Second Circuit Holds That Under Hanna v. Plumer, Federal Rather Than State Expert Witness Rules Apply in Diversity Tort Case

In Sarkees v. E. I. DuPont de Nemours and Co., No. 20-3170 (2d Cir. Oct. 6, 2021), the Second Circuit reverses summary judgment in negligence, strict products liability, and loss of consortium action on the ground that the district court erroneously excluded the plaintiff’s expert witness by applying state-law admissibility rules rather than the Federal Rules of Evidence.

Plaintiff alleged that he was exposed to the chemical orthotoluidine (OT) at work that allegedly caused his bladder cancer. “The District Judge precluded [plaintiff’s causation expert] Dr. Oliver’s report and testimony on the issue of specific causation … and ruled that, in the absence of admissible evidence on specific causation, the Defendants were entitled to summary judgment … He denied as moot the Defendants’ motion to exclude the testimony of the Plaintiffs’ expert witness on the issue of general causation … and did not rule on the admissibility of Dr. Oliver’s conclusion on general causation.”

The Second Circuit reverses. The only issue on appeal was the exclusion of Dr. Oliver’s testimony. “In a diversity of citizenship case, state law, here New York’s, applies to substantive issues, and federal law applies to procedural issues. See Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).” And “it has been clear, at least since Hanna v. Plumer, 380 U.S. 460 (1965), that ‘[w]hen a situation is covered by one of the Federal Rules, . . . the court has been instructed to apply the Federal Rule’ unless the rule violates the Rules Enabling Act or constitutional restrictions.”

All circuits that have considered the question have held that the admissibility of expert testimony is controlled by Fed. R. Evid. 702–03. Some circuits following Hanna have specifically held that Rule 702 applies “even when a state rule of evidence may have excluded the evidence if offered in a state court.” The panel notes, though, that state law is not “irrelevant to all evidentiary issues in diversity suits. Several circuits have invoked both Daubert [v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)] and state evidence law by applying their own evaluations of an expert witness’s qualifications under Daubert while applying a state’s evidence rule when considering the competency of the witness, as required by Rule 601.”

Here, the district court “made the [state law] basis for its ruling explicit. ‘Dr. Oliver’s opinions are insufficient under state tort law and must be excluded.’ … And the Court identified the source of the state law it relied on: ‘Dr. Oliver’s proffered opinion is insufficient under Parker [v. Mobil Oil Corp., 7 N.Y. 3d 434 (2006)].’ … However, as we have explained above, whether an expert’s opinion is excludable is to be decided under Rule 702, with the gloss of Daubert, and not ‘under state tort law.’”

Rather than remand the expert issue for further proceedings, mindful that the case is “already more than four years old and brought by a victim of a life-threatening disease,” the panel undertakes the Daubert analysis by itself and holds that Dr. Oliver’s testimony is admissible. “The Appellees’ most insistent criticism of Dr. Oliver’s evidence concerning specific causation is that [Dr. Oliver] ‘entirely failed to provide any form of quantitative risk assessment or a quantifiable range of [Sarkees’] actual exposure” to OT … Yet as her report reveals, she carefully considered available data, including the series of NIOSH reports. Moreover, as other courts have recognized, precise quantification is often not available and not required.”

2 thoughts on “Second Circuit Holds That Under Hanna v. Plumer, Federal Rather Than State Expert Witness Rules Apply in Diversity Tort Case

    1. No, I think it was a rookie mistake on the judge’s part. The Hanna v. Plumer rule is pretty well-established.

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