June 8, 2012

Expert Testimony Survives Daubert Challenge

A CECON food safety expert shares his experience of having his testimony successfully survive a Daubert challenge. A circuit court had ruled his testimony inadmissible, but on appeal this decision was reversed and his testimony was allowed.

Because the food safety expert sufficiently connected the proposed testimony with the facts of the case and because the food safety expert's extensive background in food safety circumstantially suggests he used a valid methodology in drawing his conclusions, his testimony survived the challenge.

Simply put, the Appeals Court believed that the food safety expert's opinion should be admissible because he explained precisely how the conclusions were reached and pointed to an objective source to show that his conclusions were based on a scientific method used by at least a minority of scientists in the field. The Appeals Court believed that the conflict between the positions taken by the parties regarding the food safety expert's conclusions did not render his testimony unreliable, but instead created a jury issue regarding the weight to be given to the testimony. Accordingly, the Appeals Court found that the circuit court erred in excluding the food safety expert's testimony.
The case was eventually settled out-of-court.

Details surrounding the decision can be found below.
In 2002, an individual in West Virginia ate at a fast food restaurant and ate a hamburger with fixings. He had eaten approximately one-quarter of his hamburger when he noticed that the burger was “red inside and wasn't done, it was raw,” “tasted funny” and that the texture was “soft.” After this observation, he discarded the remainder of the hamburger.  Within two hours after eating the hamburger, he began experiencing vomiting and diarrhea, and was admitted to hospital two days later diagnosed with foodborne illness and remained in the hospital for 10 days, although no pathogen was isolated from his stool.

A lawsuit was later filed against the restaurant chain for selling an “unsafe, unwholesome, or unfit food product.” During discovery, the appellants identified two experts. The first was the medical doctor in the hospital who would testify that the victim suffered from a foodborne illness caused by the hamburger. The second was an expert in food safety and toxicology from Michigan State University.

The food safety expert testified in a deposition that although the symptoms of the illness were most consistent with verotoxin (sometimes called shigatoxin) produced by E. coli O157:H7 bacteria, he became ill too quickly for a typical E. coli infection to have occurred; E. coli bacteria normally require an incubation period of three to seven days from ingestion to produce enough verotoxin in the gut to induce symptoms. Instead, The expert was of the opinion that E. coli bacteria was present on the ground beef in the hamburger; that the bacteria had produced verotoxin; and that the ingestion of the verotoxin in the hamburger had produced the rapid onset of the symptoms. The expert’s opinion was based upon a published scientific study which found that four days after E. coli bacteria was added to ground beef, verotoxins formed in the beef. 

After the completion of discovery, the appellee (the restaurant chain) filed a motion for summary judgment to exclude the testimony of the medical doctor and the food safety expert. The appellee argued that the doctor was unqualified to render medical testimony on injury and causation, and that neither his opinion nor The food safety expert's opinion met the standards of admissibility under Rule 702 of the West Virginia Rules of Evidence, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993). The circuit court concluded that under Rule 702, the medical doctor was not “qualified as an expert by knowledge, skill, experience, training or education.”

Further, the circuit court found that the food safety expert's opinion was “unreliable as a matter of law and inadmissible” under Daubert and Wilt. In the absence of the testimony of the two experts, the circuit court found insufficient evidence that the appellant suffered from a foodborne illness caused by the hamburger, and therefore granted summary judgment to the appellee.

The appellants took the case to the Supreme Court of Appeals of West Virginia in 2007 and argued that the circuit court misinterpreted the West Virginia Rules of Evidence regarding the admission of expert testimony, resulting in the improper exclusion of the experts' opinions.

In determining who is an expert, a circuit court should conduct a two-step inquiry.
First, a circuit court must determine whether the proposed expert (a) meets the minimal educational or experiential qualifications (b) in a field that is relevant to the subject under investigation (c) which will assist the trier of fact. Second, a circuit court must determine that the expert's area of expertise covers the particular opinion as to which the expert seeks to testify.

Daubert and Wilt provide several factors that a trial court can apply to assess the reliability of expert testimony: whether the scientific theory and its conclusion can be or have been tested; whether the scientific theory has been subjected to peer review and publication; whether the scientific theory's actual or potential rate of error is known; and whether the scientific theory is generally accepted within the scientific community. Other courts have developed additional factors, such as whether the scientific theory was developed for litigation or naturally flowed from the expert's research; whether the proposed expert ruled out other alternative explanations; and whether the proposed expert sufficiently connected the proposed testimony with the facts of the case. The Appeals Court of West Virginia held that because the summary judgment process does not conform well to the discipline and analysis that Daubert and Wilt impose, the Daubert/Wilt regime should be employed only with great care and circumspection at the summary judgment stage.

As a physician board-certified in internal medicine, with several decades of experience diagnosing and treating patients with foodborne illnesses, the doctor in the hospital met the minimal educational or experiential qualifications in a field that was relevant to the subject under investigation which would assist the trier of fact. A broad range of knowledge, skills and training would qualify him to offer his opinion regarding the diagnosis and cause of the illness. The overwhelming majority of courts that have addressed the issue have held that a medical opinion on causation based upon a reliable differential diagnosis is sufficiently valid to satisfy the reliability prong of the Rule 702 inquiry.

The appellants next argued that the circuit court erred in excluding the testimony of their food safety expert on the basis that his theory was unreliable. The expert indicated that the rapid illness was consistent with consuming pre-formed verotoxin produced by E. coli 0157:H7 bacteria in the undercooked hamburger. They argued that The food safety expert's theory was logical and was supported by published literature.

Based upon the symptoms, the food safety expert concluded to a reasonable degree of probability that the cause of the illness was from pre- formed verotoxin produced by E. coli in ground beef. To support this, the food safety expert cited a study in a journal which found that E. coli present in uncooked ground beef can produce verotoxin. Furthermore, the appellants point to the food safety expert's wealth of knowledge on the subject of food safety; the record contains The food safety expert's curriculum vitae, which extends for some 77 single-spaced pages. The appellees then pointed out that there were no laboratory results identifying the foodborne organism that caused the illness. Furthermore, while The food safety expert's opinion is based upon a study indicating that meat containing E. coli bacteria can develop verotoxins after four days at a temperature of 37○C (98.6○F), the appellee points out that The food safety expert presumed in forming his opinion that the hamburger was handled under “abusive” manufacturing conditions. In other words, the appellee contends that The food safety expert speculated that the meat in the hamburger was mishandled, and he speculated that the meat contained E. coli bacteria, when there is no direct evidence in the record to support that position.

However, the food safety expert said in his deposition that his opinion was based upon county health department inspection reports which, on five occasions, cited the specific restaurant for “temperature abnormalities” such as “temperatures that were either above the recommended temperature for storage of food or below the temperature for dishwasher use.” The appellants also stated that in proving a food poisoning lawsuit, positive proof by scientific testing is not required. Instead, the appellants argue that “[i]n the absence of direct evidence of the defectiveness of the food, recovery could be supported by circumstantial evidence if every other reasonable hypothesis as to the cause of the plaintiff's illness could be excluded.” Castleberry's Food Co. v. Smith, 424 S.E.2d 33 (Ga. 1992).

The Appeals Court agreed. The Appeals Court review of the record indicates that the food safety expert sufficiently connected the proposed testimony with the facts of the case. Because food poisoning is a fairly common illness, we see nothing novel in the food safety expert's theory that would warrant great interest in its publication. Further, a court may treat an expert's qualifications as circumstantial evidence that he or she has used a scientifically valid methodology or mode of reasoning in drawing his or her conclusions. Ambrosini v. Labarraque, 101 F.3d 129, 140 (D.C. Cir. 1996). The food safety expert's extensive background in food safety circumstantially suggests he used a valid methodology in drawing his conclusions.

Simply put, the Appeals Court believed that the food safety expert's opinion should be admissible because he explained precisely how the conclusions were reached and pointed to an objective source to show that his conclusions were based on a scientific method used by at least a minority of scientists in the field. The Appeals Court believed that the conflict between the positions taken by the parties regarding the food safety expert's conclusions did not render his testimony unreliable, but instead created a jury issue regarding the weight to be given to the testimony. Accordingly, the Appeals Court found that the circuit court erred in excluding the food safety expert's testimony.

The case was eventually settled out-of-court.

The food safety expert in this case holds a Ph.D. in Taxonomy of Staphylococci and Micrococci and is an experienced expert witness.

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