown Equipment Corp., 181 S.W.3d 268 (Tenn. 2005).
The Basic Facts: The plaintiffs brought products liability action against the defendants for injuries sustained while operating stand-up forklifts alleging the forklifts were defective.
The Bottom Line:
- “We granted appeal in this products liability action to determine whether the trial court erred in excluding as unreliable the testimony of the plaintiffs’ two expert witnesses, a mechanical engineer and a biomechanical engineer, and thereafter granting a directed verdict in favor of the defendant. We hold that the trial court erred in applying the nonexclusive list of reliability factors set out in McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn. 1997). These factors are not mandated in every case in which expert evidence is offered and should not be applied unless the factor or factors provide a reasonable measure of the expert’s methodology.” 181 S.W.3d at 272.
- “In McDaniel, we listed several nonexclusive factors that courts could consider in determining the reliability of scientific testimony, including
(1) whether scientific evidence has been tested and the methodology with which it has been tested; (2) whether the evidence has been subjected to peer review or publication; (3) whether a potential rate of error is known; (4) whether . . . the evidence is generally accepted in the scientific community; and (5) whether the expert’s research in the field has been conducted independent of litigation.
955 S.W.2d at 265[.]” Id. at 274.
- “In addition to the McDaniel factors, we have identified other nondefinitive factors that a trial court may consider in assessing the reliability of an expert’s methodology. One such factor is the expert’s qualifications for testifying on the subject at issue. Stevens, 78 S.W.3d at 835. This factor is applicable particularly where the expert’s personal experience is essential to the methodology or analysis underlying his or her opinion. We, however, caution that using this factor as the sole basis of reliability would result in a reconsideration of the Rule 702 requirement that the expert witness be qualified by knowledge, skill, experience, training, or education to express an opinion within the limits of the expert’s expertise. As a result, the expert testimony would become ‘perilously close to being admissible based upon the ipse dixit of the expert.’ [Robert J. Goodwin, The Hidden Significance of Kumho Tire Co. v. Carmichael: A Compass for Problems of Definition and Procedure Created by Daubert v. Merrell Dow Pharmaceuticals, Inc., 52 Baylor L. Rev. 603, 635 (2000)]; see Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (cautioning against the admission of expert testimony that is connected to existing data only through the ‘ipse dixit of the expert’). Furthermore, the trial court should distinguish between ‘‘the marginally-qualified full-time expert witness who is testifying about a methodology that she has not employed in real life’ and ‘the highly credentialed expert who has devoted her life’s work to the actual exercise of the methodology upon which her testimony is based.’’ [Sarah Brew, Where the Rubber Hits the Road: Steering the Trial Court Through a Post-Kumho Tire Evaluation of Expert Testimony, 27 Wm. Mitchell L. Rev. 467, 486 (2000)].” Id. at 274-75.
- “Another factor that we have identified is the connection between the expert’s knowledge and the basis for the expert’s opinion. Stevens, 78 S.W.3d at 835. The purpose of this factor is to ensure that an ‘analytical gap’ does not exist between the data relied upon and the opinion offered. Id.; see Gen. Elec. Co., 522 U.S. at 146 (holding that experts, who opined that the plaintiff’s exposure to certain chemicals and toxins in the workplace contributed to his cancer, relied upon studies that either were too dissimilar to the facts of the case or failed to link the cancer with the chemical exposure). This factor is important particularly when the expert’s opinions are based upon experience or observations as these areas are not easily verifiable. Stevens, 78 S.W.3d at 834. A trial court, however, may conclude that an expert’s opinions are reliable ‘if the expert’s conclusions are sufficiently straightforward and supported by a ‘rational explanation which reasonable [persons] could accept as more correct than not correct.’’ Id. (quoting Wood v. Stihl, [705 F.2d 1101, 1107-08 (9th Cir. 1983)]).” Id. at 275.
- “We continue to emphasize, however, that these factors are non-exclusive and that a trial court need not consider all of these factors in making a reliability determination. Rather, the trial court enjoys the same latitude in determining how to test the reliability of an expert as the trial court possesses in deciding whether the expert’s relevant testimony is reliable. Kumho Tire Co., 526 U.S. at 152. The objective of the trial court’s gatekeeping function is to ensure that ‘an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.’ Id. Furthermore, upon admission, expert testimony will be subject to vigorous cross-examination and countervailing proof. Stevens, 78 S.W.3d at 835; McDaniel, 955 S.W.2d at 265. The weight of the theories and the resolution of legitimate but competing expert opinions are matters entrusted to the trier of fact. See McDaniel, 955 S.W.2d at 265. With these principles in mind, we turn to the trial court’s rulings in the present case.” Id.
- “Accordingly, we conclude that the trial court erred in holding that application of all five of the McDaniel factors was mandated and in applying the McDaniel factors when the factors did not provide an adequate measure of the reliability of the methodologies employed by Mr. Johannson and Dr. Harris. During the trial, the trial court expressed reservations as to the reliability of the testimony of Mr. Johannson and Dr. Harris. We, however, are unable to separate these expressions from the trial court’s mistaken belief that it was required to apply all five of the McDaniel factors. Rather, a trial court need only apply those McDaniel factors that it finds reasonably measure the reliability of the particular expert’s methodology. Therefore, we conclude that the trial court erred in excluding the testimony of both Mr. Johannson and Dr. Harris.” Id. at 281.
Recent Cases: Land v. Barnes, No. M2008-001910-COA-R3-CV, 2008 WL 4254155 (Tenn. Ct. App. Sept. 10, 2008) (analyzing testimony of plaintiffs’ experts and holding trial court did not abuse its discretion in excluding expert testimony); McCutcheon v. TND Associates, L.P., No. E2007-01073-COA-R3-CV, 2008 WL 1899984 (Tenn. Ct. App. Apr. 30, 2008) (holding engineering expert who was part of firm employed to stabilize slope at issue in case should be treated the same as treating physicians and as such is not subject to disclosure requirements of Tenn. R. Civ. P. 26); Ward v. City of Lebanon, No. M2006-02520-COA-R3-CV, 2008 WL 1850864 (Tenn. Ct. App. Apr. 25, 2008) (holding expert witness should not have been permitted to testify as to his interpretation of a statute); Jones v. Shelby County Dept. of Corrections, No. W2007-00198-COA-R3-CV, 2008 WL 366151 (Tenn. Ct. App. Feb. 12, 2008) (holding expert testimony not required to prove cause of jail ventilation system collapse because common sense was sufficient for a person to find that shaking the vent is what caused it to fall); Sparks v. Mena, No. E2006-02473-COA-R3-CV, 2008 WL 341441 (Tenn. Ct. App. Feb. 6, 2008) (holding it was error to exclude plaintiff’s expert even though his testimony did not fall neatly within the McDaniel factors); Heaton v. Sentry Insurance Co., No. M2006-02104-COA-R3-CV, 2008 WL 110106 (Tenn. Ct. App. Jan. 9, 2008) perm. appeal denied (Aug. 25, 2008) (holding trial court did not abuse discretion in refusing to exclude testimony of medical expert because opinion was based on sufficient credible facts and data to satisfy the trustworthy requirement of Tenn. R. Evid. 703); Points v. Thompson, No. M2006-02425-COA-R3-CV, 2008 WL 110103 (Tenn. Ct. App. Jan. 9, 2008) (finding no abuse of discretion by trial court in admitting cross-examination testimony of plaintiff’s treating physician who testified that there were “literally thousands of things” that could cause plaintiff’s injury and that she could not testify as to causation with reasonable degree of medical certainty distinguishing from Hunter v. Ura).