Mississippi Supreme Court Reaffirms Trial Court's Role As Gate-Keeper
In Smith v. Clement, No. 2006-CA-00018-SCT (April 2, 2008), the Mississippi Supreme Court reaffirmed the trial court's responsibility to act as a gate-keeper for introduction of expert testimony, following Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In Smith, the defendant school district brought a third-party complaint against M&W, the installer of propane fuel systems used in the district's buses. A bus fire had injured several students, and the district claimed that M&W's negligence was the proximate cause of the fire.
The district moved for summary judgment; its expert, Richard Forbes, Ph.D., provided an affidavit in support of the motion. The Forbes affidavit averred that the fire was caused by a leak in copper tubing, which had been improperly flared; and stated that, in Forbes's opinion, the copper tubing involved at the time of the fire was the same tubing that had been originally installed by M&W. In response, M&W moved to strike Forbes's affidavit. M&W's expert, Derek T. Nolen, provided an affidavit outlining his background in the analysis of mechanical systems and fires and explosions involving propane gas. Nolen's affidavit also stated that no reliable or valid scientific principles existed from which Forbes could have opined that the copper tubing was the same as that originally installed.
The circuit judge granted M&W's motion to strike, holding that Forbes's opinions "expressed by . . . his affidavit are nothing more than unsupported conclusions which are devoid of a factual basis and not the product of reliable principles and methods." The court also granted M&W's motion for summary judgment, finding that there was no genuine issue of material fact as to causation, as the plaintiffs had not offered credible expert testimony on this point.
In its appeal, the district argued that Daubert requires that the circuit court hold a hearing as to the admissibility of Forbes's testimony. The Supreme Court found this argument to be without merit: "We have never held that a trial court is required to hold a formal 'Daubert' hearing when an expert's opinions are challenged. We only require that . . . the party sponsoring the expert's challenged testimony be given a fair opportunity to respond to the challenge." Because the district did not respond for five months after M&W provided Nolen's affidavit to challenge Forbes's affidavit, the Supreme Court found that the trial court had not erred in striking Forbes's affidavit.
Presiding Justice Waller, joined by Presiding Justice Diaz and Justices Easley and Graves, dissented from the Court's opinion. Justice Waller's dissenting opinion would reverse the grant of summary judgment for M&W and remand the case for further proceedings, on the basis that neither Forbes's nor Nolen's affidavit should be given greater weight than the other, and that a disagreement between two experts as to causation demonstrates that a material fact issue existed. Such a disagreement, according to the Waller dissent, "goes to the weight of the evidence and should be heard at trial."
Presiding Justice Diaz wrote separately to register his disagreement with the majority's approach. Although the majority opinion points out that the plaintiff schoolchildren had settled separately with the school district, leaving only the district's claim against M&W, Justice Diaz's dissent argues that "the result of [the majority's] opinion is to derail the cause of action of two children who were terribly burned on a school bus." In Justice Diaz's view, the majority's approach improperly "refused to allow [the] plaintiffs an opportunity to be heard regarding the expert testimony they wish to offer, departing from our rules, established precedent, and standard litigation practice."
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