On January 31, 2017, President Trump nominated Judge Neil Gorsuch to the U.S. Supreme Court. Although time will tell, this post assumes he will make it through the Senate confirmation process, and take his place at 1 First Street, Northeast. Currently, Judge Gorsuch sits on the United States Court of Appeals for the Tenth Circuit, having been appointed to same by President George W. Bush on July 20, 2006.  While at the Tenth, Judge Gorsuch issued two interesting decisions which may prove instructive as to how he views the Court’s role as the evidentiary gatekeeper[1] of expert testimony. A discussion of those two cases, and what they foretell with regard to “all exposures contribute” testimony follows.

Graves v. Mazda Motor Corp., 2010 WL 5094286.

This case arises out of Mrs. Graves’ trip to Hattiesburg, Mississippi. Upon arriving at the Hattiesburg airport, she picked up her rental car—a Mazda 6 with an automatic transmission. At the end of her stay and while en route to the airport to depart for home, Mrs. Graves got lost and pulled over to ask for directions. When exiting the car, Mrs. Graves left the engine running but thought she had placed the car’s shifter in “park.” As it turns out, the gear shifter was in “reverse” and, when she stepped out, the car rolled backwards, knocked her to the ground, and ran her over. Mrs. Graves sought damages from Mazda for the injuries she suffered, alleging that the company’s gear shifter was defectively designed. In support of her claim, she offered expert testimony from an expert human factors engineer. The district court, however, excluded the expert’s testimony as unreliable and then, given the absence of any other probative evidence of liability, granted Mazda’s summary judgment motion. On appeal, the plaintiff sought to undo the district court’s decision.

The district court noted that the expert failed to provide any data or industry standard, or to conduct any testing to confirm his view that Mazda’s gear shift design was defective. Instead, the expert’s proffered testimony that merely described how the Mazda shifter works, and from this, his leap to the conclusion that Mazda’s design fails to allow for “smooth” shifting and so is defective and unreasonably dangerous.

Judge Gorsuch, writing for the three judge panel (Kelly, J., Ebel, J.) noted that without any reference to data suggesting how “smoothly” an ordinary consumer would expect a gear shift to move, without any confirming evidence indicating how Mazda’s design might cause shifting troubles for ordinary drivers, without any reference to how engineering standards might have counseled against Mazda’s gear shift design, and without any other evidence suggesting its reliability, the district court was right to exclude the expert’s testimony. Judge Gorsuch noted that the expert did provide a list of “safety systems analysis” techniques that, he contended, Mazda should have used in assessing its design, but even here, the expert failed to offer any evidence suggesting that Mazda actually failed to use these techniques, or if it did, that these techniques would have led Mazda to conclude that it needed to pursue a different gear shift design.

BancFirst v. Ford Motor Co., 489 Fed.Appx. 264 (2012); 2012 WL 2899053.

This case arose out of a tragic accident, in which a child darted out of an intersection and was struck by a truck. The young victim’s guardian sought to establish that the driver counter-steered (something the driver denied) in order to place responsibility for the accident with Ford and their allegedly defective brakes. The district court, however, concluded that the expert did not meet the standards for admissible expert testimony set forth in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and because the guardian lacked any other evidence suggesting Ford’s braking system was the cause of the accident, granted summary judgment.  The guardian appealed.

Judge Gorsuch, again writing on behalf of a unanimous three judge panel (Tymkovich, J., and Baldock, J.), agreed with the district court judge who found “simply too great an analytical gap between the data and the opinion proffered.” This was especially so given the driver’s concession that when he saw the victim dart into the intersection he didn’t counter-steer to the right but instead hit the brakes and turned hard to the left, only to have the truck spin counterclockwise and causing its right rear corner to hit the child. As Judge Gorsuch noted, this was easily understandable as steering right into the skid would have required the driver to turn the wheel toward the child, making an already counter-intuitive maneuver all the more so given his desperate wish to avoid hitting her.

Attempting to bridge the gap between his opinion and the driver’s unhelpful admission, the expert pointed to police photographs showing that the wheels of the truck were turned to the right after the accident. But, as the district court noted, there was no indication when the wheels were turned to the right, before or after the accident. Moreover, the expert’s testimony that driver education courses usually teach new drivers to counter-steer out of a slide, fails to include evidence that the driver was so taught, or that drivers tend to follow this training in the heat of the moment when doing so requires them to turn, seemingly paradoxically, toward a person they are seeking to avoid. A similar problem recurs with the expert’s reference to a study which shows the driver theoretically had enough time to make the counter-steer. Judge Gorsuch found even if the study stood for such a proposition, there was still no evidence that the driver did counter-steer, or that drivers tend to do so even when it requires them to turn back in the direction of a person with whom they are about to collide. In so doing, the Court excluded the expert testimony and granted Ford’s Motion for Summary Judgment.

All Exposures Contribute Testimony

Occupational diseases such as Acute Myeloid Leukemia, Mesothelioma, Byssinosis, Silicosis and Black Lung Disease have long latency periods, and often times follow multiple sources of exposure. Typically, the only viable defendants remaining at trial are those whose products are encapsulated in materials or used in a manner unlikely to cause a sufficient dose to lead to disease. To get around this evidence, plaintiffs’ experts often opine that “every exposure,” “every exposure above background,” or “total and cumulative exposure” substantially contributes to the development of the plaintiff’s disease. Often times experts also opine that “there is no known safe level of exposure and as such all exposures must be included in attributing causation.”  How courts handle such testimony has been discussed at length in this Blog, so will not be discussed here.  See e.g., Senter, Meghan, Another Blow to “Every Exposure” in Asbestos Litigation, January 5, 2017;  Cree, Jennifer, Causation Standard at Center of PA Supreme Court Asbestos Ruling, December 6, 2016; Moore, Elizabeth, Plaintiff’s Experts Barred from Offering “Any Exposure” Theory in Asbestos Lung Cancer Case, March 10, 2015.

The Graves and BancFirst decisions authored by Judge Gorsuch, may however, give us some insight as to how a Supreme Court Justice Gorsuch would handle the issue.  For example, Judge Gorsuch will not be swayed by the exceptional credentials held by many experts espousing such testimony. As he noted in Graves, … while … we appreciate and recognize the expert’s credentials and don’t doubt the value someone in his field can bring to defective design cases, the evidence he proffered in this case rests on no more than his say so—and that isn’t good enough to require its admission. “Nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence” based on only “the ipse dixit of the expert[,]” however well qualified he may be. ..” (citation omitted).  Similarly, as he noted in BancFirst, gaps between opinion and data, will inevitably result in the court’s exclusion of the testimony, … “an expert’s scientific testimony must be based on scientific knowledge, which ‘implies a grounding in the methods and procedures of science’ based on actual knowledge, not ‘subjective belief or unsupported speculation.’ (citations omitted).

Based upon the above a Supreme Court Justice Gorsuch will likely see the flawed methodology behind opinions that any exposure, no matter how slight, remote, or insignificant was a cause or substantial contributing factor to the development of disease. It appears he will be open to defendants’ arguments that such testimony is purely speculative, rests upon flawed methodology, and ultimately, cannot be said to be helpful to the trier of fact.  This will be especially so when presented with epidemiology discounting the no safe level standard, industrial hygiene evidence regarding specific products’ abilities to create exposures and the like.  If the Graves and BancFirst decisions are any indication, Justice Gorsuch takes his gatekeeper role very seriously, and will not be afraid to exclude junk science such as that referenced above.

[1] For a discussion of the court’s gatekeeper role, see Fed. R. Evid. 702; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).