The Court of Appeals for the Fifth Circuit recently held that the trial court abused its discretion by essentially abdicating its gatekeeping responsibilities under Daubert and failing to exclude the report of an expert. In Neasse v. Ford Motor Company ___ F.3d ______ (5th Cir. 2017) 2017 WL 437665 plaintiff was injured and sued Ford on the theory that a design defect in the vehicle’s speed control system prevented the plaintiff from slowing down the vehicle prior to taking his foot off the accelerator. The trial court denied Ford’s motion to exclude plaintiffs’ expert from testifying and the jury awarded a verdict of a little over $3,000,000.00. Ford appealed and the Court of Appeals held that the trial court abused its discretion in permitting the expert to testify. The court reversed and ordered judgment entered for Ford.
The Court of Appeals extensively reviewed a issue of applicability of Daubert, first holding that Daubert did apply, however finding that the expert did not have a “valid scientific connection to the pertinent injury as a pre-condition to admissibility.” The court broke down the opinion of the expert and held that the expert testimony was unreliable and pointed out “. The court further held:
“In ruling on Ford’s motion in limine to exclude Sero’s testimony as unreliable under Daubert, the district court simply dismissed ‘[e]very argument raised by [Ford]’ as ‘go[ing] to the weight, not admissibility, of [Sero’s] testimony.’ J.A. 526. The court did not use Daubert’s guideposts or any other factors to assess the reliability of Sero’s testimony, and the court did not make any reliability findings. Indeed, the district court referred neither to Rule 702 nor to Daubert. We are forced to conclude that the court abandoned its gatekeeping function with respect to Ford’s motion in limine.”
And
“Daubert is a flexible test and no single factor, even testing, is dispositive. But Daubert’s other reliability markers likewise suggest that Sero’s testimony should not have been admitted under Rule 702. Sero has not published or otherwise subjected his theory to peer review. Actually, it would hardly be possible to solicit peer review since Sero conducted no tests and used no “methodology” for reaching his opinions other than merely observing dirt on the speed control assembly components. And, for this same reason, we cannot assess the potential rate of error of Sero’s methodology ? he did not employ a particular methodology to reach his conclusions.”