Opposition Brief — Litton Systems, Inc. v. Carroll

i

RULE 29.1 LIST

The parent company of Litton Systems, Inc. is Litton

Industries, Inc. There are no subsidiaries of Litton Systems, Inc.

required to be disclosed under Supreme Court Rule 29.1.

TABLE OF CONTENTS

PAGE

ey es

TABLEOFCONTENTS.............. i

TABLE OF AUTHORITIES............ ii

| STATEMENT OF THECASE...........

| REASONS FOR DENYING THE

CONDITIONAL CROSS-PETITION ....... 1

I. The Original Petition May Be Granted

And Fairly Ruled Upon Without Supreme

Court Review Of The Underlying Eviden-

I so Ge ae a ee so 2

II. The Lower Courts Correctly Fulfilled

Their Responsibilities To Review Pro-

posed Expert Testimony And Determine

Admissibility Under Federal Rule of

Evidence 702 And Other Authorities... . . 3

RE og pe v0 hy a oe oe a we 5

TABLE OF AUTHORITIES

PAGE

CASES

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

532 ee Se 6 ora wh es 1,34

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) . . 3-4

United States v. Baller, 519 F.2d 463 (4th Cir.),

cert. denied, 423 U.S. 1019 (1975) ....... 3

RULE

rere ge aae e ae ie Bre ]

1

STATEMENT OF THE CASE

The petition in this case seeks review of a straightforward

legal question:

May a federal district court, consistent with this

Court’s decision in Daubert v. Merrell Dow Pharma-

ceuticals, Inc., 113 S. Ct. 2786 (1993), submit com-

plex toxic tort claims to a jury in the absence of any

admissible expert testimony on the questions of (a)

exposure and (b) specific medical causation?

This is a question that can and should be answered by this Court

as it is phrased.

By contrast, the conditional cross-petitioners seek this

Court’s review of a host of fact-laden evidentiary issues under-

lying the district court’s exclusion of plaintiffs’ expert testimony

on exposure and specific medical causation and the Fourth

Circuit’s affirmance of that exclusion. This Court need not

immerse itself in these issues in order to answer the question

posed by the original petition, nor is there any independent

reason why this Court should address such issues as they arise

in this case.

In any event, the premise of the conditional cross-petition,

i.e., that the lower courts allegedly used the wrong standard in

assessing the admissibility of plaintiffs’ expert testimony, is

incorrect as a matter of fact and law.

REASONS FOR DENYING THE

CONDITIONAL CROSS-PETITION

By their conditional cross-petition, respondents ask this

Court, if it accepts the petition for certiorari, to reexamine the

underlying evidentiary rulings of the courts below that found

plaintiffs’ experts’ opinions scientifically unreliable and inad-

missible under Fed. R. Evid. 702. The Court should deny the

conditional cross-petition. First, the petition itself can be an-

swered properly without reconsideration of the lower courts’

2

comprehensive evidentiary rulings. Second, cross-petitioners

have not shown that the lower courts applied the wrong standard

in excluding the critical testimony of their expert witnesses on

exposure and specific medical causation.

I. The Original Petition May Be Granted And Fairly

Ruled Upon Without Supreme Court Review Of

The Underlying Evidentiary Questions.

The principal question presented by the original petition is:

May a federal district court, consistent with this

Court’s decision in Daubert v. Merrell Dow Pharma-

ceuticals, Inc., 113 S. Ct. 2786 (1993), submit com-

plex toxic tort claims to a jury in the absence of any

admissible expert testimony on the questions of (a)

exposure and (b) specific medical causation?

Pet. at i. This question does not require any reanalysis by this

Court of the lower courts’ evidentiary determinations.

In a comprehensive opinion, the district court explained its

reasons for excluding cross-petitioners’ critical expert testi-

mony, and the Fourth Circuit’s opinion affirmed those rulings

under Daubert. No reason exists or has been suggested by

cross-petitioners for this Court to undertake another review of

those rulings as a predicate for answering the question posed by

the original petition. That question can be answered cleanly and

fairly as phrased, because it is undisputed — on the present

record — that plaintiffs have no expert testimony to show when

they were allegedly exposed to toxic chemicals and no expert

testimony that any of their physical complaints were more

probably than not caused in fact by their claimed exposures to

those chemicals. !

! See Respondents’ Brief in Opposition at 1 1 (“[t]he Fourth Circuit ruled

Mr. Moore’s testimony inadmissible as unreliable”); id. at 12 (“[t]he Fourth

Circuit further ruled that Plaintiffs could not rely on the opinions of their

three medical experts that the Plaintiffs’ medical problems were caused by

Litton’s TCE”).

3

II. The Lower Courts Correctly Fulfilled Their Respon-

sibilities To Review Proposed Expert Testimony

And Determine Admissibility Under Federal Rule

of Evidence 702 And Other Authorities.

The conditional cross-petition is founded on an incorrect

portrayal of the lower courts’ rulings. Cross-petitioners assert

that the district court erroneously applied Frye v. United States,

293 F. 1013 (D.C. Cir. 1923), which was rejected in Daubert as

the sole criterion under which admissibility of expert testimony

should be judged in the federal courts. Cross-Petition at 4.

Although the district court did cite Frye’s general acceptance

standard, see Conclusions of Law, ff B.15 to B.16, App. at

127a-29a, it noted that its “conclusions of law would be the same

even if the Frye standard were ignored and plaintiffs’ more

liberal standard accepted,” Conclusions of Law, { B.17, App. at

129a. The district court thus cited and relied upon many cases

that turned specifically on Rule 702’s requirement that expert

opinions be reliable and nonspeculative. See Conclusions of

Law, @f B.5 to B.14, App. at 122a-27a.2 The Fourth Circuit

affirmed the district court’s exclusion of expert witnesses with-

out finding it necessary to rely upon the Frye standard and

expressly applied Daubert. Accordingly, the district court’s

reference to Frye does not indicate that its ruling — much less

the Fourth Circuit’s — conflicts with Daubert.

Moreover, this Court in Daubert held that one of the factors

that should be considered by a district court under Rule 702 was

whether a particular methodology has gained general accep-

tance in the relevant scientific community, i.e., the Frye stand-

2 Thus, for example, the district court repeatedly relied upon United

States v. Baller, 519 F.2d 463 (4th Cir.), cert. denied, 423 U.S. 1019 (1975).

See Conclusions of Law, #{ B.6, B.12, B.16, D.26, Memorandum and

Recommendation, Part IV; App. at 123a, 126a, 128a-29a, 142a, 196a.

Cross-petitioners approvingly cited Baller, Cross-Petition at 5, as consistent

with Daubert and reflecting a more liberal standard of admissibility than

Frye.

4

ard. 113 S. Ct. at 2797. To the extent that the district court

addressed the lack of general acceptance of the opinions of

cross-petitioners’ experts, it thus did what this Court said in

Daubert was appropriate. Accordingly, cross-petitioners have

failed to show that the district court’s citation of Frye constitutes

grounds for reversal of its exclusion of the expert testimony of

Mr. Moore and Dr. Spencer.

Cross-petitioners also complain that the lower courts ig-

nored or failed to understand the arguments they offered in

support of their experts’ opinions. In Daubert, this Court ex-

pressed its confidence that the lower federal courts were fully

capable of making determinations concerning the reliability of |

scientific methodology and ascertaining whether proffered |

opinions were based upon scientific knowledge or mere specu-

lation. 113 S. Ct. at 2796.3 The district court’s comprehensive

opinion here shows that this confidence was well-founded. |

The district court’s opinion includes 164 carefully-anno- |

tated Findings of Fact on Daubert-related issues. See App. at :

pp. 68a-108a. Its Conclusions of Law on the same issues are |

equally well-detailed and well-supported. See id. at pp. 122a-

43a, 192a-219a. Through the hundreds of paragraphs of its

opinion, the district court competently digested the scientific

issues presented by this case and, with more than a modicum of

understanding, cited, inter alia, the affidavits and reports of

cross-petitioners’ experts, the admissions of cross-petitioners’

experts in their depositions, and other detailed, scientific infor-

mation. Although the district court opinion was issued nearly

3 What clearly emerges from the cross-petition is not a showing that the

lower courts erred in their admissibility rulings, but cross-petitioners’ unhap-

piness with Daubert itself. Cross-petitioners contend that the district court’s |

rulings on reliability “illustrate . . . the danger of non-scientist judges making |

improper judgments of the reliability of scientific testimony . . .,” Cross-Pe-

tition at 13 (emphasis added). To alleviate this “danger,” cross-petitioners

contend that the parties must be allowed to “convince a jury” on the issue of

reliability. Jd. at 13. This is exactly the position that Daubert rejected.

eS EN

5

two years before Daubert was decided, the court’s diligence in

assessing the proffered expert testimony reflects precisely the

thoughtful contro! of such testimony required by the Federal

Rules of Evidence and articulated by the Court in Daubert.

The evidentiary rulings have now been accepted at three

levels of judicial scrutiny: the United States Magistrate Judge,

the United States District Court, and the Fourth Circuit. All

concluded that plaintiffs’ experts’ opinions failed the test of

scientific reliability under Fed. R. Evid. 702. Cross-petitioners

have suggested no reason for this Court to second-guess these

determinations.

CONCLUSION

For these reasons, the conditional cross-petition should be

denied.

Respectfully submitted,

Joe G. Hollingsworth

(Counsel of Record)

Donald W. Fowler

Bruce J. Berger

SPRIGGS &

HOLLINGSWORTH

1350 I Street N.W. 9 FI.

Washington, D.C. 20005

August 10, 1995 Counsel for Cross-Respondent