After reviewing the Tenth Circuit’s recent pronouncement on Daubert challenges and the admissibility of expert testimony at trial, I reexamined pertinent documents in this matter. . . . I find that the Hoffman opinion may impact previous expert witness rulings including, but not limited to, Dr. David Egilman’s opinions.
Order at 1-2. Thus, the court’s going to take another look in Watson, and hopefully this time get it right.
- The Court notes that Dr. Egilman does not cite to any support for many of his statements. [describing several statements] Each of these preceding statements are important foundational assumptions on which Dr. Egilman relies for the remainder of his analysis. However, without citation to any source, the Court must conclude that those foundational statements are not based on sufficient facts or data. Id. at 1016-17.
- Dr. Egilman’s testimony and reports contain many other examples of conclusions and opinions that he fails to document. . . . In addition to not being supported by sufficient facts or data, Dr. Egilman’s unsupported statements would not assist the fact finder in deciding the material questions in this case and may be misleading or confusing. Id. at 1018.
- Dr. Egilman relies on existing data, mostly in the form of published studies, but draws conclusions far beyond what the study authors concluded, or Dr. Egilman manipulates the data from those studies to reach misleading conclusions of his own. Id.
- Dr. Egilman’s underlying methodology for his conclusions regarding [another expert’s] work is not reliable because he provides no basis to extrapolate from [the other expert’s] letter regarding a single patient. . . . Therefore, Dr. Egilman had no identifiable data on which to base his conclusions, and the Court has no means to analyze whether the underlying data is reliable. Id. at 1019.
- Dr. Egilman relies on the findings of [other experts] despite their own reflections that the methodology underlying their work . . . could not support extrapolating to general causation for a broader group of consumers. Id. at 1020.
- Dr. Egilman’s opinions fall below the threshold standard of scientific validity in other ways. . . . Coming to a conclusion first and then doing research to support it is the antithesis of this method. . . . Dr. Egilman’s conclusions . . . preceded his actual estimation of the levels of diacetyl to which [plaintiff]was exposed. Id. at 1021.
- Dr. Egilman also fails to apply reliable scientific methods when he extrapolates from extremely small samplings to make sweeping conclusions. Id. at 1022.
- Dr. Egilman cites no other authority for the analytical step he takes from observing that there is no accepted “safe” level of diacetyl exposure. Id. at 1024.
- Dr. Egilman offers no analytical bridge between the animal studies finding harm from diacetyl exposure to rats and his conclusion that those studies demonstrate that diacetyl exposure causes decreased lung function and [other injuries] in humans. He offers no explanation for how and why the results of those studies can be extrapolated to humans. Id. at 1025-26.
- Dr. Egilman’s characterization of the study as an exposure study when, by its own terms, it is not, indicates that Dr. Egilman did not reliably apply the methodology of that study to the facts of this case. Id. at 1026.
- Dr. Egilman also includes legal conclusions throughout his expert report and affidavits. Yet Dr. Egilman has not presented any credentials to support his qualifications as a legal expert. . . . Dr. Egilman fills his expert report with “opinions” that are actually legal conclusions. Id.
- [O]ne illustration of lack of reliable methodology is when the expert has arrived at contradictory conclusions using the same methodology. In his [date] affidavits, Dr. Egilman discounts some of the very studies he relied upon in his [date] report. Id. at 1027.
- Dr. Egilman provides no basis for his confidence in making a conclusion that the authors explicitly stated was premature without additional data. Id.
- The bulk of Dr. Egilman’s conclusions do not rise above “subjective belief or unsupported speculation.” Id. at 1029.
Dr. Egilman did not sufficiently justify his foundational assumption or refute the contrary record evidence. Moreover, as the district court observed, there were problems with Dr. Egilman’s . . . estimates of [plaintiff’s] exposure levels. In light of these concerns, we hold that the district court did not abuse its discretion in concluding that the “analytical gap between the existing data and the opinion Dr. Egilman proffers” was too large.Because Dr. Egilman could not establish that diacetyl in microwave popcorn vapors was generally capable of causing [the lung disease in question], he could not rely on a differential diagnosis to establish that exposure to microwave popcorn had caused [plaintiff’s] medical problems. We therefore affirm the exclusion of all of Dr. Egilman’s testimony.
Newkirk v. ConAgra Foods Inc., 438 Fed.Appx. 607, 609 (9th Cir. 2011).
Appellant’s participation in the district court consisted of filing reports in his capacity as an expert. His participation was not akin to party participation. He did not file papers objecting to the order excluding his testimony. He did not argue the legal merits of the motion to exclude his testimony. . . . We conclude that Egilman does not have standing to appeal the district court’s order, that we lack jurisdiction, and that this appeal should be dismissed.
Egilman, slip op. at 1-2. We confess, we’ve never had it happen to us, but if an expert ever decides to appeal his own exclusion, separately from the party retaining him/her, we now have some precedent that it can’t be done.