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Superior Court Excludes Plaintiff's Experts Pursuant to Defendant's Daubert Motion

Posted In Toxic Torts
Bowen v. E. I. du Pont de Nemours and Co., Inc., C.A. No. 97C-06-194 CH, 2005 WL 1952859 (Del. Super. Ct. June 23, 2005), aff'd, 906 A.2d 787 (Del. 2006). In this case, the plaintiffs, eight minor children and their parents, alleged that the children suffered from birth defects because of an agricultural product called Benlate. Alleging that certain of the experts for one of the plaintiffs were unqualified and that their opinions were unreliable, the defendant brought a Daubert motion pursuant to Delaware Rule of Evidence 702 to exclude their testimony regarding one of the minor children. The Court found for the defendants, and excluded the experts' testimony DuPont argued that to be admissible an expert must not only state the cause of the condition, but also must rule out other possible causes of the minor child's problems, such as a genetic disorder. Originally, plaintiff claimed its experts were able to rule out a genetic problem based on genetic testing. However, two years after the original testing, genetic testing had advanced, and the minor child was retested. Based on the results, one of the minor child's experts concluded that he could no longer rule out genetics as a "substantial cause" of the injury. Following the testing, he concluded that the Benlate interacted with a genetic mutation to cause the minor child's problems. Applying the Daubert factors, the Superior Court found a number of reasons to exclude the testimony of Dr. Howard, one of the minor child's experts. First, the Court found that Dr. Howard, a medical doctor specializing in toxicology and fetal pathology, was not an expert in genetics. Second, the expert's conclusion regarding the interaction between the genetic defect and Benlate had not been subjected to peer review, nor was it generally accepted by the relevant scientific community. Third, the Court determined that there was no factual evidence that the minor child's problems were caused by anything other than a genetic mutation. Because the expert's opinions were not tied to the facts of the case, the Court found his opinion unreliable. The court also found that Dr. McIntosh was not qualified to testify as an expert in the field of dermal absorption. Because the court excluded the testimony of Dr. McIntosh, the plaintiffs' other experts were also barred from relying on his conclusions. Authored by: Jason C. Jowers 302-888-6860 jjowers@morrisjames.com