Defending a Daubert Challenge Against Defense Experts

Suppose you have hired an expert on hiring practices and your opponent wants to have him excluded under a Daubert challenge? How can you fight the challenge?
A few years ago, we were defending trucking industry sales policies and procedures regarding the use of alcohol and the operation of company vehicles. We retained an expert on the hiring  and supervising issues particular to the industry (particularly since the plaintiff was arguing that both the industry standards and company standards were being violated).
Our expert was retained to  help the jury to understand trucking industry standard practices and procedures regarding the operations of sales representatives and use of company vehicles. In light of the plaintiffs’ allegations that the trucking company’s hiring practices were substandard, our expert’s extensive history in the specialized realm of trucking hiring practices would assist the jury to understand the appropriate standard of care.

1. The Daubert standard is flexible according to the nature of the expert.
Expert opinion testimony is permissible if “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” La. Code Evid. art. 702. An expert is one who, usually by education or experience, has a unique knowledge of the subject matter at issue and he or she is permitted to express personal opinions. Barrett v. T.L. James & Co., 28,170-CA at p. 12, (La.App. 2 Cir. 4/3/96), 671 So.2d 1186, 1194.

The trial court is vested with broad, albeit not unfettered, discretion in determining whether a witness qualifies to testify as an expert in his field. Id. To determine whether a witness is an expert, the court is guided by two primary concerns: whether the witness plans to testify to actual technical knowledge and whether such knowledge will assist the trier of fact in understanding or determining a fact in issue. Id.

The admission of expert testimony is proper when the following three factors are established:
(1) the expert is qualified to testify competently regarding the matters he intends to address,
(2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and
(3) the testimony assists the trier of fact through the application of scientific, technical or specialized expertise. Cheairs v. State, DOTD, 03-0680 (La.12/3/03), 861 So.2d 536.

The test of competency of an expert is his knowledge of the subject about which he is called upon to express an opinion. A combination of specialized training, work experience, and practical application of the expert’s knowledge can combine to demonstrate that a person is an expert. State v. Taylor,, 42,627, at 10 (La.App. 2 Cir. 10/24/07), 968 So.2d 1135, 1143.

In Daubert, the court established factors for evaluating the methodology employed by expert witnesses, including the “testability” of the scientific theory or technique, whether the technique has been subjected to peer review and publication, the known or potential rate of error, and whether the methodology is generally accepted in the scientific community. Daubert, 509 U.S. at 593-94, 113 S.Ct. at 2796-97. Daubert emphasized that its application is “flexible.” Id., 509 U.S. at 594, 113 S.Ct. at 2797. While the trial court may consider one or more of the four Daubert factors, those factors do not necessarily or exclusively apply to all experts or in every case. State v. Allen, 41,548 (La.App. 2 Cir.11/15/06), 942 So.2d 1244, citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226.

The Louisiana Supreme Court in State v. Foret, 628 So.2d 1116 (La.1993), characterized the Daubert factors as “observations” which provide a “helpful guide for our lower courts in considering this difficult issue.” Id. at 1123. The factors listed in Daubert are not requirements that must be met, nor are they applicable to all types of expert testimony. Isla Resources, LLC v. Frey, 2005-1607 at 6-7 (La.App. 3 Cir. 5/31/06), 931 So.2d 1233, 1238; Cleland v. City of Lake Charles, 02-805, 02-1463 (La.App. 3 Cir. 3/5/03), 840 So.2d 686. In fact, experience alone is sufficient to qualify a person as an expert. Isla Resources, 2005-1607 at 7, 931 So.2d at 1238. State through Dept. of Transp. and Development v. Wahlder, 94-761(La.App. 3 Cir. 12/7/94), 647 So.2d 481.  

2. Expert’s  testimony is helpful to understanding the industry standards regarding sales persons in the trucking industry.

The jury had to determine whether an employee acted within the course and scope of his employment at the time of a motor vehicle accident.
The employee had  testified that on the evening of the accident, he met and entertained a customer at a bar. The accident occurred after he left the bar and was on his way home.
In contradiction to the written policies regarding operating company vehicles after consuming alcohol, he also testified that the trucking company  knew all salesmen drank but did not have a problem with it as long as they did not get caught.  He testified that managers knew that salesmen routinely entertained with alcohol and that this was “part of the known way of doing a salesman’s job.”  Furthermore, he said that “all freight lines” permit their sales representatives to drive a car after drinking alcohol as long as they did not get caught.  Apparently, according to the former employee, entertaining customers with alcohol and then driving company vehicles was  a part of the job in the freight industry in general based on his experience in the freight industry. 
Obviously, the employee had been terminated for violating company policy and he had a vendetta against the company, his former employer; however, we needed more than just the evidence of bias. We needed to prove a negative. In other words, that the trucking did NOT violate its own policy and that is NOT industry standard to allow salesmen to drive drunk.

The potential customer that the former employee allegedly met on the night of his accident did not recall meeting the salesperson  for drinks. Nevertheless, the Plaintiffs intended to present testimony of this customer that it was a standard practice for trucking sales representatives to entertaining him with alcohol.    He said  that “it was normal for alcohol to be involved when a freight salesman was trying to hustle business for its [sic] company after hours.”

Clearly, the  Plaintiffs wanted to present to the jury that trucking companies encouraged salesmen to entertain customers with alcohol in spite of their company policies. Through the testimony of the former employee and a customer, the Plaintiffs attempted to make an issue regarding the trucking industry standards regarding the business practices of sales representatives and the use of company vehicles.
The Plaintiffs had no problems with the qualifications and methodology of of these lay people to render opinions on the standard business practices in the trucking industry. In contrast, our expert was/is an accomplished professional safety and risk management expert in the transportation industry.  His expertise included the creation and enforcement of company safety programs for trucking and non-trucking employees alike.  In his experience, he was personally familiar with the appropriate business practices of sales representatives and corporate policies for the use of company vehicles. 
3. Is the expert helpful for the jury to understand the standard practices in the trucking industry regarding the hiring of employees?

The jury had to determine if the trucking company negligently hired the employee.   The Plaintiffs’ claim hinged on their ability to establish a general industry hiring standard for trucking sales representatives and to establish that the trucking  failed to adopt or execute that standard practice. With his extensive expertise in transportation industry hiring practices, our expert would assist the jury to understand the industry standard for hiring and performing background screening on trucking sales representatives.

While there are no federal regulations for hiring sales representatives, the same background screening standards applied to non-trucking employees to  its tractor-trailer drivers. Thus, the jury would require expert testimony to understand the specialized nature of trucking industry hiring practices. The hiring of tractor-trailer drivers most certainly involves specialized knowledge.
Hiring standards in the transportation industry are explicit in that they are regulated by the Federal Motor Carrier Safety Regulations. In order to adequately understand hiring practices, the jury will require the testimony of an expert in the application of the Federal Motor Carrier Safety Regulations.

Through extensive experience in safety, risk management, and human resources in the transportation industry, an expert may be able to compare the policies of a particular trucking company to the statutory requirements, industry standards, and common practices of the transportation industry. His management and consulting credentials include management and reorganization of trucking company hiring practices. He also has extensive personal experience with performing employee background checks.

Louisiana state and federal courts have regularly permitted expert testimony regarding industry standards of care, including in cases involving hiring practices:
In a slip and fall accident case, the trial court abused its discretion in disqualifying an expert in the field of industrial safety, loss prevention and hazard identification, including federal OSHA regulations. Manchack v. Willamette Industries, Inc., 621 So.2d 649 (La.App. 2 Cir. 6/23/93).

When a seaman was injured on a drilling rig, the court permitted an expert in the planning and execution of deep water well drilling programs who had specialized knowledge of the oil rig industry practices, OSHA and Coast Guard regulations, and the American Petroleum Institute (“API”) standards. Parfait v. Transocean Offshore, Inc., 2004-1271 (La.App. 4 Cir. 8/10/07), — So.2d –, 2007 WL 2473252.

In a case involving an explosion on a drilling barge, the court permitted expert testimony regarding the standard of care prevalent in the oil industry. Bergeron v. Blake Drilling & Workover Co., Inc., 599 So.2d 827 (La.App. 1 Cir. 1992).

An expert opinion was permitted to testify on the standard for underwriting practices of life insurance companies. Lane v. Life Ins. Co. of Va., 176 So.2d 202 (La.App. 4 Cir. 1965).

In an employer’s breach of contract action against a staffing agency, the court permitted expert testimony in the standard of care for screening an applicant in the staffing industry. Isla Resources, LLC v. Frey, 2005-1607 (La.App. 3 Cir. 5/31/06), 931 So.2d 1233.

In a civil rights action against the police department, the court permitted an expert witness in the field of police operations and administration with expertise in national standards and applicant screening policies to testify. Snyder v. Trepagnier, 142 F.3d 791 (5th Cir. 1998).

In a civil rights action against a city, the court permitted expert testimony on whether the defendant was negligently hired and retained and whether the defendant was deliberately indifferent to the treatment of prison inmates. Washington v. City of Shreveport, NO. CIV. A 03-2057, 2006 WL 1778756 (W.D.La. Jun 26, 2006).

In a suit involving a boat sinking accident, the court heard expert testimony that the standard industry practice is to hire pilots who have their radar endorsement. Complaint of Cameron Boat Rentals, Inc., 683 F.Supp. 577 (W.D.La. Apr 08, 1988).

In a civil rights action against a deputy sheriff, the court permitted expert testimony on the standard of police policies and procedures on hiring and training officers. Brown v. Bryan County, OK, 219 F.3d 450 (5th Cir. 2000).

The Plaintiff also proposed that our expert di  not give a methodology for his findings.  The Plaintiffs misapplied this factor of the Daubert standard. The specific Daubert factors, are most applicable to scientific expert testimony whereby an expert’s methodology would typically be subjected to peer review and tested for reliability. Although Daubert’s general holding applies to non-scientific expert testimony as well, its factors are intended to be flexible. The court is free to add or omit factors that are not applicable to the expert’s particular field.

In this particular case, the expertise was was  in safety and risk management policies and procedures in the trucking industry, especially with regard to the hiring of employees. His area of expertise is in the trucking industry standards of care. He did not propose to apply science.

In the context of the trucking industry, federal courts have held that, an expert may base an opinion on personal knowledge when the testimony is used to establish an industry standard. Garrett v. Albright, 2008 U.S. Dist. LEXIS 18615, (W.D. Mo. 3/11/08) (citing Knous v. ConAgra Foods, Inc. 2006 U.S. Dist. LEXIS 78632 (W.D. Ky. 10/27/06). See also, C.C. v. Roadrunner Trucking, Inc., 823 F.Supp. 913, 923 (D. Utah 1993) where the plaintiffs introduced expert testimony regarding the hiring practices of a trucking company.

In response to the Plaintiff’s claim of negligent hiring, the expert was retained to evaluate its policies and procedures for hiring sales representatives to determine the effectiveness of its policy and determine whether they met recognized and accepted standards in the trucking industry.  The expert’s findings were based on his extensive experience in managing the safety and hiring practices of trucking companies and consulting with the trucking industry to increase safety and improve hiring practices. 
We were successful in maintaining our expert in this case. If you run into similar issues, perhaps some of the arguments made here will be useful.
In the meantime, if you need any assistance in north Louisiana or northeast Texas, please don’t hesitate to call day or night.

Mark Perkins
Perkins & Associates, LLC
401 Market Street, Suite 900
Shreveport, LA 71101

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