Full Daubert Hearing Is Not Always Required To Admit Expert Testimony (Part IV)

In breach of warranty and negligence action, trial court did not abuse its discretion in admitting the expert testimony of a medical expert that defendant company’s “milk permeate likely caused the calves’ illness”; trial court was not required to hold a Daubert hearing before admitting the expert testimony based on the record which included the expert’s deposition, proposed testimony, party briefing, and credentials, in Millenkamp v. Davisco Foods Intern., Inc., 562 F.3d 971 (9th Cir. April 14, 2009) (Nos. 07-35318, 07-35299)

A recent case from the Ninth Circuit underscores that a formal Daubert hearing is not always required before expert testimony may be admitted. The question is whether the trial court has sufficient information to determine the admissibility of the expert testimony.

In the case, plaintiffs Millenkamps, who raised bovine calves and purchased milk permeate from defendant Davisco Foods International, Inc. (Davisco) for feeding their calves. Within a few days, several calves became ill. Some then died. After performing necropsies on thee of the deceased calves, a veterinarian “posited that the Millenkamps stored the milk permeate at an improper temperature, which allowed lactose to ferment into a harmful lactic acid that caused the calves to fall prey to rumen acidosis.” Millenkamp, 562 F.3d at 974. The Millenkamps filed a breach of warranty and negligence action against Davisco. At trial, the court admitted the medical expert opinion “that the milk permeate likely caused the calves’ illness,” pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and FRE 702. Millenkamp, 562 F.3d at 979. The jury decided that Davisco breached an express warranty and implied warranty of fitness for a particular purpose and awarded damages to the Millenkamps. The trial court denied the Davisco’s motion for judgment as a matter of law or, in the alternative, a new trial. On appeal, Davisco contended “that the district court erred by failing to hold a Daubert hearing before admitting Dr. Kertz’s testimony and that the testimony lacked foundation.” Millenkamp, 562 F.3d at 979.

The circuit found no abuse of discretion. The trial court had discretion whether to hold a Daubert hearing before admitting the expert testimony. The circuit noted there was a sufficient record for the trial court to admit the expert testimony:

“Davisco deposed [expert] Dr. Kertz. The parties provided the district court with briefing on his scientific expertise and proposed testimony prior to trial. The district court could properly determine that this information comprised an adequate record from which the court could make its ruling…. In addition, Dr. Kertz testified as to his credentials, prior to the district court’s ruling on the admissibility of his opinion.”
Millenkamp, 562 F.3d at 979 (citing Oddi v. Ford Motor Co., 234 F.3d 136, 154 (3d Cir. 2000) (“district courts are not required to hold Daubert hearings, but may follow the course they see fit to determine the reliability of expert testimony”; trial court determined the reliability of the crashworthiness expert’s testimony based on the record of the experts’ preliminary reports, amended report, affidavit prepared to meet Daubert challenge, and the experts’ depositions), cert. denied, 532 U.S. 921 (2001). On this record, the trial court “conducted an adequate inquiry before admitting Dr. Kertz’s testimony (despite not conducting a separate Daubert hearing).” Millenkamp, 562 F.3d at 979.


There was also a sufficient foundation to admit the expert testimony. As the circuit explained, the expert

“arrived at his conclusions using scientific methods and procedures.… The Millenkamps’ veterinarian, Dr. Mihlfried, had previously identified rumen acidosis as the likely cause of death in the calves he had examined. Dr. Kertz provided foundational testimony as to his background in calf nutrition and knowledge of acidosis, including several peer reviewed publications. Dr. Kertz testified also that he analyzed the Millenkamps’ feed mixture with the ‘Young Calf Model’ -- a peer reviewed computer program for evaluating a feed mixture.”
Millenkamp, 562 F.3d at 979. Finally, the expert was not obligated to employ a “differential diagnosis methodology.” Other means to identify the cause of the illness could be employed.


For other cases noting the discretion of the trial court on whether to hold a Daubert hearing, see Full Daubert Hearing Is Not Always Required To Admit Expert Testimony (I);(II);(III)

Federal Rules of Evidence
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