I know Louisiana is outside the norm. Our State Supreme Court wants the courts to limit their review to the methodology used. They believe any expert that uses a methodology that the court will accept based on the Daubert opinion should be allowed to present their findings to the trier of fact. Not saying this is good but it seems to be the first to limit what area the judge can rule on as to the challenge.

In our case the court is not determining if the scientific evidence should be admitted but only was the methodology used to develop this evidence acceptable. The judge is still allowed to use rule 702 to determine if the expert is qualified.

In the Louisiana first the district court and then the court of appeals agreed to not allow the testimony of the experts. This was not a fire case but did address expert testimony. The district court granted the defendant’s motions in limine, striking plaintiff’s experts because it found: 1) none of the proposed experts had expertise regarding fipronil; 2) none of the four experts had written or contributed to any peer-reviewed articles regarding the effects of fipronil (or any pesticides) in humans; 3) none of the four experts attempted a dose reconstruction to determine the amount of exposure to fipronil allegedly suffered by the plaintiffs; 4) none of the experts reviewed any biological or air quality data to establish the plaintiffs were exposed to fipronil; and 5) no articles or studies reviewed by the experts proved any causal connection between fipronil and the plaintiff’s claimed injuries. In addition, the testimony of all four experts conflicted on the effects of fipronil exposure.

The State Supreme Court stated, Daubert does not require an expert to provide a “quantitative assessment to prove causation,” and the lower court “failed to recognize the plaintiffs could meet their burden of proving causation through either a quantitative or a qualitative assessment of fipronil exposure.” In this case, the experts performed a qualitative assessment and determined that exposure to fipronil caused the plaintiffs injuries. Finally, the Court held that any conflicts among the experts’ testimony should be considered as a credibility determination, which did not affect whether the experts’ opinions were admissible or not. The court stated, a party’s expert can use either a qualitative or quantitative methodology to meet the burden of proving causation, as both are acceptable under Daubert.

Would you consider the methodology outlined in NFPA 921 is a qualitative methodology?

Jim Mazerat
Forensic Investigations Group