Academic journal article Defense Counsel Journal

If It's Not "Scientific," It's Not Daubertizable

Academic journal article Defense Counsel Journal

If It's Not "Scientific," It's Not Daubertizable

Article excerpt

If It's Not "Scientific," It's Not Daubertizable

Another panel of the Ninth Circuit has narrowed the application of the U.S. Supreme Court's Daubert standards only to "scientific" expert testimony, permitting an experienced mechanical and metallurgical engineer to offer alternate design testimony in a products liability case.

The district court had granted a forklift truck manufacturer summary judgment, excluding the proffered expert testimony of Martin Siegel on the ground that it was not based on "scientific knowledge," was not derived by a reliable and "scientific method" and did not amount to "good science." Siegel wanted to testify that the forklift should have had a barrier between the cargo and operator areas, although he had neither built nor tested that design. On the other hand, the plaintiff contended that Daubert did not apply because Siegel's testimony would be based on his knowledge, skill and experience.

A panel of Judges Fletcher, Pregerson and Wexler agreed with the plaintiff and concluded that Siegel's testimony should have been allowed because it would be "facially helpful and relevant," thus meeting the test of Rule 702 of the Federal Rules of Evidence, based on Siegel's "engineering experience and his having investigated hundreds of forklift cases over the past 30 years that a safety device is feasible." The manufacturer will have the opportunity, Judge Fletcher wrote for the panel, to cross-examine the expert to point out that he has not created or tested the alternate design.

The court was influenced by the lOth Circuit's decision in a similar case, Compton v. Subaru of America Inc., 82 F.3d 1513 (1996), which dealt with automobile design. Judge Fletcher also pointed out that Daubert itself stated that Rule 702 applies to "technical or other specialized knowledge." She also noted that two Ninth Circuit cases reaching the same conclusion-United States v. Cordoba, 104 F. …

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