Amicus Curiae Brief — White-Rodgers v. Bitler

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SUMMARY OF ARGUMENT

In Daubert, 509 U.S. at 589, the Court emphasized the

obligation of the trial court to serve as a “gatekeeper,” guard-

ing the courthouse against untrustworthy expert testimony.

The Court tasked district courts with screening proffered ex-

pert testimony to ensure that what is admitted “is not only

relevant, but reliable.” Jd.

The Court should grant certiorari in this case to preserve

both the letter and spirit of Daubert. It has been nearly fif-

teen years since the decision was rendered. As might be an-

ticipated over such a significant period of time, key differ-

ences have arisen in its interpretation. This case presents the

Court with a unique opportunity to provide guidance on not

one or two, but three key areas of division:

First, may a court consider an expert’s conclusions or

must the court focus solely on the expert’s methodology in

determining reliability? Second, does Daubert require a

heightened level of relevance beyond that ordinarily required

by Federal Rule of Evidence 401? Third, does an expert’s

failure to test a theory, when readily verifiable through test-

ing, render it unreliable and inadmissible?

If courts improperly interpret any one of these key areas,

Daubert is drained of its meaning and purpose. A court’s

improper interpretation of all three, such as here, can and did

render the Daubert truth-finding purpose meaningless.

The rulings of the Tenth Circuit in this case and other

courts taking a similar approach threaten to diminish

Daubert’s principal public policy purpose: to help assure that

the trier of fact determines the truth in cases involving expert

testimony. While some courts have closely adhered to

Daubert’s principles, others, such as the Tenth Circuit, have

adopted an interpretation that (1) disregards the reliability of

conclusions that do not flow from the facts of the case or the

expert’s analysis; (2) applies the minimal relevancy require-

ment favoring admission of ordinary evidence, rather than

the heightened requirement that expert testimony “fit” the

specific case; and (3) renders testing of scientific or technical

theones wholly optional, even when such verification is

readily available. The combination of the “wrong turn” on

all three issues, which occurred in this case, substantially un-

dermines Daubert’s gatekeeping process and truth-finding

purpose.

This Court has a strong interest in assuring that its sound

public policy be preserved. For these reasons, the Petition

for Writ of Certiorari should be granted.

ARGUMENT

I. THE LETTER, PURPOSE AND SPIRIT OF

DAUBERT

Expert witnesses are given extraordinary privileges in

court. Unlike lay witnesses, “an expert is permitted wide

latitude to offer opinions, including those that are not based

on firsthand knowledge or observation.” Daubert, 509 U.S.

at 592. Experts are unique in that their testimony may be

based on evidence that otherwise would not be admissible.

See Fed. R. Evid. 703. For example, experts are allowed to

disclose hearsay and other evidence for the limited purpose

of justifying their opinions, even if such information is in-

admissible for its truth. See Daubert, 509 U.S. at 593; see

also Engebretsen v. Fairchild Aircraft Corp., 21 F.3d 721,

728-29 (6th Cir. 1994); United States v. Sowards, 339 F.2d

401, 402 (10th Cir. 1964). In addition, courts may permit

expert witnesses to testify on the ultimate issue to be decided

by the jury. See Fed. R. Evid. 704(a).

Expert testimony is, by definition, outside the realm of an

ordinary juror’s scope of knowledge. As this Court recog-

nized in Daubert, “Expert evidence can be both powerful

and quite misleading because of the difficulty in evaluating

it.” Daubert, 509 U.S. at 595 (quoting Jack B. Weinstein,

Rule 702 of the Federal Rules of Evidence is Sound; It

Should Not be Amended, 138 F.R.D. 631, 632 (1991)). It

often addresses an “unfamiliar and esoteric field.” Tabatch-

nick v. G. D. Searle & Co., 67 F.R.D. 49, 55 (D.N.J. 1975).

Moreover, “[e]vidence that purports to be based on science

beyond the common knowledge of the average person that

does not meet the judicial standard for scientific validity can

mislead, confuse, and mystify the jury.” State v. O’Key, 899

P.2d 663, 678 n.20 (Or. 1995). In addition to overwhelming

the jury, and regardless of whether such testimony is labeled

scientific or technical, “[iJhere are a score of other concerns

associated with experts who lack a reliable basis for their

opinion, ranging from their introducing evidence that is oth-

erwise inadmissible to prolonging litigation and wasting time

and judicial resources.” David L. Faigman et al., How Good

is Good Enough?, Expert Evidence Under Daubert and

Kumho, 50 Case W. Res. L. Rev. 645, 648-49 (2000).

For these reasons, the Court recognized in Daubert, and

later in General Electric Co. v. Joiner, 522 U.S. 136 (1997)

and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999),

that expert testimony must be subject to a strong and careful

judicial gatekeeper function in order to protect a fundamental

tenant of justice: finding the truth. As this Court has recog-

nized, the gatekeeper function is not at odds with the jury

system. It helps it function properly. The Court instructed

district courts, in determining whether expert testimony is

reliable, to consider whether a theory or technique has been

tested; whether it has been subjected to peer review and pub-

lication; whether there is a significant potential rate of error;

whether there are standards controlling the technique’s op-

eration; and whether the theory or technique enjoys “general

acceptance” within a “relevant scientific community.”

Kumho Tire, 526 U.S. at 149-50 (citing Daubert, 509 U.S. at

592-94). In providing these factors, the Court required dis-

trict court judges to carefully screen expert testimony to en-

sure that it leads the jury to the truth. Daubert and its prog-

eny “changed the deference-to-the-field approzch . . . [and]

brought a scientific culture to the courtroom.” Faigman, su-

pra, at 655-56.

Coinciding with the Court’s decision in Daubert was the

emergence of toxic torts and the burgeoning use of experts in

civil litigation. See, e.g., Joseph Sanders, From Science to

Evidence: The Testimony on Causation in the Bendectin

Cases, 46 Stan. L. Rev. 1, 31-32 (1993) (citing studies that

found a 1500 percent rise in the number of experts testifying

in Cook County, Ilinois between 1974 and 1989, and finding

that experts testified in 86 percent of all cases, 95 percent of

personal injury cases and 100 percent of product liability

cases in a sample of California cases in 1985 and 1986). The

“battle of experts” continues today, and the need for Daubert

protections is as great, if not more so, as it was twenty years

ago. As Justice Breyer has recognized, “there is an increas-

ingly important need for law to reflect sound science.”

Stephen G. Breyer, The Interdependence of Science and

Law, 280 Sci. 537 (1998).

Bad science presented as fact by experts can result in re-

moval of beneficial products from the market and has had

profound effects on the American economy. See id. (recog-

nizing that scientific inaccuracy in the courtroom can force

the abandonment of products and “improperly deprive the

public of . . . important benefits — those surrounding a drug

that cures many while subjecting a few to less serious risks,

for example”). For instance, Bendectin, the product that

eventually led to the Court’s ruling in Daubert, was removed

from the market in 1983, leaving no Food and Drug Admini-

Stration-approved drug for the treatment of morning sickness

in early pregnancy. See Barbara Culliton, Merrell Dow

Stops Marketing Bendectin, 221 Sci. 37 (1983). Despite

overwhelming scientific evidence finding no link between

the drug and birth defects, several juries, adrift in a sea of

conflicting “expert” testimony, rendered multimillion dollar

awards after hearing expert evidence to the contrary. See

generally Sanders, supra; Richard B. Stewart, Regulatory

Compliance Preclusion of Tort Liability: Limiting the Dual

Track System, 88 Geo. L.J 2167, 2171-72 (2000). The Ben-

dectin situation is not unique. Silicone breast implant litiga-

tion forced Dow Corning to file Chapter 11 bankruptcy in

1995, despite the fact that medical evidence found no link

between implants and autoimmune disorders, cancer or any

other disease. See Marcia Angell, Science on Trial: The

Clash of Medical Evidence and the Law in the Breast Im-

plant Case 90-110 (1996) (authored by the executive editor

of the New England Journal of Medicine).

. hether or not courts exclude unreliable expert testi-

mony has a real impact on the outcome of such litigation.

See James T. Rosenbaum, Lessons from Litigation Over Sili-

cone Breast Implants: A Call for Activism by Scientists, 276

Sci. 1524 (1997) (discussing actions of some federal judges

to exclude expert testimony that was not scientifically sound

in the Bendectin and silicone breast implant litigation). Even

where there is no potentially broad harm to society, admit-

ting unreliable expert testimony can unjustly harm a defen-

dant where its product or conduct was not the cause of the

plaintiff's injury. The instant case is not alone in this crucial

respect.

Those seeking to evade Daubert may unduly emphasize

language in the Court’s opinion in which it explained that it

provided a “flexible” approach and did not intend to provide

a “definitive checklist or test” for determining whether a the-

ory or technique is reliable. 509 U.S. at 593-94. This quali-

fication, however, stemmed from the possibility that, in some

circumstances, testing for one or more of the other factors

discussed by the court might not be feasible or applicable in

a particular case. See Kumho Tire, 526 U.S. at 150. As

Members of this Court cautioned at that time, “the discretion

it endorses — trial-court discretion in choosing the manner of

testing expert reliability — is not discretion to abandon the

gatekeeping function.” Jd. at 158-59 (Scalia, J., concurring,

joined by O’Connor and Thomas, JJ.). Likewise, the Fifth

Circuit has warned, “Kumho Tire’s emphasis on the word

‘may’ should not be misunderstood to grant open season on

the admissibility of expert testimonv by permitting courts to

discretionarily disavow the Daubert factors.” Black v. Food

Lion Inc., 171 F.3d 308, 311 (Sth Cir. 1999).

It. THE TENTH CIRCUIT RULING FAILS TO UP-

HOLD THE PRINCIPLES OF DAUBERT

Here, there were two competing causes to explain the

explosion in the plaintiffs’ basement: (1) a gas leak stem-

ming from a “T-connector” in the copper line that supplied

the water heater and a space heater; or (2) a gas leak stem-

ming from a defective safety valve in the propane gas control

manufactured by the defendant. (Pet. App. at 35a.) In such

a Situation, Causation is the primary issue in the case.

The plaintiffs’ experts on causation, Donald Sommer and

Elden Boh, testified that the explosion resulted from an in-

termittent leak in the gas control. (See Pet. App. at 35a.)

They supported the plaintiffs’ theory that tiny copper sulfide

particles passed through or around the mesh screen posi-

tioned at the inlet and, combining with grease on the seat of

the safety valve, prevented the valve from fully shutting

when the pilot light went out. (See Pet. App. at 35a.) The

experts provided a perfectly reasonable hypothesis, an edu-

cated guess — but their testimony did not approach the level

of scientific reliability necessary to reach a jury as required

by this Court. In essence, their method was guesswork, their

testing was nonexistent, and their conclusion flowed from

this process.

The United States District Court for the District of Colo-

rado failed to fulfil! its obligation to serve as a gatekeeper.

In ruling on the defendants’ motions for summary judgment,

the District Court recognized that Mr. Sommer did not con-

duct any laboratory tests on the gas control safety valve or

inlet screen to validate his theory, but found instead that “de-

fendants place too much emphasis on a mechanical applica-

tion of the Daubert factors.” (Pet. App. at 48a.) The court

found that Daubert’s requirements were relaxed when an

expert’s theory is not new and novel. (See Pet. App. at 49a-

50a, 55a.) With respect to Mr. Boh, the district court found

that his personal experience and observations rendered his

testimony sufficiently reliable, even if he could not explain

how the valve malfunctioned or why the T-connector was

not responsible for the explosion. (See Pet. App. at 43a-

45a.) The district court’s analysis focused exclusively on the

grounds supporting the experts’ methodology, finding that

any gap between the analysis and conclusion went to the

weight of the testimony, not its admissibility. (See Pet. App.

at 54a.) The case, including the expert testimony, was sub-

mitted to a jury, which returned a verdict of approximately

$2.3 million.

The Tenth Circuit affirmed in an opinion that, if allowed

to stand, would steer district courts away from their gate-

keeping obligation. Bitler v. A.O. Smith Corp., 400 F.3d

1227, 1230 (2004). The Tenth Circuit’s signal would direct

district courts back toward the pre-Daubert days of letting

both good and bad expert testimony “go to the jury.” In ad-

dition to not applying its gatekeeper function to two experts’

unfounded conclusions, the Tenth Circuit found that

Daubert’s requirement that expert testimony “fit” the facts of

the case meant no more than that the evidence have the

minimal relevancy required by Federal Rule of Evidence

401. Id. at 1234. The Tenth Circuit reduced the importance

of testing to questions involving “causal relations among

reguiarly occurring natural phenomena” or novel theories.

Id. at 1235. The Tenth Circuit further found that although

“differential diagnosis” is a method ordinarily limited to the

medical context, “in this circumstance it is a valid scientific

technique to establish causation” — even though it is a highly

dissimilar situation. /d. at 1236. In sum, the Tenth Circuit

found that Mr. Sommer and Mr. Boh were permitted to tes-

tify as experts on the ultimate issue in the case based on a

highly relaxed Daubert review of their methodology and

conclusion.

Ill.OVER TWELVE YEARS OF LITIGATION HAVE

PRODUCED DIVISION AMONG THE CIRCUITS

ON THREE CRUCIAL ISSUES

Over the past twelve years, key differences have arisen in

the interpretation of Daubert. Courts have applied this

Court’s dictates with various levels of rigor. See Richard T.

Stilwell, Kuhmo Tire: The Battle of the Experts Continues,

19 Rev. Litig. 193, 210-23 (2000) (examining differences in

the evaluation of expert testimony among several Circuit

Courts). This case presents the Court with a unique opportu-

nity to provide guidance on three key areas of division. The

combination of these issues, each incorrectly decided below,

substantially undermines both the letter and spirit of

Daubert. First, may a court consider an expert’s conclusions

or must the court focus solely on the expert’s methodology

in determining reliability? Second, does Daubert require a

heightened level of relevance beyond that ordinarily required

by Federal Rule of Evidence 401? Third, does a proffered

expert’s failure to test a theory, when readily verifiable

through testing, render it unreliable and inadmissible?

A. May a Court Consider an Expert’s Conclusions or

Must the Court Focus Solely on the Expert’s

Methodology?

As a matter of basic logic in the search for the truth,

Daubert principles must be applied to both an expert’s meth-

odology and conclusions. Experts, unlike lay witnesses, are

permitted to reach conclusions on the ultimate issue in the

case. For that very reason, it is particularly important to en-

sure that experts’ conclusions flow from their methodology

before they are placed before the jury or finder of fact. To

paraphrase Justice Cardozo, conclusions in the air, so to

speak, will not do. See Palsgraf v. Long Island R.R., 162

N.E. 99, 99 (N.Y. 1928).

This Court recognized this key factor in General Electric

Co. v. Joiner when it found that “conclusions and methodol-

ogy are not entirely distinct from one another.” 522 US.

136, 146 (1997). When experts’ conclusions do not follow

from the science, data, or other facts supporting their theo-

ries, there is “simply too great an analytic gap” to admit the

testimony. /d.

The Tenth Circuit gave lip service to this Court’s clarifi-

cation in Joiner. The Tenth Circuit’s analysis focused exclu-

Sively on the experts’ methodology, disregarding that the ex-

perts’ conclusions did not, as a matter of good science, flow

from their theoretical analysis. The Tenth Circuit found that

just because it is well-documented that large copper sulfide

particles can cause leaks on water heaters without a mesh

inlet screen, the experts’ could conclude that tiny particles

could surpass the protective screen of the water heater at is-

sue and cause an intermittent gas leak. Even if the experts’

methodology is sound — a highly dubious assumption given

their lack of testing — their conclusion does not flow from the

evidence. This is the type of “analytic gap” that the Court

warned about in Joiner.

As Petitioners recognize, several circuit courts, appar-

ently confused by the conflicting language in Daubert and

Joiner, have focused solely on an expert’s-methodology in

determining reliability, while permitting conclusions, which

may lack reliability, to slip through the gate. (Pet. Writ Cert.

at 12-14.) Others have properly recognized that district court

judges should examine an expert’s ultimate conclusion “to

determine whether they could reliably follow from the facts

known to the expert and the methodology used.” (See Pet.

Writ Cert. at 14) (quoting Heller v. Siiaw Indus., Inc., 167

F.3d 146, 153 (3d Cir. 1999)); see also Nelson v. Tenn. Gas

Pipeline, 243 F.3d 244, 254 (6th Cir. 2001) (finding that al-

though there are commonly observed symptoms of PCB ex-

posure documented in scientific literature, the expert’s con-

clusion that PCB exposure caused the kinds of symptoms

experienced by the plaintiffs in the case at issue was not reli-

able); Moore v. Ashland Chem. Inc., 151 F.3d 269, 279 (Sth

Cir. 1998) (en banc) (noting that “several post-Daubert cases

have cautioned about leaping from an accepted scientific

premise to an unsupported one” and finding no scientific

support for the expert’s conclusion that exposure to any irTi-

tant at unknown levels triggers the asthmatic-type condition

experienced by the plaintiff).

The district court’s role as gatekeeper is compromised if

expert testimony is admitted because the methodology is ap-

parently sound, but the conclusion is detached from the facts

of the case, test results, or the expert’s analysis. This Court

should grant certiorari in this case to clarify that the spirit

and purpose of Daubert are compromised if courts scrutinize

only an expert’s methodology and not his or her conclusions.

B. Does Daubert Require a Heightened

Level of Relevance?

This Court has ruled than an expert’s testimony must

“fit” the facts of the case if it is to help the trier of fact.

Daubert, 509 U.S. at 591 (adopting the standard applied by

Judge Becker in United States v. Downing, 753 F.2d 1224,

1242 (3d Cir. 1985)). The Court explained that Rule 702

“requires a valid scientific connection to the pertinent in-

quiry as a precondition to admissibility.” /d. at 592. This is

a higher standard than the standard under Federal Rules of

Evidence 401 and 402, which governs relevance generally.

It recognizes that a district court has a special duty to exam-

ine purported expert testimony, testimony that by definition

is Outside the realm of an ordinary juror’s scope of knowl-

edge, to ensure it is based on reliable, scientific principles.

The Federal Rules were set up to tilt toward admissibility

of ordinary evidence. Federal Rules of Evidence 401 and

402 allow for broad admissibility of evidence so long as it is

“relevant,” meaning that it has “any tendency to make the

existence of any fact that is of consequence to the determina-

tion of the action more probable or less probable than it

would be without the evidence.” “The Rule’s basic standard

of relevance thus is a liberal one.” Daubert, 509 U.S. at 588.

When the admissibility of evidence offered by those pre-

sented as experts is at issue, the Federal Rules of Evidence

and this Court have recognized that additional safeguards are

warranted. In Daubert, the Court correctly observed that

while Rules 401 and 402 provide the “baseline” for admissi-

bility, when expert testimony is offered, the more precise and

rigorous requirements of Rule 702 speak to the issue. /d. at

587. In effect, Rule 702’s requirement that “scientific, tech-

nical, or other specialized knowledge . . . assist the trier of

fact to understand the evidence or to determine a fact in is-

sue” trumps the otherwise liberal relevancy requirements of

the Federal Rules. In sum, the “sevens” are different than

the “fours.” See id. at 591 (finding that in cases involving

expert testimony, Rule 702 “goes primarily to relevance”).

Despite this Court’s instructions, in determining the

admissibility of expert testimony here, the Tenth Circuit

quoted the broad relevancy standard of Rule 401. Bitler, 400

F.3d at 1234. It looked only to whether there was “a logical

relationship between the evidence proffered and the material

issue that the evidence is supposed to support,” id., rather

than at the presence of the closer “fit” mandated by this

Court. Due to its faulty analysis, the district court admitted

expert testimony based on products that had a different

design from the water heater at issue, and did not require the

experts to account for those differences or to validate their

theoxy. the Petitioner recognizes, the Second Circuit has also

mistakenly looked to Rule 401 to determin the relevancy of

expert testimony. (See Pet. Writ Cert. at 18.) In addition, it

appears that the Fifth Circuit has occasionally gone down

this erroneous path. See Mathis v. Exxon Corp., 302 F.3d

448, 460 (Sth Cir. 2002) (looking to Rule 401 to define rele-

vancy under Rule 702). Most courts, however, have taken

the approach that better protects against unreliable expert

testimony, requiring a higher standard — the “fit” discussed

in Daubert. (See Pet. Writ Cert. at 19-21); see also Group

Health Plan, Inc. v. Philip Morris USA, Inc., 344 F.3d 753,

760-61 (8th Cir. 2003) (finding expert testimony regarding

causation and damages was properly excluded when an ex-

pert’s work was thorough, sophisticated, and often well-

grounded in the relevant scientific literature, but discon-

nected from the plaintiff's theory of liability).

This case provides the Court with an opportunity to re-

solve this issue and reaffirm the higher bar that must be met

with respect to relevance applicable to admission of expert

testimony.

C. Does a Proffered Expert’s Failure to Test a

Theory, When Readily Verifiable Through Test-

ing, Render it Unreliable and Inadmissible?

In Daubert, the Court instructed that expert testimony

must be “ground{ed] in the methods and procedures of sci-

ence” to satisfy the standard of evidentiary reliability. 509

U.S. at 590. The Court recognized that, first and foremost,

what distinguishes theory or technique from admissible ex-

pert testimony is whether it can and has been tested. Jd. at

593.

It may surprise some to learn that an originator of the

scientific method was not a scientist, but none other than a

lawyer. In 1620, Sir Francis Bacon, a barrister who rose to

be Lord Chancellor of England under the rein of James I,

published his seminal work, Novum Organum. Bacon be-

lieved that “investigating and discovering truth” about nature

requires a repeating cycle of observation, hypothesis, ex-

perimental tests, and the need for independent verification.

Francis Bacon, Novum Organum (1620), reprinted in The

Advancement of Learning and Novum Organum 316-17, 332

(Justin McCarthy et al. eds., 1900).

The Court recognized these basic principles in Daubert

and emphasized the importance of testing as a “key” to de-

termining admissibility of expert testimony. 509 U.S. at 593.

“Scientific methodology today is based on generating hy-

potheses and testing them to see if they can be falsified; in-

deed, this methodology is what distinguishes science from

other fields of human inquiry.” /d. (emphasis added) (citing

scholarship recognizing the importance of testing in a scien-

tific inquiry). Other courts have recognized the importance

of this process in the courtroom. See, e.g., Moore, 151 F.3d

at 276 (“[T]he party seeking to have the district court admit

expert testimony must demonstrate that the expert’s findings

and conclusions are based on the scientific method, and,

therefore, are reliable. This requires some objective, inde-

pendent validation of the expert’s methodology.”); O'Key,

899 P.2d at 672 (“The scientific method is a validation tech-

nique, consisting of the formulation of hypotheses, followed

by observation or experimentation to test the hypotheses.”’).

It is not the case that testing is only important with re-

Spect to scientific evidence, and not technical or other spe-

cialized knowledge. In Kumho Tire, the Court found that

Rule 702 made “no relevant distinction between ‘scientific’

knowledge and ‘technical’ or ‘other specialized’ knowledge”

and found that the district court’s gatekeeping obligation ap-

plied equally to all expert testimony. 526 U.S. at 147. As

one commentator has recognized: “Although Rule 702 speci-

fies that an expert may be qualified through experience, the

Court’s emphasis in Daubert on ‘testability’ suggested thai

an expert should not be allowed to base a conclusion solely

on experience if the conclusion can be easily tested.” Mar-

garet A. Berger, The Supreme Court’s Trilogy on the Admis-

sibility of Expert Testimony, in Reference Manual on Scien-

tific Evidence 9, 15 (Fed. Jud. Ctr. ed., 2d ed. 2000)

An expert’s hypothesis, without testing, is rendered un-

supported speculation. As a well-respected scientific re-

search text states:

The most important feature of an hypothesis

is that it is a mere trial idea, a tentative sug-

gestion concerning the nature of things. Un-

til it has been tested, it should not be con-

fused with a Jaw. Unfortunately, in many

fields, especially on the border lines of sci-

ence, hypotheses are often accepted without

adequate tests. Plausibility is not a substi-

tute for evidence, however great may be the

emotional wish to believe.

E. Bright Wilson, Jr., An Introduction to Scientific Research

26 (1952) (emphasis in original). In effect, the expert has

thrown his or her hands in the air and exclaimed, “Gotcha!”

after developing a reasonable theory to explain an event, but

before verifying it. This is a common mistake that diligent

federal judges can protect against through exercising their

gatekeeping function.” As gatekeepers, judges have an obli-

gation to keep theories out of the courtroom unless and until

the expert’s hypothesis is tested. Reliable expert testimony

should not require a leap of faith.

Indeed, testing is particularly important in cases such as

this one. Here, there are two competing possible causes.

While not every guidepo.t outlined in Daubert will necessar-

ily apply to expert testimony based on engineering principles

and practical experience, here, the expert’s theory could have

been verified by an objective test — cheaply, easily and effi-

ciently.

The situation in this case is analogous to the process of

determining why a light bulb wi.l not turn on. There are at

least two likely potential causes. The bulb could be burned

out. Alternatively, the bulb could be loose in the socket.

Here, the “experts” declared to a jury that the light bulb was

burned out without first shaking the bulb or attempting to

tighten it. In such a situation, testing should be required and

this Court should say so.

? As college students are instructed in introductory level courses,

“{tJhe most fundamental error is to mistake the hypothesis for an

explanation of a phenomenon, without performing experimental tests.

Sometimes ‘common sense’ aid ‘logic’ tempt us into believing that no

test is needed. There are numerous examples of this, dating from the

Greek philosophers to the present day.” Frank L. H. Wolfs, Univ. of

Rochester, Prof. of Physics, Laboratory Experiments, Appendix E: Intro-

duction to the Scientific Method, at http://teacher.nsrl.rochester.edu/

phy_labs/AppedixE/AppendixE. html.

As the authors of the treatise Modern Scientific Evi-

dence: The Law and Science of Expert Testimony (1997 &

Supp. 1999) have observed:

Many courts are willing to reject testimony

when it is clear that the expert could create

better evidence. . . . Simply put, courts are

beginning to wonder, if these theories and

Opinions are testable, why haven’t they been

tested?

Faigman, supra, at 666. Several courts have placed a heavy

emphasis on testability, as discussed in the Petitioner’s brief.

(Pet. Writ Cert. at 24.) In fact, in a case similar to the one

before the Court, the Eighth Circuit found a district court

committed prejudicial error in failing to exclude the testi-

mony of a master electrician where he “did no testing to bol-

ster this . . . theory of fire cause and origin.” Weisgram v.

Marley Co., 169 F.3d 514, 519-20 (8th Cir. 1999). The court

found that the absence of such testing rendered his testimony

“rank speculation” and “nothing more than pure conjecture”

as to whether the manufacturer’s baseboard heater was

defective and caused a fire. Id.

Unfortunately, the Tenth Circuit did not apply the scien-

tific principles embodied in Daubert. It did not require the

experts in this case to produce “better evidence” through

testing when readily available, and instead surpassed its dis-

cretion in applying the Daubert factors to abandon its gate-

keeping function.

IV.THE COURT SHOULD TAKE THIS CASE TO

PROVIDE GUIDANCE TO LOWER COURTS

AND PRESERVE THE LETTER, PURPOSE

AND SPIRIT OF DAUBERT

As Brooklyn Law School Professor Margaret A. Berger

predicted shortly after Kumho Tire, “Numerous issues re-

main unresolved, and the possibility exists that splits in the

Circuits will result, particularly in connection with the proof

of causation in toxic tort cases, the question that engaged the

Court’s interest in expert testimony in the first place.” Ber-

ger, supra, at 38.

The Court should grant certiorari in this case to preserve

both the letter and spirit of Daubert. This case presents the

Court with a unique opportunity to provide guidance on three

key areas of division. On each issue, the Tenth Circuit

strayed from Daubert’s meaning*and purpose. The improper

interpretation of all three, as occurred in the instant case, can

and did render the Daubert standard meaningless. It sends

the wrong signal at the wrong time to district court judges in

the Tenth Circuit and the rest of the country.

CONCLUSION

For the foregoing reasons, amici curiae the American

Tort Reform Association and National Association of Manu-

facturers respectfully request that this Court grant the Peti-

tion for a Wnit of Certiorari in this action.

Respectfully submitted,

Victor E. Schwartz

(Counsel of Record)

Leah Lorber

SHOOK, HARDY & BACON L.L.P.

600 14th Street, N.W., Suite 800

Washington, D.C. 20005

(202) 783-8400

Attorneys for Amici Curiae

Sherman Joyce

AMERICAN TORT REFORM

ASSOCIATION

1101 Connecticut Avenue, Suite 400

Washington, D.C. 20036

(202) 682-1163

Jan S. Amundson

Quentin Riegel

NATIONAL ASSOCIATION OF

MANUFACTURERS

1331 Pennsylvania Avenue, N.W.

Suite 600

Washington, D.C. 20004

(202) 637-3000

Cary Silverman

SHOOK, HARDY & BACON L.L.P.

600 14th Street, N.W., Suite 800

Washington, D.C. 20005

(202) 783-8400

Of Counsel

Dated: June 9, 2005

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. FILED

JUN 2 1 20065

@) OFF:3E OF THE CLERK

No. 04-1485 _

IN THE

Supreme Court of the United States

WHITE-RODGERS,

A DIVISION OF EMERSON ELECTRIC COMPANY,

Petitioner,

Vv.

Pee ES eae FRED D. BITLER, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

- To The United States Court Of Appeals

For The Tenth Circuit

REPLY BRIEF FOR PETITIONER

ANDREW M. LOW THEODORE B. OLSON

PETER J. KRUMHOLZ Counsel of Record

DAVIS GRAHAM & STUBBS LLP THOMAS H. DUPREE, JR.

1550 Seventeenth Street JEFFREY A. WADSWORTH

Suite 500 MARK A. PATTON

Denver, CO 80202 GIBSON, DUNN & CRUTCHER LLP

(303) 892-9400 1050 Connecticut Avenue, NW

Washington, DC 20036-5306

(202) 955-8500

Counsel for Petitioner

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Page

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REPLY BRIEF FOR PETITIONER ....................0...ccceseeseaeee- l

I. This Case Squarely Presents Three Issues

Of Law, And Plaintiffs’ Factual Recitation

Is Irrelevant. .................. siicbhadiea iat iaical ag iceatagabieaiaale 2

II. Three Substantial And Recurring Daubert

Questions Warrant This Court’s Review. ................. 4

A. This Court Should Resolve The

Conflict Over Whether Daubert

Permits Consideration Of An Expert’s

Conclusion............... Ope aoe ues Oe ee 4

B. This Court Should Clarify Whether

Daubert’s “Fit” Requirement Imposes A

Heightened Standard Of Relevance................... 6

C. Review Is Warranted To Clarify When

Testing Is Necessary To Establish ’

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TABLE OF AUTHORITIES

CASES

Allison v. McGhan Med. Corp., 184 F.3d 1300

(11th Cir. 1999)

Campbell v. Metro. Prop. & Cas. Ins. Co.,

239 F.3d 179 (2d Cir. 2001)

Daubert v. Merrell Dow Pharm., Inc.,

509 U.S. 579 (1993)

General Elec. Co. v. Joiner, 522 U.S. 136

(1997)

Heller v. Shaw Indus., Inc., 167 F.3d 146

(3d Cir. 1999)

In re Paoli R.R. Yard PCB Litig.,

35 F.3d 717 (3d Cir. 1994)

Kumho Tire Co. v. Carmichael,

526 U.S. 137 (1999)

Ruiz-Troche v. Pepsi-Cola of Puerto Rico

Bottling Co., 161 F.3d 77 (1st Cir. 1998)

Smith v. BMW N. Am., Inc., 308 F.3d 913

(8th Cir. 2002)

RULES

FED. R. Evip. 401

FED. R. EVID. 702

OTHER AUTHORITIES

Note, Reliable Evaluation of Expert Testimony,

116 HARV. L. REV. 2142 (2003)

passim

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REPLY BRIEF FOR PETITIONER

Plaintiffs’ brief in opposition is almost entirely nonre-

sponsive. Plaintiffs fail to rebut—indeed, they virtually ig-

nore—the arguments in the petition demonstrating why this

Court’s guidance is needed to resolve the conflicts in the

lower courts over the proper application of Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Instead, plaintiffs devote substantial portions of their brief to

a lengthy description of the purported qualifications of their

experts, Opp. 5-13, and to their claim that they will prevail

on the merits. Opp. 16-21.

Of course, a respondent’s claim that it will win on the

merits is not a basis for denying review, and the fact that

plaintiffs spend less than one page—see Opp. 15—

attempting to rebut the existence of the circuit splits dis-

cussed in the petition reflects their implicit acknowledgment

that White-Rodgers has satisfied the standard for obtaining

certiorari. Indeed, plaintiffs do not seriously contest White-

Rodgers’s showing that the lower courts have taken sharply

differing approaches to Daubert’s gatekeeping requirements.

Nor do plaintiffs address a single one of the court of appeals

cases discussed in the petition, or for that matter even men-

tion General Electric Co. v. Joiner, 522 U.S. 136 (1997)—a

case discussed at length by White-Rodgers.

Simply put, plaintiffs offer no reason for this Court to

deny review of a case that exacerbates several splits in the

lower courts over Daubert and its progeny. Plenary review is

warranted to resolve the conflict over whether Daubert per-

mits courts to consider experts’ conclusions as well as their

methodologies; to dispel the confusion over whether

Daubert’s “fit” requirement demands a heightened level of

relevance, or whether it can be satisfied by a mere showing

of relevance under Federal Rule of Evidence 401; and to clar-

ify whether a district court abuses its discretion by allowing

an expert to present his untested theory of causation to the

- =. *

jury, where the theory meets none of the Daubert reliability

factors and could have been readily verified through testing.

These questions are important and recurring. As the

American Tort Reform Association and the National Asso-

ciation of Manufacturers explain in their amicus brief,

“fe]xpert witnesses are given extraordinary privileges in

court” and as a result, “[b]ad science presented as fact by ex-

perts can result in removal of beneficial products from the

market and [have] profound effects on the American econ-

omy.” ATRA Br. at 4, 6. This Court should grant review,

resolve the conflicts plaguing the lower courts, and make

clear that Daubert’s gatekeeping requirement must be en-

forced strictly and with rigor.

I. This Case Squarely Presents Three Issues

Of Law, And Plaintiffs’ Factual Recitation Is

Irrelevant.

The bulk of plaintiffs’ brief consists of a lengthy factual

recitation, followed by insistent assertions that the Tenth Cir-

cuit and plaintiffs are correct on the merits. The apparent

purpose of plaintiffs’ approach is to convince this Court that

the decision below is “fact-bound,” Opp. 1, and dependent on

resolution of contested factual issues rather than questions of

law.

Plaintiffs are wrong. The Tenth Circuit committed sev-

era] fundamental /ega! errors in its application of Daubert’s

gatekeeping requirement. For example, it held that in deter-

mining an expert’s reliability, “a tnal court’s focus generally

should not be upon the precise conclusions reached by the

expert, but on the methodology employed in reaching those

conclusions.” Pet. App. 9a. It also held, in applying

Daubert’s requirement that there be a “fit” between the ex-

pert’s opinion and the facts of the particular case, that “[a]

trial court must look at the logical relationship between the

evidence proffered and the material issue that evidence is

supposed to support to determine if it advances the purpose

of aiding the trier of fact”—thus indicating that it was apply-

ing a Rule 401 relevance standard. Jd. at 10a; see also id. at

19a (rejecting White-Rodgers’s “fit” challenge on the basis

that the testimony of plaintiffs’ experts “involves a reliable

method that would aid the jury in resolving a factual dis-

pute”).

The questions presented by White-Rodgers’s petition fo-

cus on the legal standards for the admission of expert testi-

mony applied by the district court and Tenth Circuit. Thus,

plaintiffs’ extended discussion “set[ting] forth each of their

experts, their skills, training and experience, and the sub-

stance of their testimony,” Opp. 5, is irrelevant to the issues

before this Court at the certiorari stage.

Moreover, although plaintiffs contend that White-

Rodgers “generally mischaracterizes the expert testimony

presented at trial,” Opp. 1, the entire “expert testimony” sec-

tion of plaintiffs’ brief is devoid of a single citation to the

record. See Opp. 5-13. Apparently viewing themselves as

unencumbered by any need to support their statements with

evidence, plaintiffs make factual assertions that have abso-

lutely no support in the record, such as their claim that a par-

ticle that is 85 micrometers in size could keep the valve from

shutting. !

In short, regardless of plaintiffs’ depiction of the facts

and the purported qualifications of their experts, the ques-

1 Plaintiffs’ experts never performed any tests that would have deter-

mined the size of a particle capable of keeping the valve open. Although

Bullerdiek opined that a particle the size of a human hair could be suffi-

cient, there is no evidence im the record about the size of a human hair,

and Bullerdick’s opinion is utterly speculative and rests entirely on his

ipse dixit assertion. Plaintiffs’ brief is riddled with inaccuracies and mis-

leading statements, such as their claim that this case was “decided . . . by

more than a dozen federal judges,” Opp. 1, and their assertion that “the

problems of copper sulphide contamination persisted” after the introduc-

tion of a screen mechanism in 1978, Opp. 2, when in fact there is no evi-

dence of leaks caused by copper sulfide particles in screened gas controls.

Nor is there any merit to plaintiffs’ claim that White-Rodgers somehow

endorsed plaintiffs’ theory of defect by “offer{ing] at trial to stipulate that

sulfide particulate contamination has caused intermittent valve leaks.”

Opp. 4. The offered stipulation only concerned unscreened gas controls.

tions presented by White-Rodgers’s petition focus on

whether this Court’s review is warranted to resolve the con-

flicts over the legal standards governing the admissibility of

expert testimony. As shown below, on that critical question,

plaintiffs offer virtually no rebuttal.

fil. Three Substantial And Recurring Daubert

Questions Warrant This Court’s Review.

A. This Court Should Resolve The Conflict

Over Whether Daubert Permits Consid-

eration Of An Expert’s Conclusion.

The Tenth Circuit refused to consider whether plaintiffs’

experts’ conclusions—as distinct from their methodologies—

were reliable. Pet. 12-15. In focusing on the experts’ general

testimony that “copper sulfide particles are the kind of thing

that when lodged on the valve seat can cause leaks,” Pet.

App. 14a, the court of appeals ignored the complete lack of

support for the experts’ conclusion that the minuscule parti-

cles present in this case, when combined with grease, could

have held open the safety valve. By doing so, the Tenth Cir-

cuit followed the approaches employed in the Second and

Eighth Circuits, in which district courts are instructed not to

evaluate the reliability of an expert’s ultimate conclusion, as

long as his general methodology appears reliable. See, e.g.,

Campbell v. Metro. Prop. & Cas. Ins. Co., 239 F.3d 179, 186

(2d Cir. 2001); Smith v. BMW North America, Inc., 308 F.3d

913, 919 n.9 (8th Cir. 2002).

The “methodology-only” approach is based on a sen-

tence from Daubert in which this Court remarked that the

“focus” of a district court’s reliability inquiry “must be solely

on principles and methodology, not on the conclusions that

they generate.” 509 U.S. at 595. Although this Court ap-

peared to modify its approach in Joiner, 522 U.S. at 146,

where it cautioned courts against admitting testimony where

there is “too great an analytical gap between the data and the

opinion proffered,” many courts, such as the Tenth Circuit,

continue to rely on the Daubert language, while others con-

strue Joiner as having modified Daubert. See, e.g., Heller v.

Shaw Industries, Inc., 167 F.3d 146, 153 (3d Cir. 1999) (dis-

trict courts must “examine the expert’s conclusions in order

to determine whether they could reliably follow from the

facts known to the expert and the methodology used”); Ruiz-

Troche v. Pepsi-Cola of Puerto Rico Bottling Co., 161 F.3d

77, 81 (1st Cir. 1998) (after Joiner, “trial judges may evalu-

ate the data offered to support an expert’s bottom-line opin-

ions to determine if that data provides adequate support to

mark the expert’s testimony as reliable”). Only this Court

can resolve this conflict and the apparent tension between

Daubert and Joiner.

Although White-Rodgers discussed this issue at length in

its petition, and cited scholarly commentary analyzing the

“significant split among the circuits on this question,” Pet.

12-15, plaintiffs have little to say in response. They simply

assert that “[t]here 1s no split among the circuits on the issues

raised in the Petition.” Opp. 15. They do not even cite, let

alone discuss, the many cases examined in White-Rodgers’s

petition.

Plaintiffs contend that a circuit split could arise only if

another circuit court were “to hold that exact or very similar

proffered testimony was inadmissible.” Opp. 15. But this

Court has routinely granted certiorari in cases where the

lower courts have diverged in their application of federal law,

regardless of whether the cases involved identical facts. In

fact, in Daubert itself, this Court “granted certiorari in light

of sharp divisions among the courts regarding the proper

standard for the admission of expert testimony.” 509 U.S. at

585 (citation omitted). Certiorari is warranted here for the

same reason.

Ironically, plaintiffs cite a law review note, Reliable

Evaluation of Expert Testimony, 116 HARV. L. REv. 2142

(2003), to support their contention that there is little confu-

sion in the courts over Daubert questions. Opp. 15. But that

commentator actually concludes that Daubert and its progeny

have “yielded inconsistent approaches” and the

“[iJnconsistency in the substantive standards for assessing

expert testimony is troublesome [because] it means that simi-

larly situated litigants are treated differently based on where

they litigate, and it promotes forum shopping.” 116 HARV

L. REV. at 2146-47.

Absent guidance from this Court, the circuits will con-

tinue to apply “inconsistent approaches” to Daubert’s gate-

keepiag requirement and the question whether a district court

may consider experts’ conclusions as well as their method-

ologies in assessing reliability

B. This Court Should Clarify Whether

Daubert’s “Fit” Requirement Imposes A

Heightened Standard Of Relevance.

Plaintiffs contend that “there is no significant issue of

federal law at stake in this case,” because there is no compel-

ling reason “for altering” Federal Rules of Evidence 401 and

702. Opp. 14-15. This non sequitur is not a reason for deny-

ing certiorari.

White-Rodgers, obviously, is not arguing that Rule 401

or Rule 702 should be “altered.” Rather, White-Rodgers’s

argument is that the Tenth Circuit’s approach to Daubert’s

“fit” requirement—essentially treating it as akin to Rule

401’s relevancy standard—is inconsistent with Daubert,

Joiner, and Kumho Tire Co. v. Carmichael, 526 U.S. 137

(1999). Moreover, the Tenth Circuit’s approach conflicts

with the approaches followed by other courts of appeals, such

as the Third Circuit and the Eleventh Circuit. See Jn re Paoli

Railroad Yard PCB Litig., 35 F.3d 717, 745 n.13 (3d Cir.

1994) (“the standard for fit is higher than bare relevance”);

Allison v. McGhan Med. Corp., 184 F.3d 1300, 1310 (11th

Cir. 1999) (contrasting Rule 401’s “liberal admission of evi-

dence standard” with Daubert’s “more stringent standards of

reliability and relevance’).

Plaintiffs make no attempt to reconcile the Tenth Cir-

cuit’s application of a relaxed relevance standard with the far

more rigorous standard applied in other circuits. See Pet. 15-

21. Instead, plaintiffs simply rely on their utterly unsup-

ported and patently incorrect assertion that “[t]here is no split

among the circuits on the issues raised in the Petition.”

Opp. 15.

A heightened relevance standard gives: meaning to this

Court’s description of “fit” in Daubert, and prevents expert

witnesses from offering potentially misleading testimony that

does not have the requisite connection to the underlying data

or facts. In this case, plaintiffs’ experts failed to explain how

the tiny copper sulfide particles that were found downstream

from the mesh screen could have prevented the safety valve

from closing properly.2 Had the district court applied the

heightened relevance standard contemplated by Daubert,

plaintiffs’ experts would not have been allowed to present

their bogus theories to the jury. This Court shouid grant re-

view and reject the Tenth Circuit’s approach.

C. Review Is Warranted To Clarify

When Testing Is Necessary To Establish

Reliability.

Plaintiffs claim that their experts should not have been

required to test their causation theory before presenting it to

the jury. Opp. 18. Notably, plaintiffs do not contend that

such testing would have been difficult, or time-consuming, or

otherwise burdensome or impractical. Nor do they dispute

that such testing would have quickly and easily confirmed

the reliability of their experts’ theory—that minuscule copper

sulfide particles, combined with grease, prevented the safety

valve from closing in this case.

Instead, plaintiffs assert, again without citation to the re-

cord, that there is “general acceptance in the scientific com-

2 Plaintiffs contend that White-Rodgers has previously argued in favor

of the same theory that plaintiffs’ experts advanced in this case. Opp. 16.

That is not true. First, White-Rodgers has never claimed that mmuscule

specks of copper sulfide of the kind at issue im this case could prevent a

safety valve from shutting properly. Second, the statements that plaintiffs

attribute to White-Rodgers on page 16 of their opposition brief are from

cases involving pre-1978 safety valves, i.e., valves that did not contain

screens like the one in the Bitlers’ gas control that prevent larger copper

sulfide particles from passing through.

munity” for the proposition that “small particles can combine

with grease on the safety valve seat of a propane gas control

and cause a leak and subsequent explosion.” Opp. 18. But

plaintiffs’ experts can point to nothing—other than their own

self-serving statements—to show that any reputable scientist

agrees with them. In the absence of either testing or general

acceptance, their theory is a classic example of “opinion evi-

dence which is connected to existing data only by the ipse

dixit of the expert.” Joiner, 522 U.S. at 146. Indeed, it is for

this very reason that the district court and the Tenth Circuit

should have required plaintiffs’ experts to test their theory.

Plaintiffs contend that because courts have flexibility

under Daubert and Kumho Tire to determine how best to as-

sess reliability, district courts enjoy absolute discretion in

deciding which, if any, factors to apply im a given case.

Opp. 17-20. Plaintiffs quote this Court’s observation in

Kumho Tire that the Daubert factors “may or may not be per-

tinent in assessing reliability, depending on the nature of the

issue, the expert’s particular expertise, and the subject of the

testimony.” Opp. 20 (quotation omitted). Of course, that

language from Kumho Tire does not resolve whether a failure

to require testing amounts to an abuse of discretion in a

product liability case like this one, where an expert offers a

theory of causation that is not otherwise reliable or well-

established in the scientific community, and that could easily

be verified through testing.

This case provides the opportunity to give force to the

recognition that although “the Daubert factors are not holy

writ, in a particular case the failure to apply one or another of

them may be unreasonable, and hence an abuse of discre-

tion.” Kumho Tire, 526 U.S. at 159 (Scalia, J., concurring,

joined by O’Connor & Thomas, JJ.). Indeed, “the discretion

[Daubert] endorses—tnal-court discretion in choosing the

manner of testing expert reliability—is not discretion to

abandon the gatekeeping function,” id. at 158-59, yet the ap-

proach followed by the courts in this case amounts to a vir-

tual abandonment of that responsibility. See ATRA Br. at

15-18 (discussing cases and scientific treatises emphasizing

the importance of testing as an indicator of reliability).

As the Kumho Tire majority explained, district courts

“should consider the specific factors identified in Daubert

where they are reasonable measures of the reliability of ex-

pert testimony.” /d. at 152. The contrast between the Tenth

Circuit’s approach in this case—rejecting testing as a meas-

ure of reliability—and the emphasis that many other courts

have placed on testing, see Pet. 24, highlights the need for

this Court to make clear that while a district court’s discre- .

tion under Daubert may be considerable, it is not absolute.

CONCLUSION

For all the reasons set forth above and in the petition, the

petition for a writ of certiorari should be granted.

Respectfully submitted.

ANDREW M. Low THEODORE B. OLSON