Contributed by Adam Tolin
My favorite line from a movie is when Walter Sobchak said in The Big Lebowski, “For your information, the Supreme Court has roundly rejected prior restraint!!” As a defense lawyer, one of my favorite opinions to read is one where a court roundly rejects a plaintiff’s expert on Daubert grounds. Last week, the Fourth Circuit affirmed one such an opinion in a toxic court case.
Likely without the visceral anger that Mr. Sobchak portrayed, the Eastern District Court in Virginia, in Zellars v. NexTech Northeast, LLC, 895 F.Supp.2d 734 (E.D. Va. 2012), granted summary judgment to the defendants after concluding that all of plaintiff’s medical experts were excluded under Daubert, as each failed to meet nearly every requirement needed to establish reliability. Last week, the Fourth Circuit affirmed the opinion. (opinion is unpublished as of now but available at: http://www.ca4.uscourts.gov/Opinions/Unpublished/122267.U.pdf).
While the district court and Fourth Circuit opinions are filled with many potentially helpful applications of Daubert, one passage, in particular, caught my eye.
First some background about the case. The plaintiff was a supervisor at a Rite Aid store whose duties including reorganizing the products displayed in the store’s freezers. The defendant, NexTech, performed maintenance on an ice cream freezer and the technician added a type of Freon during the service call. A week later, the store manager called the county fire department claiming the employees were complaining of headaches and other symptoms. The fire department detected Freon in the air and a NexTech technician found a valve leaking refrigerant gas. The plaintiff went to the hospital and was diagnosed with a variety of conditions. She then sued NexTech for negligence and proffered a neurologist, a chemist, and a neurotoxicologist, to establish the exposure to the refrigerant gas caused her injuries.
The district court excluded all of the medical experts on various grounds. The one of particular interest concerns the neurologist, her treating physician. The board certified neurologist intended to testify that the plaintiff’s exposure to the refrigerant gas was a possible cause of her neurologic condition. While the court excluded this testimony on grounds of its lack of reliability (in her report, she concluded that the exposure was “the” cause but backed away at her deposition stating it was a “possible” cause), what was particularly noteworthy was the court’s rejection of the trained neurologist’s lack of expertise in refrigerant gas. The injury was a neurological one, but the court concluded that board certified neurologist was not qualified to testify on causation because she had no “specialized knowledge about the toxicity of refrigerant chemicals that would assist the fact finder on the question of whether exposure to such chemicals caused, or even could have caused” the alleged injuries. According to the trial court, the neurologist had “no training or expertise in toxicology or refrigerant chemicals . . . and the scope of her expertise does not encompass toxicology or chemical exposure. Therefore, [the chemist] is not qualified to offer specialized knowledge about the toxicity of refrigerants . . . [t]he limits of [her] specialized knowledge in this respect is apparent from her testimony that she needed to conduct an Internet search for articles on the topic posted on academic medical websites in order to develop her knowledge of exposure to refrigerants.”
The plaintiff argued that the neurologist’s testimony was bolstered by her reliance on the chemist and neurotoxicologist’s opinions but the district court concluded that such additional testimony did not relieve the neurologist’s burden of having the requisite expertise.
We have seen other trial courts stretch to permit experts to testify so long as such testimony is generally within their field of expertise. But the Fourth Circuit made clear that it endorsed a strict interpretation of relevant expertise. The Fourth Circuit concluded that the exclusion of the neurologist was appropriate because she “lacks specific training in the field in which she seeks to testify,” and that “[w]hile it is true that there is no prohibition on utilizing multiple experts to establish various components of a party’s case, this does not change Daubert’s command that an expert’s testimony must be based on “more than subjective belief or unsupported speculation . . .”
This defense lawyer abides.