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9th Circuit Panel Finds Daubert Does Not Limit Expert 'Experience' Testimony.
McKendall Opinion says It only Controls Expert Testimony based on Scientific Knowledge & Methods.

LOS ANGELES-- Expert testimony need not be based on scientific knowledge or methods but may rely on the training and experience of the witness, a 9th U.S. Circuit Court of Appeals panel has ruled in a California products liability case. Circuit Judges Betty Fletcher and Harry Pregerson and Senior U.S. District Judge Leonard Wexler reversed the district court's summary judgment in McKendall v. Crown Control, 95-56657, saying it had inappropriately applied the Supreme Court's 1993 ruling in Daubert v. Merrell Dow Pharmaceuticals Inc.

In Daubert, the high court said that several issues should be considered in determining whether "scientific" testimony would assist a court, including whether the theory or technique can be tested, has been subjected to peer review and has attained general acceptance within the scientific community.

In her Aug. 8 opinion, Judge Fletcher noted that the Daubert court cited Federal Rule of Evidence 702, which allows for scientific testimony by witnesses who are qualified as experts "by knowledge, skill, experience, training or education."

Furniture store employee Donovan McKendall sued Crown Control Corp. after his back and legs were injured by a sofa that slid from the cargo area of one of the company's forklifts onto the platform where he was operating machinery. L.A. sole practitioner Norman Warren Alschuler argued that the equipment was flawed by its lack of a protective barrier and sought to present testimony by an experienced mechanical and metallurgical engineer. The witness, Martin Siegel, had worked in product design, development and safety for about 50 years; was a professor of mechanical engineering; and had investigated hundreds of forklift cases. He had also testified often on machinery safety.

The district court, however, sided with Crown and its attorney, Eric A. Amador, of Bronson, Bronson & McKinnon, excluding the testimony and granting summary judgment for Crown. The court cited Daubert and Rule 702, saying the proposed expert testimony consisted of unsubstantiated conclusions rather than scientific principles, because Mr. McKendall had failed to show that a protective barrier would have ensured his safety. Once Mr. Siegel's testimony was excluded, McKendall had no expert support for his case.

The panel noted that the court has "broad discretionary powers" to determine whether a proposed expert is qualified and must decide if the proposed opinion concerns "scientific, technical or other specialized knowledge." Daubert applies only to testimony based on scientific knowledge and methods and does not preclude testimony based on experience, education and other qualifications, it said.

Last year the 10th Circuit interpreted Daubert in a similar fashion when it upheld a district court's admission of testimony by a mechanical engineer in a products liability case, Compton v. Subaru of America Inc. Like Mr. Siegel, that witness did not provide a model or test his proposed design but offered expertise the court deemed helpful and relevant.

Some previous 9th Circuit decisions appear to contradict the McKendall ruling as to whether Daubert applies to all expert testimony or only to scientific knowledge, Judge Fletcher said. But Daubert viewed in a broad context gives "strong advice to district courts: in ruling admissibility, trial judges are the gatekeepers and should pay particular attention to the reliability of the expert and his or her testimony," she wrote.

* The above material was excerpted, modified or otherwise prepared by the 'Lectric Law Library from a pg A06 story by B.J. Palermo in the 9/15/97 National Law Journal.   NY Law Publishing Co., '97.   The original was found at LJXtra's website at www.ljx.com

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