A Victory for Daubert in Delaware

Contributed by Adam Tolin

As I watched endless documentaries this past week on the Kennedy assassination, I was surprised to learn how relatively recent scientific discoveries have disproved many conspiracy theories that did not seem so wild twenty or more years ago.

For example, the so-called “magic bullet” was not so magical.  Despite Oliver Stone’s insistence that the bullet must have defied physics by turning left, “in mid air,” and then turning right, it turns out that the seat alignment in the limousine was not all what Mr. Stone assumed, but rather entirely supports the “single bullet” theory.  Governor Connally’s jump seat was actually a bit lower than Kennedy’s and, as a result, the trajectory from the Texas School Book Depository to Kennedy and on to Connally was a direct line.  No magic needed.  Usually science is actually not stranger than fiction.

All of this reminded me of the vital role Daubert plays in product liability cases.  Indeed, as defense lawyers in product liability cases frequently argue, the law must trail the science.  The logic is sound.  Until science generally accepts that a medicine or a device causes the disease in question, liability should not attach.  There should be no rush to judgment in accepting an expert’s scientific opinions.  [Ironically, Mark Lane’s famous conspiracy novel was titled “Rush to Judgment.”  If he had just waited a few years and actually analyzed the scientific evidence, he might have realized he rushed to find a second shooter where likely one did not exist.  Of course that does not stop Mr. Lane from doubling down on his conspiracy theories to this very day.  Nevertheless, since I find the theories incredibly entertaining, I hope he, and others like him, continue the fun fight.].

Last week, the Supreme Court of Delaware put the kibosh on at least one “conspiracy theory.”  In Tumlinson v. Advanced Micro Devices, Inc., 2013 WL 6129791 (Del. Nov. 21, 2013), the Supreme Court of Delaware affirmed a ruling that an epidemiologist’s testimony was unreliable.  The opinion is worth a read because the conclusions reached by the expert in question were not incredible wacky – like Stone’s theory that virtually every branch of the government played a role in the assassination – but rather amounted more to educated speculation.  The court correctly concluded that the lower court did not abuse its discretion in finding that even highly educated speculation is insufficient to meet the reliability standard in Delaware.

In Tumlinson, two former workers at Defendant AMD brought suit against the company claiming that their children’s birth defects resulted from their exposure to chemicals at AMD’s Texas semiconductor plants.  After the close of discovery, AMD moved to exclude the testimony of the Plaintiffs’ expert, Dr. Linda Frazier, an epidemiologist who was to testify that Plaintiffs’ exposure to chemicals while working at AMD caused the birth defects. After holding a four-day Daubert hearing, the Delaware Superior Court ultimately excluded Dr. Frazier’s testimony concluding that her methodology was inadequate to establish causation.  The plaintiffs appealed.

Interestingly, the trial court had concluded that Dr. Frazier did cite reliable “foundational studies” that were subjected to peer review and demonstrated a potential link between the exposure of certain chemicals and birth defects.  Moreover, the plaintiffs had retained three other experts who “endorsed” Dr. Frazier’s methodology.

Nevertheless, the trial court concluded that Dr. Frazier’s methodology was unreliable.  Of critical importance was that Dr. Frazier “was unable to identify which specific chemicals, either individually or in combination, caused the Plaintiffs’ ‘very different’ birth defects . . . [and] also failed to distinguish between the Plaintiffs’ differing work environments and how those environments may have impacted exposure levels.”  Thus, the trial court concluded that Dr. Frazier’s opinion, though not required to actually be tested, lacked the specificity required to pass muster under Daubert’s “testability” factor.

Moreover, the trial court noted the importance of a “layered reliability analysis,” which requires that an expert’s opinion, even if based on reliable, peer-reviewed sources, demonstrate an independent indicia of reliability. The court dismissed the three other experts “endorsement” because their views in the midst of ongoing litigation is hardly “peer review” as envisioned by Daubert.  In short, the trial court excluded Dr. Frazier’s opinions because they “were made for this litigation.”

The Delaware Supreme Court affirmed, finding that the trial court did not abuse its discretion in concluding that “Dr. Frazier did not adequately ‘articulate her thought process, evaluation methods, and conclusions to establish reliability.’  The court based that conclusion on its evaluation of the studies and testimony presented, and their failure to “fit” this case…. After reviewing the record, we agree with the trial court’s finding that Dr. Frazier’s conclusory testimony did not adequately detail her methodology under either scientific technique.”

We applaud whenever a court discharges its gatekeeping responsibility and ensures that the law does not lead the science.  This is particularly so when the alleged injuries are tragic (birth defects) and the court further concludes that the expert was well qualified and had relied, at least in part, on a reliable “foundation” of scientific evidence.  Bad facts can make bad law.  In Tumlinson, the Delaware courts did not fall into that trap.  As for Mark Lane, I doubt Delaware courts would conclude his conspiracy theories are reliable.