On January 31, 2017, President Trump nominated Judge Neil Gorsuch to the U.S. Supreme Court. Although time will tell, this post assumes he will make it through the Senate confirmation process, and take his place at 1 First Street, Northeast. Currently, Judge Gorsuch sits on the United States Court of Appeals for the Tenth Circuit, having been appointed to same by President George W. Bush on July 20, 2006.  While at the Tenth, Judge Gorsuch issued two interesting decisions which may prove instructive as to how he views the Court’s role as the evidentiary gatekeeper[1] of expert testimony. A discussion of those two cases, and what they foretell with regard to “all exposures contribute” testimony follows.

Graves v. Mazda Motor Corp., 2010 WL 5094286.

This case arises out of Mrs. Graves’ trip to Hattiesburg, Mississippi. Upon arriving at the Hattiesburg airport, she picked up her rental car—a Mazda 6 with an automatic transmission. At the end of her stay and while en route to the airport to depart for home, Mrs. Graves got lost and pulled over to ask for directions. When exiting the car, Mrs. Graves left the engine running but thought she had placed the car’s shifter in “park.” As it turns out, the gear shifter was in “reverse” and, when she stepped out, the car rolled backwards, knocked her to the ground, and ran her over. Mrs. Graves sought damages from Mazda for the injuries she suffered, alleging that the company’s gear shifter was defectively designed. In support of her claim, she offered expert testimony from an expert human factors engineer. The district court, however, excluded the expert’s testimony as unreliable and then, given the absence of any other probative evidence of liability, granted Mazda’s summary judgment motion. On appeal, the plaintiff sought to undo the district court’s decision.

The district court noted that the expert failed to provide any data or industry standard, or to conduct any testing to confirm his view that Mazda’s gear shift design was defective. Instead, the expert’s proffered testimony that merely described how the Mazda shifter works, and from this, his leap to the conclusion that Mazda’s design fails to allow for “smooth” shifting and so is defective and unreasonably dangerous.

Judge Gorsuch, writing for the three judge panel (Kelly, J., Ebel, J.) noted that without any reference to data suggesting how “smoothly” an ordinary consumer would expect a gear shift to move, without any confirming evidence indicating how Mazda’s design might cause shifting troubles for ordinary drivers, without any reference to how engineering standards might have counseled against Mazda’s gear shift design, and without any other evidence suggesting its reliability, the district court was right to exclude the expert’s testimony. Judge Gorsuch noted that the expert did provide a list of “safety systems analysis” techniques that, he contended, Mazda should have used in assessing its design, but even here, the expert failed to offer any evidence suggesting that Mazda actually failed to use these techniques, or if it
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celldriveOn December 23, 2016 in Santa Clara, California, in Modisette v. Apple, Inc., 16CV304364, the family of a five-year-old girl killed in a car crash on Christmas Eve 2014 filed a lawsuit against Apple alleging that Apple’s FaceTime application distracted a driver and caused the death of Moriah Modisette.  Like the majority of distracted driver accidents, this one could have been prevented. On the one hand, the driver could have waited until he stopped driving before using the FaceTime application. On the other hand, Apple could have designed a lock-out feature or warned FaceTime users of the dangers of driving while FaceTiming.

In Modisette v. Apple, Inc., the court must decide whether a smartphone manufacturer like Apple has a duty to protect the public and FaceTime users by preventing the use of the application while driving. FaceTime is a factory-installed video communication service similar to Skype and Google Hangouts that allows Apple device users to conduct one-on-one video calls. Ultimately, this case raises an important question: Should a smartphone manufacturer be liable for injuries caused by distracted drivers using a phone application, and if so, are distracted drivers a superseding intervening cause?

Plaintiffs allege that Apple’s iPhone was defective because Apple failed to install and implement the safer alternative design for which it sought a patent in December 2008, which was later issued in April 2014. The alternative design would “lock out” a driver’s ability to FaceTime while driving. In addition, Plaintiffs allege that Apple failed to warn drivers that FaceTiming while driving was likely to be dangerous.  Plaintiffs further allege that the conduct of the driver is “inextricably intertwined” with Apple’s failure to implement the patented lock out feature, and as a result, Apple allegedly failed to exercise reasonable care.

This is not the first time Apple has been involved in a products liability lawsuit arising out of an accident caused by a distracted driver. In 2015, in Meador v. Apple, Inc. (2016) WL 4425527 (E.D.Tex.), Apple was sued for a 2013 crash involving a driver distracted by checking her text messages. The question raised in Meador is similar to the Modisette’s case: Does a smartphone manufacturer have a duty to prevent drivers from using the device while driving? On August 16, 2016, in a pretrial report and recommendation, United States Magistrate Judge K. Nicole Mitchell recommended that the case be dismissed with prejudice because a “real risk of injury did not materialize until [the driver] neglected her duty to safely operate her vehicle by diverting her attention to the roadway.” Meador v. Apple, Inc. (E.D. Tex., Aug. 16, 2016) WL 7665863, at 4. Thus, Judge Mitchell opined that Apple’s failure to lock out the driver did “nothing more than create the condition that made Plaintiffs’ injuries possible.” Id. As a result of Judge Mitchell’s recommendation, the Meador case has been stayed pending an order from the District Judge on Apple’s Motion to Dismiss.

In a similar case involving text messages against a network provider in
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How one small San Francisco case may cause significant change for the Internet and its users

2016_07_27-yelp-law-suit_homepage-3-22527971222Ever rely on a negative review on Yelp? Ever write a negative review on Yelp?  Well, one small dispute in San Francisco has set precedent in place that such a review can be found defamatory and ordered removed by not only the reviewer but Yelp itself – even when Yelp was not a party to the action. The decision, which was recently upheld up by the California Court of Appeal (Hassell v. Bird (2016) 247 Cal.App.4th 1336), is currently being reviewed by the California Supreme Court. An opinion is expected next year; however, the decision is a departure from the common understanding that user generated content is not only unequivocally protected by the First Amendment but that the online publisher is immune from any liability for such content under Section 230 of the Communications Decency Act.

This decision is intriguing on its face because apparently a business has recourse and potential legal support to seek certain comments be removed from online sites like Yelp (or Google, or Facebook, or Trip Advisor etc.) but what is also of import to the likely reader of this blog are the underlying facts, which involved review of an attorney’s handling of a personal injury case. Yes, you can post a review of your lawyer on Yelp.

San Francisco attorney Dawn Hassell’s firm represented Ava Bird for 25 days in a simple personal injury case in 2012. Hassell withdrew as counsel because her firm had difficulty communicating with Bird and Bird expressed dissatisfaction with Hassell’s firm. Hassell produced evidence of dozens of direct communications with Bird, at least one in-person meeting, and efforts made to resolve Bird’s claim with the insurance company involved. At the time Hassell withdrew, Bird had 21 months to file her claim before the statute of limitations expired. A few months later, on January 28, 2013, Bird posted a “one-star” (the lowest rating) review on Yelp.com about her experience with Hassell. Thereafter, Hassell sent Bird an e-mail (after telephone calls were apparently not returned) requesting she remove “the factual inaccuracies and defamatory remarks” from Bird’s review to which Bird refused.

Hassell then filed suit in February 2013 allegedly after seeking Yelp’s assistance and after she was advised by counsel for Yelp that the only recourse was legal action against the actual reviewer, Bird. Of course that recollection is disputed by Yelp. After filing suit, Bird posted yet another review (to which Hassell responded to on Yelp). It is also alleged by Hassell that Bird then posted at least one other review under another pseudonym.

Hassell prevailed because Bird never showed up in any of the proceedings and thus, a default was entered against her. At the default prove-up hearing Hassell was sworn and testified. Bird again did not appear. The Court found the reviews defamatory and awarded approximately $555,000 in damages and costs as well as an injunction ordering Bird to remove her posts
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district court
Washington, D.C. District Court of Appeals

The District of Columbia Court of Appeals recently adopted the standards found in Federal Rule of Evidence 702 (“Rule 702”), regarding the admissibility of testimony by expert witnesses, thereby replacing the Frye (“Frye”) test.  See Motorola Inc., et al. v. Michael Patrick Murray, et al., 2016 WL 6134870 (October 20, 2016)(“Motorola”). Washington D.C. is now the most recent jurisdiction to adopt Rule 702, a trend that has continued since Rule 702 was amended in 2000 to reflect United States Supreme Court decisions pertaining to expert witness testimony, such as Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999); and General Electric v. Joiner, 522 U.S. 136 (1997).

Rule 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

  1. the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
  2. the testimony is based on sufficient facts or data;
  3. the testimony is the product of reliable principles and methods; and
  4. the expert has reliably applied the principles and methods to the facts of the case.

In Motorola Plaintiffs in thirteen cases sued numerous cell phone manufacturers, service providers, and trade associations, alleging that long-term exposure to cell-phone radiation caused their brain tumors. The trial Judge Frederick H. Weisberg, held four weeks of evidentiary hearings on the admissibility of the expert testimony offered by the plaintiffs. He concluded that, based on the record before him, some, but not all, of Plaintiffs’ proffered expert testimony on general causation was admissible under the Frye evidentiary standard, but “most, if not all, of Plaintiffs’ experts would probably be excluded under the Rule 702/Daubert standard.” Judge Weisberg then certified the following question of law to the Circuit Court: “whether the District of Columbia should adopt Federal Rule of Evidence 702 (or a revised Frye standard) for the admissibility of expert evidence.”

In certifying the question, Judge Weisberg noted,

[A]t the risk of over-simplification[,] if a reliable, but not yet generally accepted, methodology produces ‘good science,’ Daubert will let it in, and if an accepted methodology produces ‘bad science,’ Daubert will keep it out; conversely, under Frye, as applied in this jurisdiction, even if a new methodology produces ‘good science,’ it will usually be excluded, but if an accepted methodology produces ‘bad science,’ it is likely to be admitted.

The District of Columbia Court of Appeals, en banc., heard the question, Plaintiffs’ appeal, and adopted the Rule 702 standards unanimously, with Judge Easterly providing a concurring opinion.

Associate Judge Fisher, writing for the Court, stated, “the ability to focus on the reliability of principles and methods, and their application, is a decided advantage that will lead to better decision-making by juries and trial judges
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