Reprinted with permission from Scientific Evidence Review: Admissibility and the Use of Expert Evidence in the Courtroom, Monograph No. 9, available for purchase from: http://apps.americanbar.org/abastore/index.cfm?pid=5450066&section=main&fm=Product.AddToCart 2013© by the American Bar Association. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. CHAPTER XII EXPERT EVIDENCE IN THE DISTRICT OF COLUMBIA* by Christine G. Rolph Scott C. Jones Latham & Watkins LLP 555 Eleventh Street, N.W., Suite 1000 Washington, D.C. 20004 (202) 637-3367 [email protected] [email protected] A. EXPERT EVIDENCE IN THE DISTRICT OF COLUMBIA CIRCUIT 1. Key Decisions Applying Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) The Supreme Court’s treatment of expert testimony issues in Daubert was consistent with prec- edent in the D.C. Circuit. As such, Daubert did not unsettle expert evidence practice in the jurisdic- tion. The lead case applying Daubert in the D.C. Circuit is Ambrosini v. Labarraque, 101 F.3d 129 (D.C. Cir. 1996) [hereinafter Ambrosini]. This section begins by discussing the Ambrosini decision. Next, it provides detail on a number of related expert testimony cases in the D.C. Circuit. Finally, the section turns to a discussion of the procedural rules regarding expert testimony which are relatively unique to the D.C. Circuit. a. Ambrosini v. Labarraque, 101 F.3d 129 (D.C. Cir. 1996) The D.C. Circuit extensively incorporated Daubert into its expert evidence jurisprudence in Ambrosini, a case where the circuit court addressed the admissibility of expert evidence regarding whether Depo-Provera, a brand name, progestogen-only contraceptive, caused a minor-plaintiff’s birth defects. The court employed Daubert to determine the admissibility of two types of expert evidence: evidence linking Depo-Provera to birth defects generally (general causation) and evidence linking Depo-Provera to the minor plaintiff’s injuries specifically (specific causation). The decision * The authors acknowledge the work of Gregory S. Kaufman in drafting a prior version of the chapter which appeared in Scientific Evidence Review Monograph No. 6, as well as the work of Jess Lennon, who provided research and drafting assistance in the preparation of this chapter. 445 446 Scientific Evidence Review focused on whether weaknesses in the quality of the experts’ methodologies and conclusions should 1 act as a bar to that testimony’s admissibility, or, rather, as considerations for the fact finder to weigh. Initially, the district court granted summary judgment to the defense after refusing to admit the testimony of plaintiffs’ two expert witnesses on causation—an epidemiologist and a teratologist. The epidemiologist sought to offer testimony that Depo-Provera could cause birth defects like those sustained by the minor plaintiff. The teratologist sought to offer testimony that Depo-Provera spe- 2 cifically caused the minor plaintiff’s birth defects. The district court applied the Daubert two-prong test to determine whether the testimony was admissible. The first of Daubert’s two prongs concerns the reliability of the methodology employed by the expert, while the second asks whether the expert’s testimony is likely to assist the trier of fact. The district court began by considering the epidemiologist’s testimony on general causation. The district court ruled that, while the epidemiologist’s methodology for determining that Depo-Provera could cause birth defects was reliable, the testimony was nevertheless inadmissible because it was unlikely to assist the trier of fact. The district court stated that the testimony was unhelpful for two reasons: (1) the epidemiologist did not address “the relative risk between exposed and unexposed populations . of the birth defects from which [plaintiff] suffers,” and (2) the epidemiologist’s opin- ion that the drug “can cause” the type of birth defects plaintiff did not meet the plaintiff’s ultimate burden of proof for causation. Ambrosini, 101 F.3d at 135. The district court also excluded the testimony of the teratologist. First, as to general causation, the court rejected the methodology employed by the teratologist to find that Depo-Provera can cause birth defects. The court held that the teratologist unfairly minimized the epidemiological studies showing no causal relationship between the drug and birth defects, but then failed to offer a rationale for ignoring those studies. Id. at 137. Second, as to specific causation, the district court found fault with the teratologist’s methodology, which was limited to a review of the medical file and failed to take sufficient steps to rule out alternative causes of the birth defects. Id. On appeal, the circuit court reversed. The court ruled that the lower court erred by blurring the distinction between Daubert’s threshold admissibility requirements and the “persuasive weight” to be assigned to expert testimony: The Daubert analysis does not establish a heightened threshold for the admission of expert evidence, but rather focuses on the court’s “gatekeeper” role as a check on “subjective belief” and “unsupported speculation.” . Even if the burden placed on the “gatekeeper” may seem heavy at times, there is nothing in Daubert to suggest that judges become scien- tific experts, much less evaluators of the persuasiveness of an expert’s conclusion. Rather, once an expert has explained his or her methodology, and has withstood cross-examination 1 As a procedural matter, the defense previously moved for summary judgment, arguing that the plaintiffs had shown no reliable scientific evidence demonstrating causation. Plaintiffs responded with affidavits from an epidemiologist testifying as to general causation and a teratologist testifying as to both general and specific causation. Ambrosini v. Labarraque, 966 F.2d 1464 (D.C. Cir. 1992). The district court’s initial grant of summary judgment to the defendants was reversed by the circuit court, which found that the district court had not con- ducted a sufficient inquiry into the bases of the plaintiffs’ experts’ opinions. On remand, the district court again granted summary judgment to the defendants. See Ambrosini v. Upjohn Co., No. 84-3483, 1995 WL 637650 (D.D.C. Oct. 18, 1995), rev’d, Ambrosini, 101 F.3d 129. 2 Teratology is described as “that science which is concerned with the development of mal- formations or abnormal development in animals and human beings.” Upjohn, 1995 WL 637650, at *6. Chapter 12 447 or evidence suggesting that the methodology is not derived from the scientific method, the expert’s testimony, so long as it “fits” an issue in the case, is admissible . Id. at 134 (internal citations omitted); see also id. at 131. The circuit court concluded that Daubert only envisions a limited “gatekeeper” role for the court, rather than encouraging an independent assessment of the evidence for accuracy and persuasiveness. Applying this standard, the circuit court first revisited the admissibility of the epidemiologist’s testimony under the Daubert test. First, the court confirmed as reliable under Daubert the epidemi- ologist’s methodology which it noted was a conventional “totality of the data” technique examining the entire medical literature on the subject. Id. at 136. Although the court expressed concern that some of the expert’s calculations were unpublished, the epidemiologist had stated that there was no need for publishing the work because the material was not novel, the drug was off the market, and there was not sufficient interest in the field. The court found that this response was sufficient to sustain the Daubert analysis. Id. at 136–37. However, the key concern for the epidemiologist’s testimony had been whether it would survive the second Daubert prong. Here, the D.C. Circuit corrected the lower court’s analysis, stating that the second Daubert prong tests mere relevance. Testimony need not satisfy the plaintiff’s burden on the ultimate issue to comply with the Daubert standard; the testimony must simply relate to a contested issue and aid the fact finder in resolving the claim. Id. at 135–36. Thus, although the epi- demiologist’s inability to be clear about the probability of specific causation might prove fatal to the plaintiff’s claim at trial, it would not act as a bar to admissibility. Id. The court ruled that because the epidemiologist’s findings would still be helpful to the trier of fact, the testimony was admissible. The circuit court then turned to the teratologist’s testimony, addressing his conclusions on gen- eral causation and specific causation independently. With regard to general causation, the circuit court credited the expert’s methodology, which relied on specific animal, pharmacological, and human studies. Id. at 137. Although none of the studies specifically concluded that the drug caused the type of birth defects suffered by the plaintiff, the court noted that the expert purported to follow the “traditional methodology of experts in his field, after considering all the data and evidence,” to arrive at his conclusion of causation. Id. Indeed, the expert’s identification of the research he reviewed and the explanation of his techniques were satisfactory under the logic of Ferebee v. Chev- ron Chemical Co., 736 F.2d 1529 (D.C. Cir. 1984), decided thirteen years earlier. In Ferebee, the circuit court stressed that “a cause-effect relationship need not be clearly estab- lished by animal or epidemiological studies before a doctor can testify that, in his [or her] opinion, such a relationship exists.” Id. at 1535. In other words, if an expert is well-qualified in her field, her conclusions will not be barred because they are the first of their kind. There need not be a critical mass of prior supporting data to satisfy Daubert’s first prong.