Are too many expert witnesses being disqualified from testifying at Daubert hearings?
The US court of appeals thought so in the case of United Fire and Cas. Co. v. Whirlpool Corp., 704 F. 3d 1338 – Court of Appeals, 11th Circuit 2013.
The court reversed the exclusion of a metallurgist who was retained solely to testify in a products liability suit against a clothes dryer manufacturer.
The court stated:
The second expert whose testimony was categorically excluded by the district court was Dr. Clarke, a metallurgy expert with a master’s degree in extractive metallurgy, and a doctorate in fracture mechanics. United Fire retained Dr. Clarke as a metallurgist, not as a cause and origin expert. The sole purpose for which he was retained was to examine the metal exhaust tube within the dryer and estimate the temperature it reached during the fire.
Pointing to Dr. Clarke’s failure to cite some type of publication supporting his testimony that the metal in the tube melts at 2800 degrees, the district court ruled that the testimony did not satisfy the minimum indicia of reliability outlined in Daubert. However, reference to a published study involving dryer ducts is not necessary to demonstrate minimum scientific reliability. See Daubert, 509 U.S. at 593, 113 S.Ct. 2786 (“Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability….”). Indeed, given that the scientific literature on dryer ducts or low carbon steel may not be extensive, the fact that Dr. Clarke was not aware of any literature finding that dryer ducts have reached temperatures of 2800 degrees Fahrenheit hardly suggests that the methodology underlying Dr. Clarke’s conclusion was not minimally reliable. Dr. Clarke gave an extensive explanation of his methodology and explained how his education assisted him in reaching his conclusions.
Dr. Clarke is an engineer with advanced degrees and a specialty in metallurgy. He applied his advanced training and used several metallurgy imaging tools including an electron microscope to analyze the microstructural properties of the metal tube. Dr. Clarke’s specialized knowledge included familiarity with the temperatures at which different types of metal melt and the microstructural properties of metal that has been exposed to high temperatures. While his ultimate conclusions may be contested, it was an abuse of discretion to conclude that the basic methodology Dr. Clarke applied to analyze the metal dryer duct lacked minimum scientific reliability. We therefore reverse the exclusion of Dr. Clarke’s testimony.