David Randolph Smith

Expert Witnesses/Daubert

  • The Tennessee Supreme Court held the trial judge erred in applying all five McDaniel admissibility factors when the factors did not provide an adequate measure of the reliability of the methodologies employed by an engineer and a biomechanics expert, Charles Brown, et al. v. Crown Equipment Corp., No. W2002-02228-SC-R11-CV, (Tenn. 2005).
  • The Alaska Supreme Court ruled that Daubert analysis does not apply to the testimony of experts who are treating physicians and testify about treatment, medical conditions, or the standard of care. Marron v. Stromstead (Alaska 2005).
  • In Ruggerrio v. Warner-Lambert Company (2d Cir., Sept. 19, 2005), the Second Circuit Court of Appeals affirmed a summary judgment in a Rezulin case because the expert relied solely on the "differential diagnosis method" to prove causation. The Court found there was no reliable basis for the expert's opinion that Rezulin could cause or exacerbate cirrhosis of the liver: “Dr. Dietrich was unable to point to any studies or, for that matter, anything else that suggested that cirrhosis could be caused or exacerbated by Rezulin.”
  • In Clausen v. M/V New Carissa, 2003 WL 22208783 (9th Cir., March 4, 2003) the Ninth Circuit held that the absence of any scientific literature did not preclude an expert opinion that an oil spill from a tanker damaged oyster beds. The logic and reasoning in this opinion are worth a careful review on the Daubert issue.
  • In Hunter v. Ura, 2003 WL 22438444 (Tenn.Ct.App., Oct 28, 2003) the trial court held a Daubert/McDaniel evidentiary hearing to determine the reliability of expert causation opinion in a medical malpractice case. The court excluded one expert, but permitted the plaintiffs' anesthesia expert to testify.