The recent First Circuit decision of Milward v. Acuity Products Group, Inc. is an important case for plaintiff’s lawyers across the country to take note of. Most lawyers are familiar with the case of Daubert v. Merrell Dow Pharmaceuticals, Inc. which was aimed at preventing so-called “junk science” from finding its way into the courtroom. Unfortunately, since Daubert, many courts have been using the decision to exclude well-reasoned expert testimony that is not junk science but that should actually be admissible and be considered by the jury.
The problem is that over the years some judges have fallen into the misconception that Daubert required them to consider whether a given factual scenario necessitated one single “scientific outcome.” Milward clarified this and stated that the courts actually have a rather limited “gatekeeper role” when it comes to admitting expert testimony and the courts should not cross over the line of considering whether a given factual scenario necessitated one single scientific outcome.
Rather, the court’s only role under Federal Rule of Evidence 702 is to (1) determine whether an expert has applied an appropriate methodology and (2) determine whether there is reliable scientific data from which reasonable experts in the field could reach the same conclusions. In sum, assuming a proper scientific foundation has been laid, it is not for the court to second-guess an expert’s application of scientific judgment. The court cannot simply pick a side that it views as more credible and then bar the other expert from testifying.
The court overstepping its bounds is precisely what happened in the Milward case. Specifically, the First Circuit found that the trial court had “crossed the boundary between gatekeeper and trier of fact” when it excluded certain evidence related to whether exposure to a certain product can cause a certain type of cancer. The Milward court went on to state that “the proponent of the evidence must show only that the expert’s conclusion has been arrived at in a scientifically sound and methodologically reasonable fashion.”
Plaintiff’s lawyers should also be aware of the Restatement (Third) of Torts, Section 28, Comment C, upon which the Milward Court heavily relied. The section specifically rejects the idea of the “doubling the risk” requirement that some courts had imposed. Under this requirement, courts would require that the plaintiffs in toxic tort cases provide detailed scientific evidence that people exposed to the same toxin as the plaintiffs have shown a statistically significant increased risk of getting the given disease that is more than double the risk of the general population. Again, Comment C rejects this “double the risk” idea and refers to whether an expert has applied an appropriate methodology and there is reliable scientific data from which reasonable experts in the field could reach the same conclusions. The central point is that plaintiff’s attorneys now have newfound strong arguments for the admissibility of scientific data and testimony based on Milward v. Acuity Products Group, Inc. and the Restatement (Third) of Torts. Utilizing these two resources combined can go a long way in overcoming the Daubert hurdle.
If you have any questions about Daubert, Milward, or the Restatement (Third) of Torts, feel free to contact the attorneys at the Charles E. Boyk Law Offices, LLC at 419-241-1395 or 1-800-637-8170.