EVIDENCE
by Robert A. Weninger·
I.
II.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 649
JUDICIAL NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 650
A.
Judicial Notice: Discussion o/Taylor v. Charter
Medical Corporation
650
III. EXPERT TESTIMONY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 654
A.
The Validity-Reliability Standard: Discussion o/the
Supreme Court Decision in Daubert v. Merrell 654
Dow Pharmaceuticals
654
B. An Explicit Extension o/Daubert to Non-Scientific Evidence:
Discussion o/the Supreme Court Decision in Kumho Tire Co.,
Ltd. v. Carmichael
658
C. Discussion o/the Fifth Circuit Decision in Black v. Food
661
Lion, Inc.
D. Discussion o/the Fifth Circuit Decision in Bartley v.
Euclid, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 664
E. Discussion o/the Fifth Circuit Decision in Tanner v.
Westbrook
667
F. Discussion o/the Fifth Circuit Decision in Curtis v.
M&S Petroleum, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 672
IV. CONCLUSION
674
I. INTRODUCTION
The survey this year concentrates on significant Fifth Circuit decisions
that further define the gatekeeping role of trial judges in determining the
admissibility of expert evidence under the Supreme Court's opinions in
Daubert v. Merrell Dow Pharmaceuticals I and Kumho Tire Co., Ltd v.
Carmichael. 2 The Daubert standard requires that expert testimony be
"scientifically valid" and that the "reasoning or methodology properly can be
applied to the facts in issue. "3 The four Fifth Circuit decisions reviewed
herein illustrate the idea of Kumho Tire that Daubert reaches not only
testimony on "scientific matters," but expert testimony generally. 4 Another
Fifth Circuit case during the period of this survey, Moore v. Ashland
• Professor of Law, Texas Tech University School of Law. B.B.A., University of Wisconsin,
1955; LL.B., University of Wisconsin, 1960; LL.M.• University ofChicago, 1964.
1. 509 U.S. 579 (1993).
2. 526 U.S. 137 (1999).
3. Daubert, 509 U.S. at 593.
4. See discussion i'1fra Part 111.
649
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Chemical, Inc., an especially rigorous (and troubling) application of the
Daubert principles in the area of clinical medicine, is not presented because
the en banc decision was rendered before last year's survey was published and
Moore was discussed there. s In that decision, a divided en bane Fifth Circuit
held that a physician cannot express an opinion on causation, however wellgrounded in the principles and methodologies ofclinical medicine, unless that
opinion is fully corroborated by the Daubert factors. 6 Before considering the
decisions on the application of Daubert to expert testimony, however, the
survey focuses on an insightful Fifth Circuit opinion in the area of judicial
notice.'
II.
JUDICIAL NOTICE
A. Judicial Notice: Discussion o/Taylor v. Charter Medical Corporation
In 1990-91, Taylor had been a patient at New Provo Canyon School
(NPCS), a private residential hospital in Provo Canyon, Utah, for youths with
behavioral problems. s For his alleged mistreatment at the hospital, Taylor
filed claims for damages against NPCS and its parent company, Charter
Medical Corporation (CMC), under the Federal Civil Rights Act. 9 NPCS
moved for summary judgment on the grounds that it was not "acting under
color of state law" when it treated plaintiff and, not being a state actor, it had
no liability under section 1983. 10 Taylor opposed the motion, arguing that the
Tenth Circuit's decision in Milonas v. Wi//iams ll had conclusively determined
S. 126 F.3d 679, 682 (5th Cir. 1997), rev'd en bane, lSI F.3d 269 (5th Cir. Aug. 1998). For
detailed discussion and criticism of Moore, see Robert A. Weninger, Fifth Circuit Survey: Evidence, 30
TEx. TECHL. REv. 683, 70S-IS (1999).
6. See Moore, 126 F.3d a1682.
7. See irifra Part II; Taylor v. Charter Med. Corp., 162 F.3d 827 (5th Cir. Dec. 1998).
8. See Taylor, 162 F.3d at 828.
9. 42 U.S.C.A. § 1983 (1994); see Taylor, 162 F.3d at 828.
10. Taylor, 162 F.3d at 828. Section 1983 imposes liability on any person who violates the
Constitution or laws of the United States while acting ·under color ofany statute, ordinance, regulation,
custom, or usage, ofany State or Territory." 42 U.S.C.A. § 1983 (1994). The quoted language is phrased
more simply as a requirement that the plaintiffshow that the defendant acted under color of state law. See
ERWIN CHEMERiNSKY, FEDERAL JURISDICTION, § 8.3, at 458-62 (3d ed. 1999). The test for determining
whether a person is acting under "color of law" is virtua1ly identical to the test for determining whether
there is state action. See id. The Supreme Court has said, "In cases under § 1983, 'under color' oflaw has
consistently been treated as the same thing as the 'state action' required under the Fourteenth
Amendment." United Slates v. Price, 383 U.S. 787, 794 n.7 (1966).
II. 691 F.2d 931 (10th Cit. 1982). Milonas was a class action filed in 1980 against the Old Provo
Canyon School (OPCS), a private school for youths with behavioral problems. See id. at 934. In the class
action, a federal district court in Utah ruled that OPCS was a state actor for the purposes of § 1983 and
enjoined it from continuing certain specified practices. See id. The conclusion that OPCS was a state actor
was based on evidence that various states, through their juvenile courts or their school districts, had placed
many boys at the school and that there was significant funding and regulation by the slate. See id. at 93940. At that time, OPCS was an independent institution unaffiliated with NPCS or CMC, but its assets were
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that defendant NPCS was a state actor within the meaning of the statute. 12
Milonas was a federal class action filed in 1980 not against NPCS, but against
Old Provo Canyon School (OPCS), the alleged predecessor of NPCS.IJ
Taylor coupled his argument on the state actor issue with a request that the
trial judge take judicial notice that the district and appellate court holdings in
Milonas established that defendant NPCS, the alleged successor hospital, was
a state actor for purposes of the present suit. 14 The district court denied the
request, granted summary judgment for defendant on the section 1983 claims,
and the plaintiff appealed. 15 On review, the Fifth Circuit affinned, upholding
summary judgment and the trial judge's refusal to take judicial notice of the
state actor determinations in Milonas. 16
Judicial notice is a means by which facts may be established without the
offering of evidence. 17 Developed to avoid the expense and delay of proving
facts that are essentially incontestable, judicial notice is a substitute for the
presentation of fonnal proof by the party who ordinarily should produce
evidence on the point. ls In federal courts, Rule 201 limits the taking of
judicial notice to "adjudicative" facts. 19 The Rule further requires that such
facts be reasonably indisputable.20 Under the Rule, facts are beyond
reasonable dispute either because they are "generally known" (e.g., Lubbock
is in the State of Texas) or because they are readily verifiable by sources of
indisputable accuracy (e.g., January 1,2000 was a Saturday).21 In Taylor, the
Fifth Circuit held that the state actor detennination in the Milonas case was
subsequently acquired by those two organizations. See Tay/or, 162 F.3d at 829. In Taylor, the Fifth
Circuit said that, given the nature of the acquisition, a serious question existed whether NPCS and opcs
were the same entity. See id. at 830. However, because it rejected Taylor's request that judicial notice
be taken ofOPCS's state actor status, the court said that it did not reach the question of whether a state
actor determination as to OPCS would even apply to NPCS. See id. at 832.
12. See Taylor, 162 F.3d at 830.
13. See Milonas, 691 F.2d at 934.
14. See Taylor, 162 F.3d at 830.
15. See id.
16. See id. at 832.
17. See BLACK'S LAw DICTIONARY 848 (6th ed. 1990).
18. For a comprehensive histoty and analysis of the doctrine ofjudicial notice and the scope and
procedures ofRule 201, see 21 CHARLEs ALAN WRIGHT & KENNEm W. GRAHAM, JR., FEDERAL PRACTICE
AND PROCEDURE §§ 5101-11, at 439-535 (1977). For a discussion of Rule 201 and an extensive citation
offederal authority under the Rule, see I CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, FEDERAL
EVIDENCE §§ 47-60, at 255·305 (2d ed. 1994).
19. WRIGHT & GRAHAM, svpra note 18, § 5102, at 463.
20. See id.
21. FED. R. EVID. 20I(b) gives the standard ofcertainty required for judicial notice of adjudicative
facts. It provides: •A judicially noticed fact must be one not subject to reasonable dispute in that it is
either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and
ready determination by resort to sources whose accuracy cannot reasonably be questioned." FED. R. EVID.
201(b).
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neither an "adjudicative" fact within the meaning of Rule 201 nor a fact that
was beyond reasonable dispute. 22
Taylor illustrates the inquiry that must be made before judicial notice
might properly be taken under Rule 201.23 The identity of the matter noticed
is the critical threshold issue because judicial notice under the Rule is
restricted to adjudicative facts. 24 Arguably, what Taylor sought to establish
was not fact but law-i.e., a legal determination made in another proceeding
concerning the application of a statute to a factual situation-as to which Rule
201 does not apply.25 Therefore, it must initially be determined that the matter
was one of fact rather than law.26 Second, if the matter sought to be noticed
was one of fact, it must still be determined whether the fact was an
"adjudicative" fact (as to which Rule 201 applies) or a "legislative" or "basic"
fact (as to which it does notV' Third, even if a fact is an "adjudicative" fact,
it can be noticed only if it meets the high standards of indisputability
established in Rule 201(b).28
"Adjudicative" facts define the scope of Rule 201, but unfortunately the
Rule contains no definition of the· term. 29 However, the Advisory
Committee's Note to Rule 201 provides some help.30 It says, "Adjudicative
facts are simply the facts ofthe particular case."31 The Note quotes Professor
Kenneth Culp Davis whose views on judicial notice profoundly affected the
drafting of Rule 201. 32 Professor Davis distinguished between "adjudicative"
22. Taylor, 162 F.3d at 831. Federal Rule of Evidence 201(a) makes clear that the Rule governs
only judicial notice of adjudicative facts. See 21 WRIGHT & GRAHAM, supra note 18, § SI 03, at 481. If
the fact to be noticed is not an adjudicative fact, it is still possible that the matter might be judicially
noticed, but the provisions of Rule 20 I do not apply and the court must look to the decisional law for
guidance. See id.
23. See Taylor, 162 F.3d at 829-31.
24. See id.
2S. See id.
26. Wright and Graham comment that the Advisory Committee Note ·provide[s] no guidance on
how to determine whether the matter noticed is law or fact· WRIGHT & GRAHAM, supra note 18, § S103,
at 473.
27. Mueller and Kirkpatrick define "basic· facts as facts assumed to be known to the jury without
the need ofevidence orjudicial notice. See I MUELLER & KJRKPATRICK, supra note 18, § 60, at 268. The
Advisory Committee note to Rule 201(a) explains that the Rules do not regulate the process of noticing
legislative facts in any way:
The omission ofany treatment oflegislative facts results from fundamental differences between
adjudicative facts and legislative facts. Adjudicative facts are simply the facts ofthe particular
case. Legislative facts, on the other hand, are those which have relevance to legal reasoning
and the lawmaking process, whether in the formulation of a legal principle or ruling by a judge
or court or in the enactment of a legislative body.
FED. R. EVID. 20I(a) advisory committee's note.
28. MUELLER & KIRKPATRICK, supra note 18, § 60.
29. FED. R. EVID. 201.
30. See FED. R. elY. P. 201(a) advisory committee's note.
31. FED. R. EVID. 201(a) advisory committee's note (citing Kenneth Davis, An Approach to
Problems ofEvidence in the Administrative Proceu, S5 HARV. L. REv. 364,404-07 (1942».
32. See FED. R. EVID. 201(a) advisory committee's note.
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and "legislative" facts,33 stating that, "adjudicative facts are those to which the
law is applied in the process of adjudication. They are the facts that normally
go to the jury in a jury case."34 In contrast, he said, "legislative fa.cts" are
those "which have relevance to legal reasoning and the lawmaking process."3S
They are extra-record facts which are considered by a court or agency when
it interprets constitutions, statutes, or regulations or when it creates or
modifies rules of common law.36 Professor Davis declared, "When a court or
agency develops law or policy, it is acting legislatively; the courts have
created the common law through judicial legislation, and the facts which
inform the tribunal's legislative judgment are called legislative facts. 1I37
The Taylor court concluded that whether a private party is a state actor
for section 1983 purposes is not a matter of fact but of law-a legal
determination or, more specifically, a mixed question of fact and law. 38
Questions of fact and law are sometimes so intertwined that it is difficult or
impossible to convey factual information without also suggesting legal
conclusions. While the law governing opinion and expert testimony may, in
some circumstances, allow witnesses to give testimony that carries both
factual and legal meaning,39 the law governing judicial notice is otherwise.
Rule 201 strictly limits the doctrine to "adjudicative facts."40 Thus the state
actor determination in Milonas, containing both factual and legal content, was
not a proper subject ofjudicial notice. 41
In its alternative holding that the state actor determination in Milonas
was reasonably disputable, the Taylor court relied on its decision in Colonial
Leasing Co. v. Logistics Control Group International. 42 The Colonial Leasing
court held that it was proper to take judicial notice of another court's
judgment for the limited purpose of establishing the judicial act of entry of
judgment, but that the decision only suggested that it was improper to notice
the facts underlying thatjudgment,43 The Taylor court said that it was now
33. Davis, supra note 31, at 404-07. Other scholars have offered their definitions of the tenn:
"(A)adjudicative facts are those that are required to prove, or are used to prove, a question of fact as
distinguished from a question of law. Noticed facts are adjudicative if evidence of such facts would be
required if judicial notice were not taken.· 1 MUELLER & KIRKPATRICK, supra note 18, § 48, at 260.
" •Adjudicative facts' then, are the ultimate facts in the case, plus those evidential facts that are sufficiently
central to the controversy that they should be left to the jury unless clearly indisputable.· 21 WRIGHT &
GRAHAM, supra note 18, § 5103, at 478.
34. FED. R. EVID. 201(a) advisory committee's note.
35. [d. (citing Davis, mpra note 31).
36. See FED R. EVID. 201(a).
37. 2 KENNEni CuLp DAVIS, AoMINISTRATlVE LAw TREATISE § 15m (1958).
38. See Taylor v. Charter Med. Corp., 162 F.3d 827, 330-31 (5th Cir. 1998).
39. See 3 MUELLER & KIRKPATRICK, supra note 18, § 352, at 651-55.
40. FED. R.EVlD. 201(a).
41. See Taylor, 162 F.3d at 830-31.
42. 762 F.2d 454, 459-60, modified, 770 F.2d 479 (5th Cir. 1985).
43. See;d. In Colonial Leasing, a creditor brought suit against its debtor for fraudulent transfer
of assets. See;d. at 459. The district court had taken judicial notice of the existence of a prior judgment
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"expressly" holding that notice cannot be taken of a judgment for "other,
broader purposes," such as establishing the truth of the findings on which the
judgment was based.44 The distinction adverted to in Taylor is recognized by
leading commentators who find that the hearsay rule provides a helpful
analogy to taking judicial notice of a judicial record or of a finding of fact
made by another court. 4S They urge the importance of identifying precisely
the matter to be noticed. 46 It is one thing to notice the existence of a court
record or the existence of a finding of fact.47 It is quite another to notice the
truth of those findings or of matters stated in court records. 48 Judicial notice,
they argue, should ordinarily not be taken of the truth of findings or
statements in court records unless they otherwise satisfy the indisputability
requirement of Rule 201(b).49 Taylor soundly recognizes these distinctions.
As Charles Alan Wright and Kenneth W. Graham, Jr. also observe, "If it were
permissible for a court to take judicial notice of a fact because it has been
found to be true in some other action, the doctrine ofcollateral estoppel would
be superfluous."so
m.
EXPERT TESTIMONY
A. The Validity-Reliability Standard: Discussion ofthe Supreme Court
Decision in Daubert v. Merrell Dow Pharmaceuticals
In 1993, the Supreme Court set new standards for the admissibility of
scientific evidence in Daubert v. Merrell Dow Pharmaceuticals. sl Focusing
upon both the reliability and relevance of such evidence, the Court required
that expert testimony be "scientifically valid" and that the "reasoning or
in favor of that creditor. See id. The appellate court held that "the district court could properly take
judicial notice, under Rule 201(b), of the judgment for the limited purpose of taking as true the action of
the Oregon court in entering judgment for [the creditor] in its action against [the debtor)." [d. It said that
the entry ofjudgment was a judicial act which was not 'subject to reasonable dispute" because Oregon
court records constitute "a source whose accuracy cannot reasonably be questioned." [d. But the court also
said that the district court could not properly notice the fact that the judgment was entered for the purpose
of establishing plaintiff's creditor status-i.e., the validity of the debt underlying the Oregon
judgment-because such a matter was reasonably disputable. See id. at 460.
44. [d. at 461.
45. See 1 MUELLER & K1RKPATRICK, supra note 18, § 51, at 268; 21 WRIGHT & GRAHAM, supra
note 18, § 5106 (Supp. at 247).
46. See id.
47. The existence offmdings offact to matters stated in court records, rather than their truth, may
be important when courts seek to determine the res judicata effect to be given them. See id.
48. See id.
49. See 1 MUELLER & KIR.KPATRICK, supra note 18, § 51, at 269.
50. 21 WRIGHT & GRAHAM, supra note 18. § 5106 (Supp. at 247).
51. 509 U.S. 579, 588-89 (1993). For a concise discussion of Daubert, see 3 MUELLER &
KIRKPATRICK, supra note 18, § 353, at 656-69. For a comprehensive discussion ofscientific evidence and
the policies and problems associated with Daubert in both state and federal courts, see 29 WRIGHT &
GRAHAM, supra note 18, § 6266.
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methodology properly can be applied to the facts in issue."s2 Acting as a
gatekeeper in the realm of scientific evidence, the trial judge must determine
the validity of the underlying science and examine the soundness of the
principles or theories and the reliability of the process or method as applied
in the case. S3 The Court found the basis for the judge's role in the language
of Rule 702, which refers to "scientific knowledge" and requires that expert
testimony "assist the trier of fact. "54
In particular, the trial judge under Daubert must determine whether the
evidence constitutes scientific knowledge and whether it meets the helpfulness
requirement of Rule 702.sS The trial judge must next determine whether the
evidence is "reliable" or "trustworthy," which means that the underlying
principles of science are valid (the findings are derived by "the scientific
method" or are "supported by appropriate validation") and that the application
is reliable (application of the underlying principles produced consistent
results}.S6 These questions are required by Rule 702 and should be decided by
the judge under Rule 104(a) in a proceeding outside the presence of the jury,
Daubert, 509 U.S. at 593.
See id. at 592-94. Before adoption of the Federal Rules of Evidence, most courts, including
the Fifth Circuit, used the standard promulgated in Frye v. United States, 293 F. 1013, 1014 (D.C. Cir.
1923), to determine the admissibility of scientific evidence. See Christopherson v. Allied-Signal Corp.,
939 F.2d 1106, 1110-15 (5th Cir. 1991). Under Frye, courts looked to the scientific community to see if
the principle or technique had gained general acceptance in the particular field in which it belonged. See
id. This standard had the advantage of freeing courts from having to independently assess the reliability
ofscientific evidence. See 29 CHARLES A. WRIGIfT & VICfOR J. GoLD, FEDERAL PRACTICE & PROCEDURE
§ 6266, at 265 (1997). However, the standard was criticized as being too restrictive in that certain
52.
53.
evidence at the frontier of science might be understood to be both relevant and reliable under traditional
legal principles but might not have gained general acceptance by scientists. See id. The Daubert Court
discerned the policies underlying Rule 702 as calling for a more liberal approach toward the admissibility
of expert evidence. See Daubert, 509 U.S. at 588-89.
54. Daubert, 509 U.S. at 591 n.l1 (quoting FED. R. EVID. 702). In response to Daubert and the
many cases applying its validity-reliability standard, including Kumho Tire Co.• Ltd. v. Carmichael, 526
U.S. 137 (1999), the Federal Rules Advisory Committee proposed an amendment to Rule 702. See
PROPOSED AMENDMENT TO FED. R. EVID. 702 advisory committee note. For the text ofthe committee
note, see 3 MUELLER & KIRKPATRICK, supra note 18, § 349 (Supp. at 96-104). The proposed amendment
would add the italicized language to Rule 702:
Ifscientific, technical, or other specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness qualified as an expert DY knowledge,
skill, experience, training, or education, may testify thereto in the form of an opinion or
otherwise, provided that (l) the testimony is sufficiently based upon reliable facts or data. (2)
the testimony is the product ofreliable principles and methods, and (3) the witness has applied
the principles and methods reliably to the facts ofthe case.
PROPOSED AMENDMENT TO FED. R. EVID. 702. For the text ofthe Advisory Committee Note to Proposed
Rule 702, see 3 MUELLER & KIRKPATRICK, supra note 18, § 349 (Supp. at 96-104). The proposed changes
to Rule 702 were pending as of this writing in January 2000. Since the Standing Committee on Rules of
Practice and Procedure must submit proposed Rules changes to Congress on or before May 1, "it appears
that the earliest possible date on which they could take effect would be December 1,2000." 3 MUELLER
& KIRKPATRICK, supra note 18, § 349 (Supp. at 96).
55. See Daubert, 509 U.S. at 592.
56. [d. at 590.
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which has come to be known as a "Dauberf' hearing." Under Rule 104(a), the
proponent has the burden ofestablishing that these admissibility requirements
are met by a preponderance of the evidence. sa
To assist trial judges in determining whether the evidence is reliable or
trustworthy, the Court provided a set of flexible, nonexclusive guidelines that
trial courts may apply at a Daubert hearing. s9 The judge should look at the
foundation for expert testimony and consider (1) whether the underlying
principles and methodologies have been, or can be, tested; (2) whether the
principles and methodolgies have been subjected to peer review and
publication; (3) whether the known or potential rate of error is acceptable; and
(4) whether the foundational principles have gained general acceptance in the
scientific community.60 The task for trial judges using these factors is not to
determine whether the proffered evidence (the conclusion) is correct, but
whether the science (the underlying principles and methodology) is valid
enough to be reliable. 61
The uncertain scope of Daubert was troubling. Did the validityreliability standard apply only to scientific evidence or did it also apply to
non-scientific testimony based on an expert's experience or training, not on
some particular methodology or technique? Did the guidelines set forth in
Daubert apply only to "hard" or "Newtonian" science, or did they also apply
to the "softer" sciences, such as the disciplines of psychology, psychiatry, or
clinical medicine? Are the differences between these domains sufficient to
suggest that the latter should be exempt from gatekeeping?
The Fifth Circuit, in Watkins v. Telesmith. Inc., took the position that
Daubert was not limited to "scientific knowledge" or "novel" scientific
evidence.62 But decisions of the courts of appeals were in sharp conflict,
57. See FED. R. EVID. 702. Federal Rule of Evidence 100(a) provides in part, 'Preliminary
questions concerning ... the admissibility of evidence shall be determined by the court...." FED. R.
EVID. 100(a). Sometimes the "Daubert" hearing is a full evidentiary hearing where opposing experts
present the methodology underlying their proposed testimony. At other times it is only a brief and
informal proceeding, especially iftindings can be made by taking judicial notice, by consulting journals
or treatises, by proof of general acceptance in the scientific community (or the lack thereof), or by
considering pertinent expert testimony taken in other cases.
58. See Bourjaily v. United States, 483 U.S. 171, 175-76 (1987).
59. See Daubert, 509 U.S. at 593-94.
60. See Id.
61. See /d. at 591. In his opinion for the majority, Justice Blackmun wrote:
The inquiry envisioned by Rule 702 is, we emphasize, a flexible one. Its overarching subject
is the scientific validity-and thus the evidentiary relevance and reliability-of the principles
that underlie a proposed submission. The focus, ofcourse, must be solely on the principles,and
methodology, not on the conclusions that they generate.
Id. at 594-95.
62. 121 F.3d 984, 988-91 (5th Cir. 1997). In Watkins, a workman died from injuries when an
overhead conveyor fell on him after its support wire snapped. See Id. at 985-86. Claiming that the
machine, with only a single support wire, had been defectively designed, plaintiff called a professional
engineer who testified that the conveyor was unsafe and that alternative designs were feasible. See Id. at
986-87. The expert based his proffer not on scientific theory, but on his knowledge of engineering
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partly because the Court's language in Daubert permitted conflicting
interpretations. 63
principles and his practical experience with conveyors. See id. at 987. However, the expert also testified
that he had very limited experience in machine design; had never designed a conveyor; had made no
design drawings ofhis proposed alternatives; had not conducted tests ofthem; had not investigated designs
ofother conveyors; and had never examined the wire rope on the machine involved in the accident. See
id. at 987-88. The Fifth Circuit concluded that the district court had acted properly in excluding the
expert's testimony. See id. at 988. The appeals court emphasized that the engineer had failed to test any
of his five alternative designs; that he was vague about his prior experience with conveyors and had not
sufficiently investigated his alternative design proposals; and that he had not made calculations or kept
any drawings of his proposed designs which would have aided the trier of fact in deciding whether the
conveyor was defective. See Id. at 991-93. For a detailed discussion and criticism of WatkillS, see Robert
A. Weninger, Fifth Circuit Survey: Evidence, 30 TEx. TECH L. REv. 683, 699-705 (1999).
. 63. See, e.g., Carmichael v. Samyang Tire, Inc., 131 FJd 1433 (11th Cir.), rev'd, 119 S. Ct. 1167
(1999). In Caromichael, the plaintiffs filed a products liability suit claiming that an auto tire was
defectively designed. See id. at 1434. The Eleventh Circuit held that the Daubert standard did not apply
because the testimony of a purported expert on tire failure was not scientific. See id. at 1434. The court
said the expert's opinion was not based on any scientific theory of physics or chemistry, but on his
experience in analyzing failed tires. See id. A scientific expert is one whose testimony is based on the
application ofscientific principles rather than on observations, skill, or experience. See id. In an appeal
from a conviction for sexual abuse of a minor, the Ninth Circuit held that an expert's testimony about the
typical characteristics of child abuse victims was properly admitted even though the expert's testimony
was based on his experience in interviewing purported victims. See United States v. Bighead, 128 F.3d
1329, 1330 (9th Cir. (997). The court held that Daubert does not apply to such testimony because it is
based on specialized knowledge rather than scientific theory. See id. In a products liability claim that a
Subaru automobile was defectively designed, the Tenth Circuit held that the trial court erred in applying
Daubert to the testimony of a mechanical engineer whose expertise was based on twenty-two years of on·
the-job experience. See Compton v. Subaru of America, Inc., 82 F.3d 1513, 1516 (10th Cir. (996). The
expert testified that the auto was defectively designed because it permitted excessive damages to the roof
in a rollover. See id. The appeals court concluded that Daubert did not apply because the witness did not
base his testimony "on any particular methodology or technique." Id. at 1519. The court said that
application of the Daubert factors is unwarranted in cases where expert testimony is based solely on
experience or training. See id. Other courts have held that Daubert applies even where expert testimony
is not based on novel scientific techniques or methodologies. See, e.g., Dancy v. Hyster Co., 127 F.3d 649,
652 (8th Cir. 1997), cert. denied, 118 S. Ct 1186 (1998). In Dancy, the plaintiff filed a products liability
action against a lift truck manufacturer for injuries suffered by the operator when the truck tipped over and
pinned the operator's foot underneath. See id. at 65 I. The Eighth Circuit held that Daubert precluded the
admission of an engineer's expert testimony that the truck should have had a guard to keep the driver's
leg within the truck's frame. See id. at 652. The expert had not tested the theory in any way, had not seen
this type of device on any machine similar to the truck in this case, and had not tested the alternative
design that he suggested. See id. at 651. The expert opined that "the device he envisioned would work.·
Id. at 652. In a products liability action against the manufacturer of an industrial trim process, the Seventh
Circuit affirmed the trial judge's exclusion of the plaintiff's expert's testimony as to the adequacy of
warnings and the feasibility of alternative designs. See Cummins v. Lyle Indus., 93 F.3d 362, 366·71 (7th
Cir. (996). The court held that Daubert applied to such testimony and that the expert's basis for his
testimony was inadequate because he had not tested his proposed warnings or alternative designs, had not
read any studies ofsuch tests, and did not have practical knowledge of the use of alternative designs in the
relevant environment See id. at 366. On one hand, the Court in Daubert tied its validity standard to the
term ·scientific knowledge" (not "technical or other specialized knowledge") in Rule 702. Daubert, 509
U.S. at 588-89; FED. R. EVlD. 702. On the other hand, in rejecting the Frye test, see supra note 51, the
Court said that the requirements of Rule 702 apply to all scientific evidence and not "specially or
exclusively to unconventional evidence." Daubert, 509 U.S. at 592 n.II. This ambiguity suggests that
the Daubert standard should be applied to all expert testimony, inclUding non-scientific expert testimony.
See 29 WRIGHT & GRAHAM, supra note 18, § 6266, at 284-92.
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B. An Explicit Extension o/Daubert to Non-Scientific Evidence:
Discussion o/the Supreme Court Decision in Kumho Tire Co., Ltd. v.
Carmichael
In 1998, the Supreme Court in Kumho Tire Co., Ltd. v. Carmichael
dispelled the notion that Daubert reaches only testimony on "scientific
matters," and not expert testimony in general. 64 The Court said that the trial
judge's gatekeeping duty extended to testimony grounded on "scientific
knowledge," but also to testimony resting on "technical" and other "specialized
knowledge. "65 After Kumho Tire, where any expert testimony is offered~ven
of psychologists testifying on eye-witness identification or social workers on
battered child syndrome-there is little doubt that the Daubert inequity is
appropriate. The testimony of these witnesses is proffered as science, rests
upon scientific reasoning and methodology, and lends itself to verification by
controlled testing and experiments conducted under scientific conditions.
But engineering testimony was at issue in Kumho Tire, a products
liability case brought against the manufacturer and the distributor of the right
rear tire on a minivan involved in an accident following a blowout. 66
Plaintiffs presented the testimony of Dennis Carlson, an engineer and an
expert in tire failure analysis. 67 He would have testified that a defect in the
manufacture or design of the tire caused its tread to separate and that the
separation caused the mishap.68 Carlson's opinion rested on his theory that in
the absence of two or more possible signs of tire abuse, a defect is the likely
cause of a tire's failure. 69 His opinion was also based on his assumption that
such signs of abuse are evident upon inspecting a tire visually.70 The trial
judge excluded Carlson's testimony because he found his methods subjective
and unreliable. 71 Applying the Daubert factors, the judge said that the
expert's methodology had not been peer-reviewed; there was no indication of
the rate of error; and there was no general acceptance of the four-factor test
64.
526 U.S. 137 (1999).
65.
66.
67.
ld. at 140.
ld. at 141-42.
See id. at 142.
See id.
68.
69.
See Id. at 144.
70. See id. Carlson identified the four possible signs of tire abuse as follows:
(a) tread wear on the tire's shoulder that is greater than the tread wear along the tire's center;
(b) signs ofa "bead groove," where the beads have been pushed too hard against the bead seat
on the inside of the tire's rim; (c) sidewalls ofthe tire with physical signs of deterioration, such
as discoloration; and/or (d) marks on the tire's rim flange.
rd. (internal citations omitted).
71. See id. at 145-46. The district court faulted "the methodology employed by the expert in
analyzing the data obtained in the visual inspection, and the scientific basis, if any, for such an analysis."
rd. at 146.
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for determining alternative causation. 72 The Eleventh Circuit reversed,
holding that the gatekeeping obligation attached only where an expert "relies
on the application of scientific principles," not where he relies lion skill-or
experience-based observation. "7]
In a decision written by Justice Breyer, the Supreme Court declared that
Rule 702 does not distinguish "between 'scientific' knowledge and 'technical'
or 'other specialized' knowledge," but "makes clear that any such knowledge
might become the subject of expert testimony."74 The Court said that "it is the
Rule's word 'knowledge,' not the words (like 'scientific') that modify that
word, that 'establishes a standard of evidentiary reliability.' "7S Daubert,
Justice Breyer explained, referred only to "scientific" knowledge because that
was the only kind of expertise at issue in that case. 76 The Court noted that "it
would prove difficult, if not impossible, for judges to administer evidentiary
rules under which a gatekeeping obligation depended upon a distinction
between 'scientific' knowledge and 'technical' or 'other specialized'
knowledge. There is no clear line that divides the one from the others."" The
Court reasoned that since Rules 702 and 703 allow an expert a measure of
freedom not accorded other witnesses, the assumption is that an expert's
testimony "will have a reliable basis in the knowledge and experience of his
discipline."78 Simply put, the Court found that the rationale underlying
Daubert applies equally to all experts. 79 The testimony of an expert who does
not purport to be a scientist should be as closely examined for reliability as the
testimony of an expert who does. 80
The Court then considered whether a trial judge could choose to assess
non-scientific expert testimony by means of the specific factors identified in
Daubert. 81 The Court concluded that while any or all of those factors might
permissibly be used to determine reliability, the ultimate choice must depend
on the nature of the issue, the expert's area of knowledge, and the subject of
his testimony.82 Where the specific Daubert factors are reasonable measures
of reliability, the Court said that trial judges should use those guidelines. 8]
The Court emphasized the discretion of trial judges and said that the validityreliability determination is meant to be a "flexible" one. 84 Trial judges are to
72.
73.
74.
75.
76.
77.
78.
79.
80.
81.
82.
83.
84.
See id. at 144-46.
Carmichael v. Samyang Tire. Inc., 131 F.3d 1433, 1435·36 (11th Cir. 1997).
Kumho Tire, 526 U.S. at 147.
Id. at 147; Daubert v. Merrell Dow Pharmaceuticals, 509 U.s. 579, 589-90 (1993).
Kumho Tire, 526 U.S. at 148.
Id.
Id.
See id.
See id.
See id. at 149.
See id. al ISO.
See id. aliSO.
Id. Some of those factors may be helpful in evaluating the reliability even ofexpert testimony
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have "the same broad latitude" in deciding "how to detennine reliability"
(emphasis added) as they have "in respect to its ultimate reliability
detennination."85 Stressing the leeway accorded trial judges in gatekeeping,
the Court cited General Electric Co. v. Joiner and declared that the judge's
decision on the factors to be employed in assessing an expert's reliabilitywhether Daubert's specific guidelines are reasonable measures of reliability
in a particular case-is a matter reviewable only for an abuse of discretion. 86
Finally, the Court considered Carlson's proffered testimony and found
that the trial judge did not abuse his discretion in either applying the specific
Daubert factors or in concluding that the expert's testimony was not reliable
enough to be admissible. 8? The Court agreed that the expert's
assumption-tbat alternative causes could be ruled out by detennining the
presence of two or more ofthe four possible signs of tire abuse-was without
support from any other expert in tire failure and was unacceptably
subjective. 88
based on experience. See id. at 151. The Court said that "a perfume tester able to distinguish among 140
odors at a sniff' might be asked ·whether his preparation is of a kind that others in the field would
recognize as acceptable.· Id. The Court also alluded to the use of expert testimony on modus operandi
in federal criminal prosecutions in which experienced law enforcement officers testify routinely about the
methods of drug dealers and coded expressions commonly used by them. See id. at 150.
85. Id. at 152.
86. See id. at 152-53. In an action alleging that plaintiff's exposure to PCBs caused his cancer,
the trial judge applied the Daubert factors and excluded plaintiff's expert testimony. General Elec. Co.
v. Joiner, 522 U.S. 136 (1991). The experts' reliance on studies involving infant mice was held to be
unscientific because the mice contracted a different kind of cancer than the plaintiff. See id. at 143-47.
Further, the studies relied upon could not be replicated in adult mice or other species. See id. The experts'
reliance on four epidemiological studies was likewise flawed. See id. Two of the studies found no
statistically significant connection between PCDs and cancer. See id. A third study did not mention PCBs.
See id. A fourth study found a statistically significant connection, but involved subjects who were exposed
to a variety of other carcinogens. See id. The trial judge granted summary jUdgment to the defendants,
rul ing that without expert testimony the plaintiff presented no triable issue of fact See id. at 141. The
Eleventh Circuit reversed, holding that the experts' testimony was sufficiently reliable under Daubert. See
id. at 140. The appeals court declared that a ruling excluding scientific evidence under that decision is
subject to a more stringent standard of review-a standard somewhere between abuse ofdiscretion and de
novo review. See id. The Supreme Court reversed and reinstated the grant ofsummary judgment, holding
that trial court decisions under Daubert are to be reviewed under the abuse-of-discretion standard
ordinarily applied to evidentiary rulings. See id. at 141. The Court rejected any distinction between
rulings that admit or exclude evidence and rejected a more stringent standard of review for evidentiary
rulings that are ·outcome-determinative.· Id. at 142-43. Two leading commentators hold the view that
appellate courts should have a wider latitude in reviewing decisions relating to the reliability of expert
opinion than allowed by Joiner, especially where the "more substantive· Daubert factors are used, because
such factors have little to do with witness credibility. CHRISTOPHER B. MUELLER & LAIRD C.
KIRKPATRICK, EVIDENCE § 1.17 at 741-42 (1999). Mueller and Kirkpatrick argue that questions relating
to validity are more like questions oflaw than fact. See id.
87. See Kumho Tire, 526 U.S. at 153-58.
88. See id. The Supreme Court scrutinized Carlson's testimony and emphasized that it rested, fU'St,
on his two-factor test and, second, on the efficacy of his visually inspecting a tire. See id. The Court had
doubts on both points. See id. First, it found no support for Carlson's two-factor test and, second, the
expert's own testimony shed doubt on the efficacy of his visual inspection (there were signs of more than
two abuse factors, and Carlson had no idea from looking at the tire how many miles it had been driven).
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C. Discussion ofthe Fifth Circuit Decision in Black v. Food Lion, Inc.
This survey now focuses on four Fifth Circuit decisions that further
define the gatekeeping roles of trial judges in determining the admissibility
of expert testimony under Daubert and Kumho Tire. 89 First, in Black v. Food
Lion, Inc., the court held that a magistrate judge abused his discretion in
allowing medical testimony that was not sufficiently reliable. 90 While
shopping, Maxine Black slipped and fell on the remains of a mayonnaise spill
in a Food Lion grocery store in Grand Prairie, Texas.91 Black immediately
sought medical treatment. 92 Her continuing complaints of persistent pain,
however, were unsupported by objective tests, including a diskogram and
Magnetic Resonance Imaging (MRI) scans. 93 One of Black's treating
physicians, Dr. Mary Reyna, a specialist in treating persistent pain, diagnosed
her condition as fibromyalgia syndrome-an affliction characterized by
generalized pain, poor sleep, chronic fatigue, and an inability to concentrate.94
At trial, over defendant's objections based on Rule 702 and Daubert, Dr.
Reyna testified that plaintiff's fibromyalgia was caused by hormonal damage
resulting from trauma from the fall. 95 The trial judge permitted her testimony,
primarily on the ground that the expert had followed a proper protocol by
eliminating other possible causes offibromyalgia.96 Sitting without a jury, the
id: Two leading commentators remind us that the Daubert court said that the role of the trial judge
is not to determine whether the expert is right or wrong, but whether he can give reliable evidence (the
focus ofthe court is "solely on principles and methodology, not on the conclusions" generated). MUELLER
& KJRKPATRICK, 1999 FEDERAL RULES Of EVIDENCE, at 441. Mueller and Kirkpatrick question whether
the Court's analysis in Kumho nre focuses on "conclusions" rather than "reasoning and methodology."
ld.
89. See Black v. Food Lion, Inc., 171 F.3d 308 (5th Cir. Mar. 1999); Bartley v. Euclid, Inc., 158
F.3d 261 (5th Cir. Oct. 1998); Tanner v. Westbrook, 174 F.3d 542 (5th Cir. Apr. 1999); Curtis v. M&S
Petroleum, Inc., 174 F.3d 661 (5th Cir. May 1999).
90. 171 F.3d 308 (5th Cir. Mar. 1999).
91. See id. at 309.
92. See id.
See
93.
94.
95.
96.
See id.
See id.
See id.
See id. at 310. The Fifth Circuit quoted the magistrate judge who based his decision to admit
Dr. Reyna's testimony on several factors:
[T]he court looks to the trial testimony presented by Dr. Reyna as well as that of the other
medical experts whose testimony was presented by deposition ....
. . . . Despite the elusiveness which forecloses an absolute determination of causality, the
specialists in the field recognize an accepted protocol in rendering an opinion in terms of
reasonable medical probability....
The evidence in this case reflects that Dr. Reyna followed this protocol In reaching her
opinion, by ruling out other possible causes for Ms. Black's fibromyalgia. Specifically, the
documentary evidence and the testimony of Dr. Reyna show that Dr. Reyna fully apprised
herself of Ms. Black's prior medical history before the accident, that she determined that no
post-accident incident was an intervening cause for the onset of Ms. Black's fibromyalgia, and
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magistrate judge found for Black and defendant appealed. 97
The Fifth Circuit affirmed on liability but reversed on damages, holding
that the trial judge abused his discretion in admitting Dr. Reyna's medical
testimony on causation that was not sufficiently reliable under Daubert and
Kumho Tire. 98 The appellate court acknowledged that Kumho Tire dealt
specifically with engineering testimony, but said that the Supreme Court's
reasoning there fully supported the Fifth Circuit's en banc holding in Moore
v. Ashland Chemical, Inc. that medical testimony is governed by Daubert,99
The appeals court began by explaining how the gatekeeping inquiry
might be conducted, declaring that in the vast majority of instances the trial
judge should first decide whether the Daubert guidelines are relevant to the
case before it. loo After determining their applicability, the judge may next
consider whether other factors, not mentioned in Daubert, might be
appropriately used to determine scientific reliability.lol The Fifth Circuit then
turned to the case at hand, finding that Dr. Reyna's theory of medical
causation-that the fall caused trauma resulting in hormonal damage leading
that no other factors-based upon her review of tests perfonned prior to accepting Ms. Black
as a patient, as well as those tests which Dr. Reyna, herself, directed to be made-contributed
to Ms. Black's fibromyalgia.
[d. at310.
97. See id.
98. See id. at 312. Plaintiff's "burden under Texas law was to prove to a reasonable degree of
medical certainty, based on a reasonable medical probability and scientifically reliable evidence," that her
fall at Food Lion caused her injuries. [d. at 310.
99. See id.; Moore v. Ashland Chern., Inc., 126 F.3d 679 (5th Cir. 1997), rev 'd en bane, lSI F.3d
269 (5th Cir. Aug. 1998). When Moore was ftrst before the Fifth Circuit, a divided panel held that a trial
jUdge erred in subjecting clinical medical testimony to Daubert principles and excluding a physician's
opinion that exposure to chemicals had caused plaintiff's pulmonary illness. See Moore, 126 F.3d at 682.
The Fifth Circuit ruled that the Daubert factors were inappropriate in assessing the reliability of clinical
medical testimony and that the proper standard for screening such testimony was whether it was wellgrounded in the knowledge, principles, and methodology of clinical medicine. See id. However, sitting
en bane, the Fifth Circuit (12-3) rejected the panel's conclusion and ruled that the trial judge did not abuse
her discretion in excluding the causation evidence. See Moore, lSI F.3d at 271. The en banc majority
concluded that detennining the etiology of a disease is a scientific exercise calling for application of the
Daubert factors and that the physician's testimony lacked scientific support, primarily because he
produced no published literature to support his opinion. See id. at 278-79. Applying the Daubert
guidelines most rigorously, the Fifth Circuit held that a physician cannot express an opinion on causation,
however well-grounded in the principles of clinical medicine, unless that opinion is fully corroborated by
hard science factors. Seeld. For detailed discussion and criticism of Moore, see Robert A. Weninger,
Fifth Circuit Survey: Evidence, 30 TEX. TECH L. REv. 683, 70S-IS (1999). The author argues the
following: I) that Moore violates policy and precedent and is in conflict with decisions in other federal
circuits, 2) that it is mistaken in its assumption that Daubert always requires that scientific literature
support credible causation testimony, 3) that insistence upon strict compliance with hard science factors
in all cases is unfortunate in that it may seriously disturb the balance of power between judges and juries,
and 4) that it may require judges to pretend that they are knowledgeable in matters in which they are no
more so than jurors. See id. For an insightful analysis of Moore by Thomas R. Reavley, Senior Judge,
U.S. Court of Appeals, Fifth Circuit, and Daniel A. Petalas, Law Clerk to Judge Reavley, see Thomas R.
Reavley &. Daniel A. Petalas,A Plea/or Return to Evidence Rule 702, 77 TEX. L. REv. 495 (1998).
100. See Food Lion, 171 F.3dat311-l2.
101. See id.
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to fibromyalgia-failed under the Daubert factors. I02 The court said that her
theory had not been verified by testing and had not been peer-reviewed; it did
not have a known potential rate of error and it did not satisfy the test of
general acceptance. IOO The court said that Dr. Reyna herself recognized that
fibromyalgia had no known etiology (i. e., medical science does not know
whether the condition is caused by muscle, nerve, or hormone damage). 104 It
declared, "If medical science does not know the cause, then Dr. Reyna's
'theory' of causation, to the extent it is a theory, is isolated and
unsubstantiated. nlOS
The trial judge concluded that Dr. Reyna had followed a proper protocol
by eliminating other possible causes of fibromyalgia. I06 The appeals court
nonetheless rejected her analysis: 107
This analysis amounts to saying that because Dr. Reyna thought she had
eliminated other possible causes of fibromyalgia, even though she does not
know the real 'cause,' it had to be the fall at Food Lion. This is not an
exercise in scientific logic but in the fallacy of post-hoc propter-hoc
reasoning .... Dr. Reyna could have concluded that if Black had gone on a
trip to Disney World and been jostled in a ride, that event could have
contributed to the onset of fibromyalgia.
The court's task was to determine whether Dr. Reyna's methodology
tied the fall at Food Lion by some specific train of medical evidence to
Black's development offibromyalgia. No one doubts the utility of medical
histories in general or the process by which doctors rule out some known
causes of disease in order to finalize a diagnosis. But such general rules
must, under Daubert, Kumho Tire, and Moore, be applied fact specifically
in each case. The underlying predicates of any cause-and-effect medical
testimony are that medical science understands the physiological process by
which a particular disease or syndrome develops and knows what factors
cause the process to occur. Based on such predicate knowledge, it may then
be possible to fasten legal liability for a person's disease or injury. lOB
Noting that the exact process that results in fibromyalgia is unknown and that
the factors that trigger the development of that condition are also unknown,
102.
103.
104.
105.
106.
See id.
See id. at313.
See id.
Jd.
See id. at 310.
The appeals court described the protocol followed by the magistrate judge:
He then found that Dr. Reyna followed this protocol by (a) taking a medical history from
Black, (b) ruling out prior or subsequent "causes" offibromyalgia, (c) performing or reviewing
physical tests [which all turned up negativel, and (d) deducing that the Food Lion fall was the
only possible remaining cause offibromyalgia that appeared nine months later.
Jd. at313.
108. Jd. at 313·14.
107.
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the appeals court concluded that "no scientifically reliable conclusion on
causation can be drawn," in this case. 109 The court said that if the trial judge
thought he was applying Daubert, he seriously erred by applying its specific
criteria "at a standard of meaninglessly high generality rather than boring in
on the precise state of scientific knowledge in this case." 110 If the trial judge
purposefully chose to depart from the Daubert guidelines, he failed to
articulate sound reasons for adopting the tests he did use. III
D. Discussion ofthe Fifth Circuit Decision in Bartley v. Euclid, Inc.
Plaintiffs in Bartley were five men who, in the course of their
employment, drove 120-ton vehicles to haul coal from open pit coal mines in
Texas. 1l2 The vehicles they drove were termed "short-nosed" haulers because
the manufacturer, defendant Euclid, designed them with a short wheelbase and
an engine mounted under (rather than in front of) the operator's cab. ll3 It was
not disputed that drivers of the short-nosed hauler experienced excessively
rough rides. I14 Plaintiffs sued Euclid, claiming that they sustained spinal
injuries from severe vibrations and jolting caused by the hauler's
unreasonably dangerous design. lIS Judgments were entered upon jury verdicts
for four ofthe five drivers. 116 Appeals were taken, and a divided panel of the
Fifth Circuit upheld the judgments. ll7 On rehearing en bane, the court of
appeals (14-2) affirmed the district court, ruling that the trial judge did not
abuse his discretion in admitting plaintiffs' expert testimony.IIS
The testimony oftwo medical doctors was at issue. 1l9 Dr. Samaratunga,
a neurosurgeon, had taken the histories of plaintiffs, reviewed their medical
records, and examined and treated them. l20 Based on his review of their MRI
scans, he testified that the five drivers sustained extensive fractures in the
endplates of their spines. 121 Also, the spinal damage demonstrated by the
MRIs was unlike the damage shown by the scans of his other (non-hauler
driver) back pain patients, who had not sustained damage across all three
109.
Id.at314.
Id.
See id.
112. See Bartley v. Euclid, Inc., 158 F.3d 261 (5th Cir. Oct 1998), qffden bane, 180 F.3d 175 (5lh
Cir. June 1999).
113. See Bartley, 180 F.3d at 177.
114. See id.
115. See id.
116. See id
117. See id.
118. See id.
119. See id. at 178.
120. See id.
121. See id.
110.
Ill.
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regions oftheir spines:22 Finally, based on his review ofthe two sets ofMRIs
exhibited by Dr. Aprill (as discussed below), Dr. Samaratunga concluded that
plaintiffs' endplate fractures were caused by severe jolts and whole body
vibrations. l23 The doctor even rode one of the short-nosed haulers to
personally experience the roughness of its ride. 124
On cross-examination, Dr. Samaratunga admitted that he was not an
authority on vibration and had not performed any studies or published any
articles on that subject. l25 Nor was he a statistician or epidemiologist. 126 He
also conceded that he could not point to any scientific literature concluding
that the levels of vibration measured in the short-nosed haulers could cause
the injuries of which the plaintiffs complained. 127
Dr. Charles N. Aprill, a radiologist, also testified as plaintiffs' medical
expert. 128 However, he did not claim knowledge of the short-nosed haulers
and testified only about the compression fractures pictured on the MRIs of
their drivers. 129 He exhibited the scans of ninety hauler drivers (the five
plaintiffs plus eighty-five other hauler drivers) and testified that the pictures
of the spines of persons in this group demonstrated cumulative, repetitive
vertical fractures-eompression injuries which were common to all ninety
MRIS. 130 The cracked endplates, he testified, indicated extensive and
prolonged trauma. 131 Dr. Aprill also produced the MRIs of eighty other (nonhauler) back pain patients. 132 Controlling for such factors as age, weight,
gender, and smoking, Dr. Aprill compared the two sets of scans. 133 His
comparison revealed that the hauler drivers had not only more fractured
endplates than patients in the control group, but also that they had an unusual
distribution offractures throughout their spines. 134 Hauler drivers experienced
repeated vertical compression failure in both the dorsal and lumbar regions-a
122.
123.
See id.
See Bartley v. Euclid, Inc., IS8 F. 3d 261, 280 (Sth Cir. Oct. 1998), affd en bane, 180 F.3d
17S (Sth Cir. June 1999).
124. See id.
12S. See id.
126.
127.
128.
129.
130.
131.
132.
133.
See id.
See id.
See id.
See id. at 280.
See id. at 267-68.
See id. at 268.
See id. at 267-68.
See Bartley, 180 F.3d at 178. Dr. Aprill explained that:
[T]he endplate is at the end of the vertebra at the top and bottom of each disc. These
cartilaginous plates fracture when a vertical load is applied to the disc and the disc presses
against the endplate. Endplate cracks change the environment in the discs, leading to disc
degeneration, which makes the disc vulnerable to compression injury. As such, fractured
endplates are the hallmark of compression failure.
Id.
134.
See Bartley, IS8 F.3d at 268.
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pattern that the doctor said was the "fingerprint" of the hauler groUp.13S
Buttressing his testimony with medical literature, Dr. Aprill pointed to an
article supporting his conclusion that exposure to whole body vibrations
causes structural damage to the endplates. 136 The more qracking in the
endplates, the more degeneration in the discs, the more likely that back pain
will result. 137
On cross-examination, Dr. Aprill conceded that different radiologists
could draw different conclusions from a MRI. 138 He also testified that he had
not seen the MRIs of the operators of other heavy equipment, such as
bulldozers, tractors, or dump trucks, and therefore had not compared the scans
ofhauler drivers with those of other large vehicle operators. 139 Nor, within the
hauler driver group, had he compared the MRIs of drivers who operated only
haulers with those of drivers who operated both haulers and other large
vehicles. 14O Thus, as for plaintiffs who also operated other heavy equipment,
he could not determine which of the various large vehicles might have been
the cause of their endplate fractures. 141 Further, Dr. Aprill stated that the
incidence of endplate infractions is approximately forty percent for "the
normal population without any occupational stresses" and that anyone
"subjected to repetitive compression, whatever the source, is likely to develop
changes similar to what we saw. "142 Nor could he point to any study showing
how much vibration was required to produce the injuries he identified. 143 He
was not a statistician or epidemiologist and he had not submitted his
methodologies and conclusions for peer review or publication. 144 Finally, like
Dr. Samaratunga, Dr. Aprill was not an authority on vibration and had not
performed any studies or published any articles on that subject. 145
Euclid presented the expert testimony of Dr. Gallman, also a
radiologist. 146 He testified that he had never encountered the term "endplate
infraction" in medical literature and that Dr. Aprill must have invented it,
"especially for use in this litigation. "147 He also testified that he had examined
the plaintiffs' MRIs and had discovered no abnormalities. 14K Rather, he
testified, the phenomenon described as an 'endplate infraction' is not at all
135.
136.
137.
138.
139.
140.
141.
142.
143.
144.
145.
146.
147.
148.
ld.
See id.
See Bartley, 180 F.3d at 178.
See id. at 181-82.
See Bartley, 158 F.3d at 280.
See id.
See id.
ld. at 279-80 (emphasis added).
See id. at 280.
See id.
See id.
See Bartley, 180 F.3d at 181.
ld.
See id.
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unusua1. 149 Such a condition has no speCial significance and could be seen
"every day on multiple studies of patients from all walks of life."'50 Dr.
Gallman's views were supported by Dr. Pope, another defense expert. ISI
Euclid moved for summary judgment, arguing that pla.intiffs' medical
testimony should have been excluded under Daubert standards. 1S2 The district
court, however, denied summary judgment, finding that the testimony of
claimants' doctors was relevant and reliable. 153 The court noted the existence
of a body of medical literature which dealt with repetitive trauma back
injuries which supported plaintiffs' experts' opinions. l54 The court said that
their theories could be tested and that their methodologies were derived from
other accepted methodologies. m
The first time Bartley v. Euclid, Inc. was before the Fifth Circuit, a
divided panel held that the district court did not abuse its discretion in
admitting plaintiffs' expert testimony.'56 It said that the trial judge had
considered the Daubert factors in the aggregate and, on balance, had properly
received the evidence. ls7 Upon further review, the en banc court accepted the
prior panel's conclusion that the testimony was relevant and reliable. u8 The
majority opinion devoted only two paragraphs to expert witness evidence. ls9
It noted first that plaintiffs' radiologist, Dr. Samaratunga, and neurosurgeon,
Dr. Aprill, were both qualified to testify as to their conclusions on the
readings of the MRIs and the injuries suffered by plaintiffs. '60 The court
pointed out that, although Dr. Aprill testified to the compression fractures
shown on the MRIs, he was not a causation witness. 161 He had described his
two-set comparison ofMRIs as a "study," but the court said "[t]he 'study' was
nothing more than a comparison of otherwise admissible findings or
exhibits."162
E. Discussion ofthe Fifth Circuit Decision in Tanner v. Westbrook
This medical malpractice case arose from the desperate circumstances
surrounding the birth of Jennifer Tanner, a young child who now suffers from
149.
ISO.
lSI.
1S2.
IS3.
IS4.
ISS.
156.
157.
158.
159.
160.
161.
162.
See id.
Id.
See id.
See Bartley, 1S8 F.3d at 266, 268.
See id. at 268.
See id.
See id.
See id. at 269.
See id.
See id.
See Bartley, 180 F.3d at 179.
See id.
See id.
Id.
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cerebral palsy.163 Plaintiffs are her parents, Frank and Daisy Tanner, who
allege that the defendants-Dr. Wade Westbrook, their obstetrician, Dr. Manoj
Narayanan, their pediatrician, and Baptist Memorial Hospital-Desoto, Inc.
(BMH) in Mississippi, where Jennifer was born-were negligent in their
treatment of Jennifer during the hours after her birth and that their negligence
resulted in her cerebral palsy. 1M At trial, both sides presented conflicting
evidence concerning the cause of Jennifer's condition. 165 Dr. Narayanan was
exonerated, but judgment was entered upon a jury verdict for plaintiffs against
Dr. Westbrook and BMH. I66 On appeal, a panel of the Fifth Circuit vacated
the judgment and ordered a new trial, ruling that the trial judge abused his
discretion in admitting the causation testimony of plaintiffs' expert because
it failed the Daubert standard of reliability and relevance. 167
Mrs. Tanner was admitted to BMH in labor on the morning of August 29,
1993. 168 She experienced complications at 11:25 p.m., and Dr. Westbrook
delivered the baby at 12:03 a.m. the next day. 169 Jennifer was not breathing
upon birth and Dr. Westbrook attempted to resuscitate her with an oxygen
mask and then by endotracheal tube. 170 The baby did, however, began to
breathe on her own about 12:30 a.m. m Shortly afterwards, Jennifer was taken
to the newborn nursery.172 Dr. Narayanan was called to attend to her, but he
did not arrive at BMH until 1:30 a.m. 173 The Tanners testified that between
12:45 a.m. and 1:30 a.m. the baby was left in the nursery unattended, although
a nurse during this interval examined Jennifer and determined that she was
experiencing respiratory distress and possibly seizures. 174 Dr. Westbrook
admitted that while Jennifer was in the nursery he did not actively monitor her
condition. 175
Following his arrival at the hospital, Dr. Narayanan ordered tests which
were completed at 1:55 a.m., the results of which indicated the presence of
acute severe metabolic acidosis.1 76 To relieve this condition, Dr. Narayanan
directed that sodium bicarbonate be administered, and this was completed by
163. See Tanner v. Westbrook, 174 F.3d 542, 544 (5th Cir. Apr. 1999).
164. See id. at 54445.
165. See id.
166. See id. at 544.
167. See id.
168. See id.
169. See id. "Mrs. Tanner's labor progressed nonnally throughout the day, but at 11:25 p.m., the
baby's fetal heart tracing became abnonnal. The attending nurse was unable to apply a fetal scalp
electrode to properly monitor the baby's heart rate between this period and Jennifer's birth." [d.
170. See id.
171. See id.
172. See id.
173. Seeid.
174. See id.
175. See id.
176. See id. Acidosis is a condition caused by an accumulation oflactic acid in the bloodstream
resulting from diminished tissue oxygenation. See id.
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EVIDENCE
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669
3:15 a.m.!'7 Thereafter Jennifer's respiration improved, but at 11:55 a.m. she
began to have seizures. 171 She was then transferred to another hospital and
was later diagnosed with cerebral palsy.l79
At trial plaintiffs presented the expert testimony of two medical doctors,
Drs. Nestrud and St. Amant, who testified on the issue of causation. 110 The
Tanners' theory of recovery was that their daughter's cerebral palsy resulted
from birth asphyxia which the defendants failed to properly treat during the
hours immediately after the baby's delivery. III Asked on direct examination
for his opinion as to "whether had Jennifer been properly resuscitated she
more than likely ... would have been normal," Dr. Nestrud replied, "It is my
opinion that a baby with an APGAR score of 3 with no other problems can
be-can be fully resuscitated."182 Further, Dr. Nestrud was allowed to testify
to the etiology of Jennifer's condition and on whether alternative treatments
would have permitted her to lead a normal life.113 He opined that the asphyxia
that began just before Jennifer's delivery caused her cerebral palsy and that
if the defendants had followed proper procedures in treating her asphyxia, she
"would not have had the brain damage that she has now. nl84 Both Drs. Nestrud
and St. Amant testified, based on medical literature and on their personal
knowledge and training, that birth asphyxia is a cause of cerebral palsy. lIS
Based on their experiences as obstetricians and neonatologists, they reiterated
that Jennifer suffered from asphyxia at birth and that with proper treatment
her cerebral palsy need not have developed. 116
Defendant BMH, however, maintained that the incident that caused her
asphyxia occurred before Jennifer was ever born. 117 While BMH agreed that
Jennifer suffered from asphyxia at birth, it disagreed that her brain damage
was caused by either her asphyxia or defendants' treatment of it.118 In support
of its position, BMH furnished the trial judge with medical literature stating
that birth asphyxia is seldom a cause of cerebral palsy and that a great
proportion of cerebral palsy cases go unexplained. 189 The medical literature
also stated that when birth asphyxia is so serious as to result in cerebral palsy,
there usually is evidence of damage to major non-vital organs. 19O BMH also
177.
178.
179.
180.
181.
182.
183.
184.
185.
186.
187.
188.
189.
190.
See id.
See id.
See id.
See id. at 547.
See id.
[d. at 545.
See id. at 546.
[d.
See
See
See
See
See
See
id. at 547.
id.
id.
id.
id.
id.
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furnished an expert's affidavit asserting that there was no such organ damage
in this case. 191 These materials formed the basis for BMH's argument that the
child's cerebral palsy was likely triggered not by birth asphyxia, but by
congenital defects. 192
Plaintiffs responded to BMH's argument by furnishing the trial judge
with supporting medical literature and their experts' affidavits and deposition
testimony, which linked Jennifer's cerebral palsy to her post-birth asphyxia. l93
In their affidavits, Drs. Nestrud and St. Amant said that they eliminated a
congenital defect as an explanation of her condition because Jennifer showed
no signs of any such defect. l94 They further asserted that her symptoms,
including the absence of any damage to her non-vital organs, were consistent
with their conclusion that birth asphyxia explained her cerebral palsy.19s The
court noted that Dr. Nestrud had stated in his deposition that a "good physical
examination by a qualified physician" was required to eliminate a genetic
defect as a cause, but that he also admitted that he had not conducted or
reviewed such an examination. l96
The appeals court concluded that while Dr. Nestrud was qualified to
testify reliably about the standard of care required of a doctor treating a baby
for asphyxia, he could not testify reliably about the cause of Jennifer's
cerebral palsy, primarily because of his lack of specialized knowledge on the
causation issue in this case:
He has no background in studying the causes of cerebral palsy. He bases his
opinion on causation in part upon articles which state that asphyxia causes
cerebral palsy. This fact is not disputed. What is in dispute is whether it is
more likely than not that a baby with Jennifer Tanner's symptoms developed
cerebral palsy as a result of the hospital's negligent treatment of her birth
asphyxia.... "The trial court had to decide whether this particular expert had
191. See id.
192. See id. at 547-48.
The medical literature states that birth asphyxia is rarely a cause of cerebral palsy and that a
large proportion of cases of cerebral palsy remains unexplained. The medical literature also
indicates that when birth asphyxia is severe enough to cause cerebral palsy, there is usually
evidence ofcorresponding major organ damage. The organ damage is caused by preferential
perfusion, a phenomenon triggered by asphyxia in which there is a redistribution of blood flow,
with increased flow to the head and heart and decreased flow to non-vital organs. Jennifer
Tanner did not suffer from major organ damage in conjunction with her cerebral palsy.
Furthermore, the literature maintains that many of Jennifer's symptoms in the hours after her
birth support the conclusion that she suffered from congenital defects which, rather than
asphyxia, probably triggered her cerebral palsy. Moreover, one study specifically stated that
"[a] failure of medical personnel to react to evidence of ... asphyxia was followed by a greaterthan-expected frequency· of neonatal apnea and seizures, but not CPo•
Id. (internal citations omitted).
193. See id. at 548.
194. See id.
195. See id.
196. Id.
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EVIDENCE
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sufficient specialized knowledge to assist the jurors in deciding the particular
issues in this case. n (citing Kumho Tire). Based on the materials before the
trial judge, Or. Nestrud did not have the kind of specialized knowledge
required to testify regarding causation, nor did he rely upon medical
literature directly addressing the causation issue in this case. This deficiency
rendered his expert testimony as to a critical issue in the case-causationunreliable. 191
197. [d. It is expected that courts, in complex and technical areas, may find it difficult to determine
the relevance and reliability ofexpert opinions. In his opinion in General Electric v. Joiner, 522 U.S. 136
(1997), Justice Breyer suggested that trial judges might be better prepared to deal with complicated
scientific or technical evidence ifthey appointed experts to assist them in resolving gatekeeping questions.
[d. at 149-59 (Breyer, J., concurring). However difficult the work ofjudges facing such problems, almost
as challenging is the task of a reviewer, not trained in science or clinical medicine, who would comment
upon ajudicial decision on a subject as complicated and specialized as the etiology ora child's cerebral
palsy. To ease that burden-just as a trial judge might appoint an independent expert-a commentator may
seek the assistance of knowledgeable, neutral persons to help illuminate matters under review. This writer
benefitted from the knowledge of such an individual, an expert in perinatal care, who read the Ttl1I1Ier
decision and the appellate briefs (which were loaned to us by the Clerk of the Fifth Circuit Court of
Appeals). This individual's request to remain anonymous is respected. He reported his evaluation of the
decision as follows:
Two issues must be resolved in this case. The first is whether an expert's application of
scientific principles and methodologies is sufficiently valid to insure the reliability of the
expert's testimony. To this issue Daubert guidelines are applicable. The second issue is the
choice between alternative plausible causal explanations for the occurrence of cerebral palsy
(CP) in this particular child. To this issue scientifically reliable evidence is applicable.
Regarding the first issue, the appel1ate court remanded for retrial after excluding
testimony on causation by the plaintiffs' expert on the grounds that the expert was not reliable
because he neither examined the child nor conducted research on the etiology of CPo This
application of Daubert guidelines is selective at best because evidence subject to similar
objections was admitted at trial and cited in the appellate decision. For instance, evidence
concerning the normalcy of the pregnancy is not challenged despite the facts that (i) no
scientific foundation was laid for determining what parts of the antenatal record are germane,
(ii) the reliability of the methods by which antenatal data were obtained was not established,
and (iii) those testifying on the antenatal records need not have had any direct contact with the
pregnancy.
Resolution of the second issue depends on evidence that clearly supports one plausible
causal explanation over another. Here the plaintiffs' case is weakened by a less-thancompelling presentation ofevidence. Specifically, the same expert who the defendant uses to
establish an antenatal etiology for most cases of CP acknowledges in published research
reviews that birth asphyxia can cause CPo The Court seems left unaware of this fact. The
plaintiff then compounds this deficiency by failing to use the available science and medical
records to systematically consider and reject potential antenatal causes of CP (e.g., a family
history of CP. maternal prenatal infection, prenatal chemical exposure, fetal malformation or
abnormal growth).
With these deficiencies remedied. it would be reasonable to expect a jury to reject the
defendant's causation argument. Using the same reliable expert scientific testimony introduced
by the defendant, the plaintiffshould be able to show by a preponderance of evidence that this
child's CP was caused by birth asphyxia that could have been ameliorated by standard
resuscitative treatment.
Unpublished memorandum on file with the Texas Tech Law Review.
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F. Discussion ofthe Fifth Circuit Decision in Curtis v. M&S
Petroleum, Inc.
Plaintiffs, workers, and their wives at a refinery in Mississippi brought
this products liability action alleging that they experienced numerous health
problems after their exposure to excessive levels of benzene in a chemical
product, Heavy Aromatic Distillate (HAD), used in the production of fuel at
their place of employment. 198 Defendants were various owners and operators
of the refinery and E.I. DuPont de Nemours and Company ("DuPont"), the
manufacturer ofthe chemical. l99 Claimants alleged that their toxic exposure
to benzene, the principal component of HAD, was due to negligent and
intentional acts of defendants. 2oo The trial judge excluded the testimony of
plaintiffs' expert witness as failing the Daubert standard of admissibility and
then granted judgment as a matter oflaw for defendants. 201 The Fifth Circuit
held that the trial judge abused his discretion in excluding the testimony and
remanded the case for trial. 202
At issue in Curtis was the testimony of Dr. Frank Stevens, an industrial
hygienist whose opinion was that the symptoms experienced by plaintiffs
were caused by their exposure to benzene and that this exposure subjected
them to long-term health risks. 203 In particular, he concluded that exposure to
benzene at levels of 200-300 ppm would cause the injuries they suffered. 204
After considering his report and in limine testimony, the trial judge
determined that while Dr. Stevens had adequate support for his theory of
medical causation, his testimony was unreliable in two major respects. 20S
First, he did not eliminate other possible causes of plaintiffs' injuries. 206
Second, plaintiffs had failed to demonstrate with sufficient certainty the
amount of benzene to which they were exposed. 207
On appeal, the Fifth Circuit found that various sources supported Dr.
Stevens' theory of causation.2os He relied upon several scientific studies
establishing a connection between exposure to high concentrations of benzene
198. See Curtis v. M&S Petroleum, Inc., 174 F.3d 661, 664 (5th Cir. May 1999). Upon their
exposure to HAD, the refinery workers experienced headaches, nausea, dizziness, diarrhea, and a lack of
energy. See id. at 666. Some wives ofworkers experienced these same symptoms when exposed to their
husband's skin and clothes. See id. Plaintiffs also alleged that they suffered emotional distress stemming
from their fear of contracting cancer or other catastrophic diseases. See id. at 667.
199. See id. at 665.
200. See id. at 664.
201. See id.
202. See id. at 672.
203. See id. at 668.
204. See id. at 670.
205. See id.
206. See id.
207. See id.
208. See id. at 669-70.
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and the kinds of symptoms which plaintiffs experienced. 209 He also referred
to the OSHA standard on benzene210 and DuPont's material safety data sheet
("MSDS"), both of which identified the types of harmful effects which
plaintiffs claimed to have suffered. 2Il The court noted that, to prepare a
MSDS that accurately describes the environmental and health hazards of a
product, a manufacturer must research the most sound, peer-reviewed
scientific literature in the field. 212 In addition, Dr. Stevens relied on a
toxicological profile for benzene that was published by the government. 213
This profile summarized as of 1995 all the epidemiological and animal studies
concerning the toxicity of benzene.214 Further, he considered the case of
Industrial Union v. American Petroleum Institute in which the United States
Supreme Court reviewed several studies concerning the adverse health effects
of benzene and the exposure levels on which they occur. m
In addition to the scientific literature, Dr. Stevens pointed to the strong
temporal connection between the plaintiffs' exposure to the chemical and the
onset of their symptoms.216 The court said that while a temporal connection
standing alone is entitled to little weight in determining causation, it is entitled
to greater weight when there is either scientific literature or circumstantial
evidence supporting the causal connection. 217 Finally, even though Dr.
Stevens did not testify to the precise level of benzene to which the workers
were exposed, his finding was that their exposure level was several hundred
times greater than the permissible exposure level.218 The court said that this
finding was well-grounded because the workers began to experience wellknown symptoms of overexposure to benzene shortly after HAD was first
used at their place of employment, the Draeger tube tests performed by them
indicated excessive levels of benzene within the refinery, the daily tasks
performed by the workers made overexposure likely, and the design of the
refinery-originally intended to process crude oil-did not permit escape of
209. See id. at 669.
210. See 29 C.F.R. § 1910.1028 app. A (1998).
211. See Curtis, 174 F.3d at 669-70. Both the MSDS and the OSHA standard described the short
and long-tenn hazardous effects of inhalation ofbenzene and dennal contact with benzene. See id. at 669.
The short-tenn effeet5 described in these documents were headaches, nausea, dizziness, diarrhea, and a
lack of energy. See id. at 669 n.7. The effects of long-tenn exposure, even at relatively low
concentrations, included various blood disorders, ranging from anemia to leukemia. See id.
212. See /d. at 669.
213. See id.
214. See /d. at 669·70. The toxicological profile for benzene was published by the U.S. Department
of Health and Human Services. the Public Health Service, Agency for Toxic Substance and Disease
Registry. See id.
215. 448 U.S. 607 (1980).
216. See Crutis, 114 F.3d at 610.
217. See id.; see also, Cavallo v. Star Enter., 892 F. Supp. 156 (E.D. Va. 1995), affd in part, 100
F.3d I1S0 (4th Cir. 1996), cert. denied, 118 S. Ct. 684 (1998) (stating that a temporal connection should
be given more weight when other circumstantial evidence supports a causal connection).
218. See Crutis, 174 F.3d at 671.
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noxious fumes into open air. 219
N. CONCLUSION
The evidence cases during this survey period provide continuing insight
into the gatekeeping role of the trial court in determining whether to allow
expert evidence under standards set out in the Supreme Court's holdings in
Daubert and Kumho Tire. These Fifth Circuit cases maintain the idea that the
Daubert test applies to all expert testimony instead of just testimony on
scientific matters. Further, the court's decision in Taylor narrows the scope
of when judicial notice may be taken. Once again, the Fifth Circuit should be
praised for its effort to clarify the Rules of Evidence.
219.
See id. at 670-73.
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