A Cautionary Note Regarding Expert Opinions on Causation in U.S. District Court

In an April 17 order, U.S. District Court Judge Stephen Wilson of the Central District of California in Los Angeles strictly applied federal rules and the Daubert standard to exclude causation testimony from Dr. Barry Horn and Dr. Arnold Brody.

In Sclafani v. Air & Liquid Systems Corp., the court applied California’s liberal causation standard found in Rutherford v. Owens-Illinois, Inc. (substantial factor contributing to the risk) and distinguished the recent unfortunate California Court of Appeal decision in Hernandez v. Amcord, Inc.  The result was good – defendants won summary judgment – but some of Judge Wilson’s rationale may also limit defense experts in future cases.

Citing Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, the court excluded causation opinions of both plaintiff experts.  In excluding the opinions of Brody, the court noted that he admitted his opinions regarding “every fiber” contributing to the risk had not been published in peer-reviewed literature and could not be tested. The court found that other opinions of Brody, supported by citation to four published papers that were not attached, were nevertheless inadmissible, as the papers themselves must be provided. These rulings caution that defense expert opinions may also be excluded if (a) not published in peer-reviewed literature or (b) to the extent based on studies that are not submitted along with the expert’s report.

The court further ruled that Horn’s opinions offered in deposition, but not found in his earlier Rule 26 report, were inadmissible. If this same standard were applied to defense expert Dr. Victor Roggli and his brief reports, for example, one can anticipate significant problems.