An Expert Finds the Other Side of Daubert
By Robert H. Alexander, CPA/ABV/CFF, ASA
Experts must not ignore the issue of causation when preparing their damage analyses, but as the expert in Rowe discovered, they must not go to extremes.
Up and coming experts too often learn the hard way to keep the Daubert standards front of mind. That said, it is very uncommon to see an expert put such a focus on the Daubert standards that they achieve the same result as not considering them at all. A Federal District Court for the Central Division of Utah (the “Court”) recently ruled on a Daubert motion alleging an expert went overboard with the standard, finding that an expert went way too far with their theory of Daubert.
In the case, Thomas Rowe v. DPI Specialty Foods, Inc, et al., (“Rowe”),[1] the Court found that the defendant’s expert (“Expert”) went so far with his assessment of causation that he put himself in the shoes of the jury, and the Court excluded his opinions.
In many cases, it is difficult for the expert to find the proper role of causation. Experts are taught not to make baseless assumptions just because they are asked to. (See my blog post Expert’s Should not Assume Causation[hyperlink]) But how deep in the weeds of causation does an expert need to go? The ruling in Rowe is painfully instructive in describing in detail how an expert can go too far.
Rowe involved the alleged wrongful termination of Mr. Rowe as the result of defamatory statements made by a customer. The issue with the Expert’s report was how far does a damages expert need to go to appropriately vetting the causal link between the defamatory comments and Mr. Rowe’s termination. Perhaps the best summary of the Expert’s position on causation and damages is made in his report. “…[A]n expert must fully consider and provide evidence supporting the assertion that the incident in question is causally linked to the damage elements. He must also provide all of the facts that support any assumptions made in the damage calculation.” This states his position, and he sticks to it.
In his report the Expert includes pages of quoted deposition testimony, reviews the methodology used by the vocational expert, and states that Mr. Rowe needs to get an online college degree while continuing to work. Then he concludes, “[B]ased on the evidence provided and my analysis, as detailed in this report, Mr. Rowe’s termination resulted directly from his own actions,” thus no damages. The Court did not look favorably on this analysis.
The Court’s ruling is very helpful by clearly reminding that, while experts must understand the causation issues in their cases – they must clearly understand what their responsibilities are related to causation and what they are not. As the court said, “[The Expert] cites three editions of the same Litigations Service Handbook to support his theory that the topic of causation “continues to be expanded,” and notes the authorities counsel that “the [economic expert] should not blindly accept the conclusions of others without exercising due professional skepticism in applying these conclusions to the facts of the case.” However, he twists this citation about blind acceptance of others’ conclusions into the assertion that “an expert has a duty to understand and prove that a causal link exists between the incident and each of the damages elements,” and that “an expert is specifically precluded from relying upon an assumption that economic causation exists.” His assumption of a duty to “prove” is unfounded.
Mr. Rasmussen’s misreading of the texts he cites is very troubling. But significantly more troubling are his assumptions about his role in the courtroom. An expert witness has no duty to prove causal links between incident and damages. An expert opines on facts which the expert assumes will be proven, and an expert can explain the bases for an opinion. But an expert is not to opine on the weight of the facts or take a principal role in sifting, weighing, and reciting them for the jury.”[2]
[1] Citing Roman L. Weil, Daniel G. Lentz, and David P. Hoffman. Litigation Services Handbook: The Role of the Financial Expert 4.22 (5th ed. 2012).
[2] Thomas Rowe v. DPI Specialty Foods, Inc., et al. 19 Aug. 2015,
https://docs.justia.com/cases/federal/district-courts/utah/utdce/2:2013cv00708/90020/171. Accessed 16 Apr. 2019.