Insights & Events

Hollingsworth LLP has been leading the fight for strict standards for expert admissibility for thirty years, dating back before the United States Supreme Court’s seminal holding in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).  During this time, the Firm has excluded plaintiffs’ experts and secured defense judgments for our clients in all manner of pharmaceutical, toxic tort, and environmental lawsuits, with leading Daubert opinions in five federal circuit courts of appeals, see Conde v. Velsicol Chem. Corp., Schudel v. Gen. Elec. Co., Glastetter v. Novartis Pharm. Corp., Rider v. Sandoz Pharm. Corp., and Hollander v. Sandoz Pharm. Corp., and with litigation-ending federal district court Daubert opinions rejecting plaintiff claims in the many billions of dollars.  See, e.g., New Mexico v. Gen. Elec. Co., Allgood v. General Motors Corp., Perry v. Novartis Pharm. Corp., and Arias v. DynCorp.  The Firm has also established substantial expertise in attacking plaintiffs’ experts in a variety of other disciplines, including corporate conduct, finance, and physical sciences.  For example, in Avondale v. Norfolk Southern, a case involving property destruction allegedly caused by a massive chlorine gas release, the Firm successfully limited testimony of plaintiff’s corrosion and financial experts.

As plaintiffs’ attorneys continue to try to push back against Daubert, Hollingsworth LLP is leading the fight for Daubert as well in amicus briefing on behalf of leading industry associations, including the U.S. Chamber of Commerce, the National Association of Manufacturers, and PhRMA.  Last month, Hollingsworth LLP filed its third amicus brief in the past two years urging the United States Supreme Court to revisit its Daubert holding to resolve a circuit split and bring back in line a number of federal circuit courts that have drifted away from Daubert’s core principles.  See SQM North America v. City of Pamona; see also Accenture v. Wellogix, and U.S. Steel v. Milward.

Hollingsworth LLP took the fight to its home town of Washington, D.C., representing the U.S. Chamber of Commerce, the National Association of Manufacturers, the National Federation of Independent Business, and the International Association of Defense Counsel in an amici effort urging the District of Columbia Court of Appeals to abandon the antiquated Frye “general acceptance” standard for expert admissibility in favor of Daubert‘s requirement of scientific reliability and relevance.

The issue is before the DCCA on a certified question from a D.C. trial court in a mass tort litigation involving allegations that cell phones can cause brain cancer.  While concluding that plaintiffs’ experts did not have any reliable science to support their general causation opinions, the trial court held that it was compelled under D.C.’s Frye standard to admit some of the plaintiffs’ experts because they had reached their unreliable opinions using generally accepted methodologies.  Noting that the adoption of Daubert would likely result in a different outcome, the trial court granted defendants’ request and certified the question of the proper standard for expert admissibility to the District’s highest court.

In urging the District of Columbia Court of Appeals to grant review, amici explained that the question before the court was not a choice between District of Columbia and federal law but rather a choice between the past and the present.  The federal D.C. Circuit in 1923 could not have anticipated the nature and extent of expert testimony that now defines the modern practice of civil and criminal litigation.  As explained by the 11th Circuit in one of Hollingsworth LLP’s Daubert wins, “[t]he Daubert trilogy, in shifting the focus to the kind of empirically supported, rationally explained reasoning required in science, has greatly improved the quality of evidence upon which juries base their verdicts.”  Rider v. Sandoz Pharm. Corp., 295 F.3d 1194, 1197 (11th Cir. 2002).  Further, abandoning Frye and embracing Daubert would make the judicial task easier, by allowing D.C. judges to tap into a wealth of analysis on virtually any expert admissibility determination from other jurisdictions that apply Daubert.

The amici brief also stressed that D.C.’s continued adherence to Frye is disadvantaging D.C. businesses — and particularly D.C. small businesses — that cannot rely on the courts to screen out scientifically unfounded lawsuits and, accordingly, may see no option but to settle rather than take their chances with a jury, even when there are real doubts about the science involved.