Lose on liability
and still "win" the case?
Lawyers are obtaining desirable outcomes for clients, even after losing
on liability, by using new post-Daubert techniques to exclude expert
testimony that links the act or omission for which their client has
been found liable to the money damages that are sought by plaintiffs.
Among the most recent and most well publicized of these is Black v.
Food Lion from the 5th Circuit, where a jury had awarded several hundred
thousand dollars in a slip and fall case after plaintiff's expert
opined that the fall had caused a hormonal imbalance that in turn
triggered a rare malady. The expert's testimony was subsequently excluded
and damages were reduced to about 3% of the original award. Food Lion
lost on liability but seemingly obtained a desired outcome.
Recently, a Florida appeals court reversed a $4.4 million verdict
in DuPont v. Castillo, 1999 Fla. App. Lexis 1447, disallowing the
expert testimony that linked chemical exposure to a birth defect.
While this page is currently little more than a footnote, the idea
is too important not to mention. More will appear here shortly.