Stotesbury v. Pirate Duck Adventure, LLC, Slip Copy, 2013 WL 5508131 (D.V.I. October 1, 2013).
In a recent case in the District Court of the Virgin Islands, Division of St. Thomas-St. John, Defendants sought to exclude portions of Plaintiffs’ proposed experts’ testimony. Senior District Judge Donetta W. Ambrose of the U.S. District Court of the Virgin Islands, applying Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), wrote that in order to decide Defendants’ motions to exclude expert testimony the trial court judge must determine whether the proposed expert will testify to expert knowledge that will assist the trier of fact to understand or determine a fact at issue. This means that a preliminary assessment must be conducted of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.
In the Third Circuit’s interpretation of Daubert, the trial court’s role as a “gatekeeper” requires proof that:
(1) the proffered witness is qualified as an expert;
(2) the expert must testify about matters requiring scientific, technical, or specialized knowledge; and
(3) the expert’s testimony must “fit” the facts of the case.
As to the first requirement—the proffered witness is qualified as an expert—the Third Circuit has been reluctant to impose overly rigorous requirements of expertise and has been satisfied with more general qualifications explaining that Federal Rule of Evidence 702‘s liberal policy of admissibility extends to the substantive as well as the formal qualification of experts. An expert can qualify based on a broad range of knowledge, skills, training, and background.
The second question concerns methodology, which is designed to ensure that an expert’s opinions are based on methods and procedures of science rather than on subjective belief or unsupported speculation. In other words, the expert must have solid grounds for their belief. The factors used to assess the reliability of an expert may include whether:
(1) the theory or technique can be tested;
(2) the theory or technique has been peer reviewed;
(3) there is a high rate of known or potential error;
(4) there are standards or controls;
(5) the theory is “generally accepted”;
(6) there is a sufficient relationship between the technique and methods which have been established to be reliable;
(7) the expert’s qualifications are sufficient; and
(8) the method has been put to non-judicial uses.
Judge Ambrose explained that some courts also consider other factors relevant in determining reliability. These can include:
(i) whether the expert’s proposed testimony "grows naturally and directly" out of research the expert conducted independent of the litigation;
(ii) whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion;
(iii) whether the expert has adequately accounted for alternative explanations;
(iv) whether the expert is being as careful as he would be in his professional work outside of the litigation context; and
(v) whether the field of expertise asserted by the expert is known to reach reliable results for the type of opinion proffered by the expert.
Although this list of factors is lengthy, the judge admitted that not every factor will be relevant to every reliability analysis. The test of reliability is flexible, she wrote. According to the U.S. Supreme Court, Daubert’s list of specific factors “neither necessarily nor exclusively applies to all experts.” The relevance of the factors depends “on the nature of the issue, the expert’s particular expertise, and the subject of his testimony.”
Finally, Daubert and Rule 702 require that the expert’s testimony “fit” the facts of the case. This “fit” requires that the proffered testimony must assist the jury by providing it with relevant information that is necessary to a reasoned decision of the case. With those standards in mind, Judge Ambrose denied most of the Defendants’ motions to exclude expert testimony.