Last week the Mississippi Supreme Court issued its newest Daubert opinion in a 7–2 decision in Hill v. Mills. Justice Dickinson wrote for the majority. Justice Chandler wrote a dissent joined by Justice Graves.

The case originated in the Lincoln County Circuit Court with Judge David Strong as the trial judge. Judge Strong is a popular judge, despite his sad allegiance to Ole Miss athletics—a school that he did not attend until law school when he graduated from the famed Class of 1993.

The case was a medical malpractice case following a miscarriage that plaintiffs claimed could have been prevented by the defendant doctor. Plaintiff’s expert witness could not support his opinions with medical literature. In contrast, the defendant offered literature that supported his expert’s opinions.

 The trial court concluded that this made the opinions of plaintiff’s expert unreliable and excluded the expert’s opinions. Since expert testimony was required in the case, the trial court also granted summary judgment.

The Mississippi Supreme Court basically affirmed the trial court. The Court reversed on the grant of summary judgment for plaintiff’s claims that were unrelated to the wrongful death. But that claim was not the focus of the case and the Court’s decision was a big defense win.

The opinion’s key holding was:

We think the better practice is, when an expert (no matter how qualified) renders and opinion that is attacked as not accepted within the scientific community, the party offering that expert’s opinion must, at a minimum, present the trial judge with some evidence indicating that the offered opinion has some degree of acceptance and support within the scientific community.

The Court clarified that this does not mean that there is a requirement that an expert’s opinion be supported by peer-reviewed articles.  

I do not take issue with the decision that the expert in the case should not have been allowed to testify. But I do question whether the Court is following Daubert and its progeny in reaching its decisions and in the scope of its rulings. My criticism is similar to my criticism of the Court’s opinion in Vaughn v. Mississippi Baptist Medical Center that I wrote about here.  

The United States Supreme Court discouraged attempts to apply definitive rules to Daubert issues in Kumho Tire Co. v. Carmichael. In that landmark Daubert case the Court stated the following: 

  • We also conclude that a trial court may consider one or more of the more specific factors that Daubert mentioned when doing so will help determine that testimony’s reliability. But, as the Court stated in Daubert, the test of reliability is "flexible," and Daubert’s list of specific factors neither necessarily nor exclusively applies to all experts or in every case.  Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination. See General Electric Co. v. Joiner, 522 U.S. 136, 143, 139 L. Ed. 2d 508, 118 S. Ct. 512 (1997) (courts of  appeals are to apply "abuse of discretion" standard when reviewing district court’s reliability determination). Applying these standards, we determine that the District Court’s decision in this case — not to admit certain expert testimony — was within its discretion and therefore lawful.
  • Our emphasis on the word "may" thus reflects Daubert’s description of the Rule 702 inquiry as "a flexible one." 509 U.S. at 594. Daubert makes clear that the factors it mentions do not constitute a "definitive checklist or test." 509 U.S. at 593. And Daubert adds that the gatekeeping inquiry must be "’tied to the facts’" of a particular "case." 509 U.S. at 591 (quoting United States v. Downing, 753 F.2d 1224, 1242 (CA3 1985)). We agree with the Solicitor General that "the factors identified in Daubert may or may not be pertinent in assessing reliability, depending  on the nature of the issue, the expert’s particular expertise, and the subject of his testimony." Brief for United States as Amicus Curiae 19. The conclusion, in our view, is that we can neither rule out, nor rule in, for all cases and for all time the applicability of the factors mentioned in Daubert, nor can we now do so for subsets of cases categorized by category of expert or by kind of evidence. Too much depends upon the particular circumstances of the particular case at issue. [emphasis added].
  • Daubert itself is not to the contrary. It made clear that its list of factors was meant to be helpful, not definitive. Indeed, those factors do not all necessarily apply even in every instance in which the reliability of scientific testimony is challenged. It might not be surprising in a particular case, for example, that a claim made by a scientific witness has never been the subject of peer review, for the particular application at issue may never previously have interested any scientist. Nor, on the other hand, does the presence of Daubert’s general acceptance factor help show that an expert’s testimony is reliable where the discipline itself lacks reliability, as, for example, do theories grounded in any so-called generally accepted principles of astrology or necromancy.
  • We do not believe that Rule 702 creates a schematism that segregates expertise by type while mapping certain kinds of questions to certain kinds of experts. Life and the legal cases that it generates are too complex to warrant so definitive a match. [emphasis added].
  •  Rather, we conclude that the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable. That is to say, a trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony.
  • Our opinion in Joiner makes clear that a court of appeals is to apply an abuse-of-discretion standard when it "reviews a trial court’s decision to admit or exclude expert testimony."

In Kumho Tire the Court ruled that the district court did not abuse its discretion by excluding the expert’s opinions in the case. In doing so, it refused to adopt definitive rules to apply to specific types of experts and cases. Daubert and Kumho Tire speak in terms of the trial court’s flexibility in determining whether experts should be allowed to testify.

The Mississippi Supreme Court is not properly emphasizing this flexibility in its opinions and is instead adopting the types of definitive rules that Kumho Tire frowned upon.

In Vaughn, the Court took a Daubert case and made a hard-and-fast rule that nurses cannot testify as to medical causation. In Hill v. Mills, the Court created another definitive rule requiring evidence to respond to a challenge to an expert’s opinions in all cases where a challenge is made, regardless of the circumstances. With all due respect for the Court, adopting definitive rules rather than limiting its ruling to a determination of whether the trial court abused its discretion in making a Daubert ruling is inconsistent with Kumho Tire.

Will Bardwell seemed to come to a similar conclusion in his blog:

Regardless of whether you think the Mississippi Supreme Court’s treatment of Miss. Rule of Evidence 702 in Thursday’s Hill v. Mills decision was correct, one can’t help but conclude that it places a big, big land mine in front of trial litigants.

This is a case with bad facts, but fundamentally, my problem with the decision is that it wades (if not swims neck-deep) into the merits of the expert’s opinion. Clearly he was inadequately prepared for the oncoming attack toward his conclusion. But if, as Justice Chandler argues in dissent, an expert is adequately qualified and offers an opinion based on the experience warranting that qualification, then the question of whether he’s a quack is a question that should be left to the jury.

More fundamentally, though, the case seems to introduce what Justice Chandler calls a "burden-shifting scheme upon Daubert’s reliability prong." And that’s the biggest problem with this ruling. As a matter of law, Rule 702 doesn’t (or, at least, it didn’t) impose on courts the duty to weigh conflicting testimony and to decide whether one witness’ testimony invalidates another’s. That’s a basic jury duty.

My problem with the opinion is that the Court appears to emphasize the result more than how the trial court reached its decision.

In Vaughn, the Court could have struck the expert without creating a rule that nurses can never testify about medical causation. In Hill, the Court could have found that the trial court did not abuse its discretion in striking the expert’s opinions under the facts and circumstances of the case, without creating a rule that requires in all circumstances the expert to have evidentiary support of his opinions.

But the Court went beyond that and issued definitive rules to apply to Daubert issues. This appears contrary to the rulings of the U.S. Supreme Court, which ruled that Daubert does not lend itself to definitive rules.

Daubert determinations are fact specific and case specific. The trial court should have flexibility and considerable leeway in making Daubert determinations. Courts of appeals should then review the trial court’s findings under an abuse of discretion standard. Appellate courts should not take each new Daubert case as an opportunity to create another definitive rule to apply to a growing list of definitive Daubert rules.

But that is not the approach that the Mississippi Supreme Court appears to be taking.