Applying Daubert Expert Standards Flexibly On A Motion For A Preliminary Injunction

On a motion for a preliminary injunction, the district judge could admit the proffered expert testimony without a Daubert hearing and then use the Daubert standards to exclude the expert testimony as  insufficiently reliable,  in Attorney General of Oklahoma v. Tyson Foods, Inc., 565 F.3d 769 (10th Cir. May 13, 2009) (No. 08-5154)

Normally, a party offering expert testimony holds the burden to meet the standards under FRE 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). How do these standards apply during a motion for a preliminary injunction, if at all? The Tenth Circuit recently considered this issue and found no abuse of discretion by the district court in admitting all of the proffered expert testimony by two experts but then excluding the expert testimony as  insufficiently reliable  under Daubert.

Attorney General of Oklahoma v. Tyson Foods, Inc.

In the case, the State of Oklahoma sought a preliminary injunction under the Resource Conservation and Recovery Act (RCRA) to enjoin defendant Tyson Foods, and other poultry processors, from applying poultry waste to any land within the Illinois River Watershed (IRW) –  one million acres of land across Arkansas and Oklahoma  that was also  home to hundreds of large-scale poultry farmers.  Tyson, 565 F.3d at 773-74. Defendant Tyson claimed the contamination resulted from  myriad sources, including wildlife, various farm animals, and humans  and that in any case the processing used for the poultry waste effectively  results in the death of the bacteria. 

State's Proffered Experts

To support its argument that poultry liter was the source of contamination in the IRW, the state relied on two experts, Dr. Valerie Harwood and Dr. Roger Olsen. As described in the opinion:

 Dr. Harwood holds a Ph.D. in biomedical sciences and is a tenured associate professor at the University of South Florida. She testified to her use of a polymerase chain reaction (PCR) methodology, which she claims allowed her to identify poultry litter DNA in the IRW soil and waters. Dr. Olsen holds a Ph.D. in geochemistry and works for Camp, Dresser, McKee (known as CDM), an engineering, construction, and consulting company. He testified to his use of the principal component analysis (PCA) methodology to show excessive bacterial presence in the IRW. Based on this testimony and that of other witnesses, Oklahoma argues that poultry litter is a substantial cause of the IRW's allegedly dangerous bacterial contamination levels. 

Tyson, 565 F.3d at 775 (citations to record omitted).

Preliminary Injunction Denied Based On Failure Of Expert Proof

The district court presided over eight days of evidentiary hearings. The judge then denied the preliminary injunction, concluding that the state  failed to demonstrate that 'bacteria in the waters of the IRW [was] caused by the application of poultry litter rather than by other sources, including cattle manure and human septic systems.'  Tyson, 565 F.3d at 775 (citations omitted). The court found that the testimony of the state's two experts was  not sufficiently reliable  to be considered and as a result the state's showing of a link between the poultry waste and the IRW bacteria levels was not shown. The state filed an interlocutory appeal, based in part on the exclusion of the expert testimony as not sufficiently reliable under Daubert.

Reliable Methodologies Not Sufficient Absent Proper Application

The Tenth Circuit affirmed the exclusion of the expert opinion during the preliminary injunction motion. The circuit rejected the state's claim  that Daubert should not have been used to assess the application of the experts' methodologies, but rather should have been used to assess only the methodologies upon which the doctors reliedTyson, 565 F.3d at 780. The district court was not confined to only assessing the reliability of the methodology and to ignore whether the methodology had been properly applied. The appropriate standard to apply was that  any step that renders the analysis unreliable renders the expert's testimony inadmissible. This is true whether the step completely changes a reliable methodology or merely misapplies that methodology.  Tyson, 565 F.3d at 780 (quoting Mitchell v. Gencorp Inc., 165 F.3d 778, 782 (10th Cir. 1999) (no error in excluding expert testimony that exposure to chemical made by defendant caused plaintiff's leukemia) (emphasis omitted))).

Variation On Daubert Standard

The circuit noted that the district court engaged in a variation of the Daubert process to consider the expert testimony. Rather than conduct a Daubert hearing to decide first whether to admit the expert testimony, the court instead  admitted all proffered expert testimony  and then  relied on Daubert to govern the weight accorded to that evidence. In its opinion and order, the court took issue with the fact that the experts' work had not been peer reviewed or published, and that 'no one outside this lawsuit ... has either validated or sought to validate [the experts'] scientific work.' Thus, the court held the experts' testimony and conclusions to be insufficiently reliable.  Tyson, 565 F.3d at 780 (citation omitted).

The circuit dismissed the state's argument that it was a  legal impossibility  to  both admit[] the testimony and subsequently find[] it unreliable.  During the motion for a preliminary injunction, the court had  greater leeway in admitting questionable evidence [and] weighing its persuasive value upon presentation.  There was no abuse of discretion. The circuit also noted that  a judge conducting a bench trial maintains greater leeway in admitting questionable evidence, weighing its persuasive value upon presentation  and  the usual concerns regarding unreliable expert testimony reaching a jury obviously do not arise when a district court is conducting a bench trial.  Tyson, 565 F.3d at 780 (citing Seaboard Lumber Co. v. United States, 308 F.3d 1283, 1302 (Fed. Cir. 2002) (issues of prejudice are  of lesser import in bench trials, where no screening of the factfinder can take place  but this does not obviate need for the usual Daubert gatekeeping)).

Applying Reliable Methodologies In Unproven Or Novel Ways Can Violate Daubert

The circuit found that the judge's decision to dispense with the expert's testimony was justified because  when experts apply methodologies in novel ways, they may arrive at conclusions that result in 'too great an analytical gap between the data and the opinion proffered' to be determined reliable. In other words …when experts employ established methods in their usual manner, a district court need not take issue under Daubert; however, where established methods are employed in new ways, a district court may require further indications of reliability.  Tyson, 565 F.3d at 780 (quoting General Electric Co. v. Joiner, 522 U.S. 136, 147 (1997)).

The circuit concluded that this had happened in Tyson. In opining upon the existence of a relation between the bacterial contamination of the IRW and the defendant's use of poultry litter as fertilizer, Dr. Harwood used a polymerase chain reaction (PCR) methodology. This was a novel use of the methodology because it relied on identification and development of poultry-litter-specific DNA primers. Use of the methodology for this purpose had not been previously explored and Dr. Harwood's application of PCR in this way had not been published or peer-reviewed.

Similarly, Dr. Olson's testimony that there was a connection between the IRW contamination and Tyson's poultry liter was unreliable because he relied on principal component analysis (PCA) to identify poultry litter's  'signature' composition.  This type of analysis required him  to make discretionary decisions about which data he would enter into his calculations. The discretionary decisions in his methodology had not been tested or peer reviewed, nor did his procedure account for alternative sources of the poultry-litter components.  The circuit concluded that the district court's decision to  discount[ ]  the expert's procedures as  insufficiently reliable  was not an abuse of its discretion. The circuit affirmed the court's finding that  Oklahoma did not link poultry litter with the IRW's bacteria levels  and so the preliminary injunction was appropriately denied. Tyson, 565 F.3d at 781.

The Tyson case demonstrates the flexibility of the district court in applying the Daubert standard during a motion for a preliminary injunction. For other posts exploring the Daubert process during a bench trial, see:

Federal Rules of Evidence