What is a “Daubert Hearing” in Kentucky?

by Mandy Hicks

A “Daubert hearing” takes its name from a United States Supreme Court case titled Daubert v. Merrell Dow Pharmaceuticals, Inc. It refers to a hearing in which the trial judge evaluates whether testimony or evidence from a particular expert is admissible. The hearing occurs outside of a jury’s presence before trial. This type of hearing is often necessary in a pharmaceutical injury case where the plaintiff alleges the drugs prescribed caused serious harm.

In Kentucky, a trial judge must determine whether the expert will be testifying to (1) technical, scientific, or specialized knowledge that (2) will help the trier of fact understand a fact at issue in the trial. A hearing is not always required, but a trial judge can only rule without a hearing if the record before the court is complete enough to measure the proposed evidence against the standards of reliability and relevance. Evidence must be both reliable and relevant to be admitted.

A 2008 pharmaceutical injury case involving, among other issues, a Daubert hearing arose when a woman gave birth to her second child by cesarean section. She didn’t want to breastfeed, so her obstetrician prescribed the drug Parlodel to stop her lactation. She started the drug and was discharged from the hospital. A few days later, she experienced a headache and pain between her shoulders. The next morning, her mother found her dead.

Research during the investigation led to the discovery that the drug was associated with hypertension, vascular issues, seizures and death arising from seizure. The woman’s estate and family sued the pharmaceutical corporation that made Parlodel and the doctor’s office. The lawsuit complained of products liability and medical malpractice.

The trial ended in a judgment for the plaintiff, with an award of more than $19 million (including punitive damages against the manufacturer). The pharmaceutical manufacturer was determined to be 90% at fault, while the doctor was 10% at fault.

The defendants appealed. The Court of Appeals vacated the portion of the judgment that awarded punitive damages against the manufacturer. The case was sent back for a new trial on the amount of punitive damages. The defendants filed motions for discretionary review by the Kentucky Supreme Court.

The Court explained that before the trial, the defendants had moved for a Daubert hearing. They wanted the court to decide whether the plaintiffs’ causation experts had admissible testimony on the question of whether Parlodel caused seizures in those taking it for lactation suppression. The trial court did not hold the Daubert hearing. The defendants argued that this was improper.

The Kentucky Supreme Court explained that usually a judge may make an admissibility decision with an adequate record that includes proposed expert reports, affidavits, precedent, and deposition testimony. In this case, the trial court had all those materials. Although there was no formal Daubert hearing, the court did hear arguments regarding the reliability and relevance of the experts’ testimony and evidence.

The defendants argued that the evidence submitted was anecdotal and that only an epidemiological study would prove that Parlodel caused seizures. The trial judge had ruled that certain pieces of evidence alone might not definitively prove that Parlodel caused postpartum seizures, when considered together it was reliable enough evidence to put before the jury.

The Kentucky Supreme Court agreed, explaining the four factors a court can look at to determine reliability are:

  1. whether a theory or technique has been or can be tested;
  2. whether the theory or technique has been considered through peer review and publication;
  3. whether there is a high known rate of error with respect to a technique and standards controlling its operation; and
  4. whether the theory or technique is accepted within the relevant specialized community.

However, a reliability analysis is not limited to these factors and reliability for trial purposes does not require scientific certainty.

If you are seriously injured or a loved one is killed, you are likely to feel considerable grief, as well as stress about how you will pay the medical bills, the funeral expenses and other bills. The knowledgeable Kentucky personal injury attorneys of English, Lucas, Priest & Owsley may be able to help you. Contact us at 270-781-6500 or via our online form.