Thursday, October 18, 2007

Daubert Motions Require Full Hearings

Courts must supply litigators with an chance to be heard before sentiment on the admissibility of expert testimony - and in all but exceeding lawsuits that necessitates tribunals to throw hearings with full briefing and argument, the Supreme Court of Mississippi River ruled in an en banc opinion issued October 4th.

Reviewing a personal-injury lawsuit in which two misses were severely burned in a school autobus fire, the Supreme Court held that the trial justice erred when he struck an expert's affidavit without a hearing and entered summary judgment. The tribunal reversed the judgement and remanded the case.

While other federal and state tribunals have got recognized that in limine hearings are often the best manner to guarantee that expert-witness issues are decided fairly, the Mississippi River tribunal made clear that hearings should be held in all but the most drastic of cases. At the same time, it stopped short of requiring hearings in every case.

"We generally urge that the trial tribunal behavior an in limine hearing specifically on the subject, as this process volition ensue in full briefing and statement by the political political parties regarding the projected expert testimony," the tribunal said in an sentiment written by Presiding Justice Joseph Oliveer E. Dias Jr.

"This will not only help the trial tribunal in its mathematical function as evidentiary gatekeeper; it will supply a fuller record for an appellant tribunal should the parties competition the evidentiary ruling," Dias continued. "While an in limine hearing may not be necessary in all cases, it makes supply the most efficient mode of addressing the issue in many cases."

But the Supreme Court's head justice, Jesse James W. Ian Smith Jr., dissented from the opinion, joined by three other justices. He argued that the trial justice properly decided the movement without holding a hearing, because the affidavit was clearly defective. "The expert's affidavit was inadmissible because it was mere unsupported speculation, subjective belief, and decisions without any footing provided by dependable scientific methods and procedures," he wrote.


The implicit in judicial proceeding involved the two students' lawsuit against the Amory School District after their autobus caught fire and they were severely burned. Amory contended that a defect in the bus's propane combustible system caused the fire and it sought insurance from Prince Charles Clement, whose company had converted the buses from gasolene to propane.

When Amory's expert prepared an affidavit in support of this theory, Clement sought to hit it as deficient under the criteria of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), which the Mississippi River Supreme Court adopted in 2003 as the state criterion government expert testimony.

The trial court, without holding a hearing, granted Clement's movement to strike. In a little order, the trial justice said that the sentiments of Amory's expert were "nothing more than unsupported decisions which are devoid of a factual footing and not the merchandise of dependable rules and methods." Having struck the affidavit, the tribunal went on to come in summary judgement for Clement, finding that Amory offered no believable expert testimony to back up its theory of causation.


On appeal, the Supreme Court restated its retention in another 2007 lawsuit that litigators should have got an chance to be heard on the admissibility of expert testimony. The inquiry in this lawsuit was whether the political parties had such as an opportunity.

The trial tribunal had based its determination to hit on its reappraisal of the affidavit and of a rebuttal affidavit provided by Clement. It held no hearing on the movement to strike, but it did clasp a hearing on the movement for summary judgement that Clement filed together with the movement to strike. At that hearing, Amory argued that its expert should be given additional chance to expound on his theory.

Turning to federal lawsuits for counsel on the issues, the Supreme Court noted that two federal electrical circuits have got issued sentiments encouraging - but not requiring - trial Judges to throw in limine hearings before making Daubert determinations. Hearings do sense, the tribunal said, as the most cautious attack to complex evidentiary issues.

"Perhaps before Daubert, such as a finding could be made without a hearing, but the continual development of scientific discipline and the growth elaboratenesses of judicial proceeding authorization that we take the trial court's function as 'gatekeeper' seriously," the tribunal explained. "A hearing is simply the best method of guarding the admittance of expert testimony."

Still, not every lawsuit necessitates a hearing, the tribunal added. "Common sense informs us that in some lawsuits an expert may be drastically unsuited to testify; for example, for a deficiency of standing within the proffered field or a damaged background." Even then, however, the political parties must be given some other chance to be heard, such as as an chance to register substantial briefs.

That said, the tribunal was unequivocal in concluding that hearings should be conducted in all but the most clear-cut cases. Because Amory had no chance to be heard here, the tribunal said, the expert's affidavit was improperly struck and summary judgement improperly granted.

In his dissent, Head Justice Ian Smith asserted that not every Daubert movement necessitates a hearing and that trial tribunals should be given latitude to make up one's mind how best to mensurate an expert's reliability.

"[T]he indispensable demand is that the political parties have got an chance to be heard before the trial tribunal do a decision," he wrote. "A tribunal demand not throw an existent hearing in order to follow with Daubert."

The lawsuit is Smith v. Clement, No. 2006-CA-00018-SCT (Miss. 10/04/07).

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