Louisiana Supreme Court Emphasizes that Daubert Only Applies to Methodology, and Not to the Expert’s Conclusions Themselves, Nor Issues of Credibility; in Proving Causation, either a Qualitative or Quantitative Assessment will Suffice

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Defendant, Fon’s Pest Management, spot treated the plaintiffs’ home for termites using a termiticide containing fipronil, an odorless and colorless neurotoxin that has been widely used since 1996. Following the treatments, the plaintiffs allegedly experienced headaches, nausea, dizziness, and confusion, and subsequently filed suit.  In support of their action, the Freemans retained several experts, including two medical toxicologists, a PhD toxicologist, and a certified industrial hygienist.  Following a Daubert hearing, the trial court granted defendants’ motion to strike these experts’ testimony, and the court of appeal affirmed.  The Louisiana Supreme Court, however, reversed:

Daubert, now codified in Louisiana Code of Evidence 702, “primarily concerns the methodology employed by the experts. Based on what has been presented to this court, we find defendants’ motions in limine and the district court’s rulings thereon, was based on objections to the conclusions reached by the experts on causation, rather than objections to the methodology applied by the experts. Plaintiffs presented evidence at the hearing to establish the experts’ methodology and no contradictory evidence was offered by defendants to suggest their methodology was improper to formulate an opinion on causation.

“In granting the defendants’ motions to exclude the experts, the district court focused on the fact that none had written peer-reviewed articles concerning fipronil. However, Daubert imposes no such requirement. Instead, Daubert considers whether the methodology employed by the expert has been subject to peer review or publication. Likewise, Daubert does not require an expert provide a quantitative assessment to prove causation. The lower courts failed to recognize the plaintiffs could meet their burden of proving causation through either a quantitative or a qualitative assessment of fipronil exposure. Indeed, the experts conducted a qualitative assessment of the plaintiffs’ exposure and determined that these exposures caused the plaintiffs injuries.

“Additionally, the district court found it relevant that the experts gave conflicting testimony concerning the means by which the plaintiffs were exposed to fipronil and the effects of their exposure. However, such inconsistency is more properly considered an issue of credibility of the experts and does not address the admissibility of experts’ opinions.”

 

Freeman v. Fon’s Pest Management, 2017-1846 (La. 2/9/2018), 2018 WL 793988.

 

 

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