D.C. Court of Appeals Signaled Directions on Expert Testimony

Martin Schubert, Esquire
April 24th, 2015
By: Martin Schubert, Esquire

D.C. Court of Appeals: 1) pulls back on the free pass for late Rule 26(b)(4) expert designations and supplements, and 2) affirms striking of expert and granting of summary judgment where expert medical testimony was based neither on relevant testing nor peer reviewed literature.

In the recent personal injury case of Russell v. Call/D, LLC, the District of Columbia Court of Appeals signaled two important directions in which expert issues are heading in the District of Columbia. First, the Court signaled its reluctance to allowing late supplemental designations of experts. Second, the Court signaled, or perhaps reminded, that expert testimony must have a sufficient foundation, and testimony based on “because I believe it is so” will not be admissible. The Court did not address either issue by promulgating a new test or rule, but simply showed where the outer lines may be as to each issue.

In Russell, the Plaintiff filed a personal injury lawsuit over the purported contracting of Legionnaire’s disease. The claim was that backed-up sewerage in the basement of an apartment building caused the injury. Prior to having symptoms, the Plaintiff also went to a ski resort and several different work locations. As originally designated, the Plaintiff’s expert was going to testify that his opinions were that the Plaintiff contracted the disease by breathing fumes in his apartment building. The expert did not rely on any peer reviewed literature in reaching his conclusions, instead assumed that Plaintiff had come in contact with the sewage. The defense moved to exclude the expert testimony on the basis of being speculative. The trial court sustained the motion in limine as to the Plaintiff’s expert and subsequently granted the motion for summary judgment by the defense.

The first issue on appeal was the propriety of the trial court’s refusal to allow an amendment of the Plaintiff’s original expert designation. After the initial designation, the deposition of the Plaintiff’s expert, and a hearing in front of the trial court regarding the basis of the purported expert testimony, the Plaintiff filed an amended designation. The trial court ignored this supplementation in ruling on the motion in limine and the Court of Appeals affirmed this decision by the trial judge. It reasoned that Plaintiff was aware of the questioning by the defense at the April deposition, was made aware of the Defendant’s position by the May motion in limine, and the May motion for summary judgment, yet Plaintiff waited until September and after the motion in limine hearing to amend. However, the Court of Appeals not only focused on the timing of the supplement, but also the substance of the supplement. The Court found the substance insufficient to change the outcome. As such, the strength of a future argument based on timing is weakened by the fact that the amendment was essentially futile.
One lesson of the case is that the sufficiency of expert testimony should be challenged as early and as often as possible. The length of time that the Plaintiff is on notice of the deficiency appears highly important to the Court of Appeals and goes a long way to showing prejudice to the defense in allowing amendments. If nothing else, the defense should at least put a plaintiff on written notice via a letter, to establish a record at a later stage of the proceedings.

The second issue on appeal was the propriety of the trial court in excluding the expert testimony entirely. The Plaintiff argued that the training and experience of the expert was sufficient to allow him to testify. The trial court found the basis of the opinion deficient because: the expert had no training in the source of the disease at issue, was not aware of bacteria in sewerage, identified no literature relied upon, had never determined anyone’s source of the subject disease, had no knowledge of the presence of the proper bacteria in the subject apartment, and so on. There were too many assumptions and speculation in the opinion.

The Court of Appeals summarized its prior standard for expert testimony, namely that the expert must have sufficient skill, knowledge, or experience to make it appear that his opinion will aid the jury. The opinion must have a reliable basis in fact or data. The Court of Appeals agreed that the expert testimony lacked a reliable basis because for the reasons stated by the trial court and he did not utilize a scientific method to conclude that Legionella bacteria were present in the Fitch Street apartment building,” which required him to use “―[t]he process of generating hypotheses and testing them through experimentation, publication, and replication.”‖ The Court of Appeals held something more is required from the expert than speculation. “[T]o offer an opinion to a reasonable degree of medical certainty, [the expert] needed . . . an objectively well founded conviction that the likelihood of one cause . . . was greater than any other.”

Nothing in the opinion identifies the adoption of a new standard, e.g. Doubert-Kumho, but it continues to draw and refine the boundary of the current requirements for expert testimony, and to signal that it will allow the trial court judge’s to be gate keepers against insufficiently supported expert testimony.


This blog and the information provided has been prepared by Bancroft, McGavin, Horvath & Judkins, P.C. (“BMHJ”) for information purposes only and is not intended nor to be construed as legal advice. This blog may contain the opinions of the members and associates of this firm on various legal issues and is not legal advice. Read More