Lessons From Fire Investigation: “Negative Corpus,” Staying True to Scientific Method, and the Daubert Practitioner

March 10, 2014

By John D. Sear

New reading material from the National Fire Protection Association (NFPA) awaits me: the 2014 edition of NFPA 921: GUIDE FOR FIRE AND EXPLOSION INVESTIGATIONS.  This latest edition promises to strengthen the connection between fire cause and origin investigation and Daubert.

If previous updates to NFPA 921 are a guide, there will almost certainly be ammunition in there for Daubert practitioners working with experts opining about fire causation. In the last update to NFPA 921, in 2011, there was a fundamental change in NFPA guidance which had a profound impact on assessing the reliability of fire causation experts.

That guidance was rooted [Read More]

Scope of Daubert Review At Class Certification Stage Still in Flux

May 22, 2013

By Thomas P. Branigan, Bowman and Brooke, LLP

Whether a district court must apply a full “Daubert” review of expert testimony or opinions offered at the class certification stage continues to be a point of question and debate in the wake of Wal-Mart Stores Inc. v. Dukes et al., 131 S.Ct. 2541 (2011). In Dukes, The court suggested in dicta that Daubert likely applies to expert evidence used in the class-cert. process. “The District Court concluded that Daubert did not apply to expert testimony at the certification stage of class-action proceedings. We doubt that is so … ” [emphasis added]. But the scope of Daubert [Read More]

Cracks Appearing in California’s General Acceptance Test?

November 27, 2012

Yesterday the California Supreme Court  chipped away at its version of the general acceptance test for admissibility of expert testimony in deciding Sargon Enters., Inc. v. Univ. of S. Cal., 2012 WL 5897314 (Cal. Nov. 26, 2012).  

Time and time again, the California Supreme Court has emphasized that it is not adopting the Daubert test, all the while quoting, citing, and relying upon Daubert precedent in defining the contours of California’s test.  In my view, the court ought to simply scrap the general acceptance test outright and embrace the Daubert principles it has relied upon for [Read More]


October 18, 2012

Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit is known for his intellect, legal and economics scholarship, and often biting wit.  After all, who can forget his opinion in Gonzalez-Servin v. Ford Motor Co., 662 F.3d 931 (7th Cir. 2011), in which he wrote:


The ostrich is a noble animal, but not a proper model for an appellate advocate. (Not that ostriches really bury their heads in the sand when threatened; don’t be fooled by the picture below.) The “ostrich-like tactic of pretending that potentially [Read More]

“If At First You Don’t Succeed . . .”

“If at first you don’t succeed, try try again.” While this maxim may lead to success on the playground, the Seventh Circuit recently reminded litigants that it typically won’t lead to success in the courtroom. See Bielskis v. Louisville Ladder, Inc., 663 F.3d 887 (7th Cir. 2011).  


Plaintiff Bielskis was injured when the scaffolding he was working on collapsed. He brought suit against Louisville Ladder for design and manufacturing defects, among other claims.  Bielskis’s expert concluded that the scaffolding collapsed because of a brittle fracture to a roller [Read More]

Extrapolation from Animal Studies Gaining Greater Acceptance?

            Litigants have long been on notice that the testimony of scientific experts which relies too heavily on animal testing is excludable.  The most well-known example of this is General Elec. Co. v. Joiner, 522 U.S. 136 (1997). In Joiner, the Supreme Court held it was not an abuse of discretion for the trial court to exclude expert testimony which relied in part on animal testing. The infant mice in the study had been given “massive doses of PCB’s” which were injected directly into their stomachs, whereas Joiner was an adult human being whose alleged PCB contact was at a much [Read More]

New Study Examines Daubert Challenges to Financial Experts

July 25, 2012

PriceWaterhouse Coppers (PwC) recently released a new study, which takes an in-depth look at Daubert challenges to financial experts. The report analyzes post-Kumho Tire challenges to financial expert witnesses under the Daubert standard. The study identifies a number of observable trends in the frequency and outcome of these challenges based on federal and state court opinions issued over the past 11 years.

“Daubert Challenges to Financial Experts: An 11-year study of trends and outcomes” highlights nine main trends over the past 11 years.

1.    Although the number of Daubert challenges to [Read More]

Join me for “Daubert Comes to Wisconsin”

December 1, 2011

Please join me on Wednesday, January 12, in Waukesha, Wisconsin, for “Daubert Comes to Wisconsin,” a one-day seminar presented by Wisconsin Civil Justice Council, Inc. I will be speaking alongside a distinguished group of practitioners and the Honorable Rudolph Randa, Judge of the U.S. District Court for the Eastern District of Wisconsin. See the brochure here and the agenda here. It should be a very interesting—and informative—day.

In the District of Minnesota, Independent Claims Must Stand … Independently

November 23, 2011

Kapps v. Biosense Webster, Inc., et al., No. 09-cv-1039 PJS JSM (D. Minn. Sept. 27, 2011) involves a medical device, manufactured and sold by Biosense, cleared for “single use only,” but routinely “remanufactured” for reuse by an unrelated company through a process cleared by FDA on a “substantially equivalent” basis. Sidestepping for the moment several rich questions of regulatory compliance and “product identification,” a couple of discrete components of D. Minn.’s September 27th Order deserve special highlight: the exclusion of an expert opinion and the facile dismantling of plaintiff’s attempt to dress up an FDCA violation as negligence per se.

Facts. After the cardiac [Read More]

Third Edition of Scientific Evidence Manual is Here!

October 11, 2011


The Federal Judicial Center has published the third edition of its Reference Manual on Scientific Evidence, with an introduction by Supreme Court Justice Stephen Breyer and several new reference guides, including guides on forensic identification, mental health, and neuroscience.  The Manual is an indispensable tool for practitioners to use in attacking or defending the admissibility of expert testimony in a variety of disciplines.  A full copy of the Manual (along with the first and second editions) can be found here.