2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

methodology, resulting in an unreliable opinion. 2011 WL 336721 at *7. The court heldthat the expert was qualified to offer an expert opinion regarding a traumatic brain injurybased upon a review of his curriculum vitae, which demonstrated his sufficient formalqualifications as well as his specific expertise in neurology and brain injury. Id. at *8.Further, the court held that the expert’s methodology, which involved review of otherphysicians’ examinations of plaintiff, an examination of plaintiff he himself performed, anda review of plaintiff’s medical records, was a reliable means of forming an expert opinion.Id. The court cited Qeisi v. Patel, No. 02-8211, 2007 WL 527445 at *7 (E.D. Pa. Feb. 9,2007), for the proposition that an expert may arrive at an opinion by noting the symptomsa patient exhibits and making an evaluation based upon those symptoms. 2011 WL 336721at *8.Conversely, the court in Maldonado v. Walmart Store #2141, No. 08-3458, 2011 WL1790840 (E.D. Pa. May 10, 2011), excluded the testimony of two witnesses pursuant toDaubert because of their insufficiency with regard to methodology and “fit.” Expert #1 inthe case, which involved a decedent who fell into a pool purchased at defendant’s store andthe allegedly negligent design, marketing and sale of that pool, was an aquatics expert whosought to proffer several hypotheses to explain decedent’s injuries. Id. at *3, *9-10. Thecourt held this testimony inadmissible because Expert #1’s hypotheses regarding how thedecedent may have entered the pool and how the decedent may have sustained his injurieswere arrived at using insufficient methodology. Id. at *10-11. More specifically, Expert#1’s opinions regarding what caused decedent’s death could not withstand Daubertscrutiny because they consisted of unsupported speculation and conjecture that was notderived from any testable hypotheses. Id. at *11.Expert #2, a purported “drowning prevention issues” specialist, sought to testifyregarding the nature of the hazards associated with pools, industry awareness of thesehazards, and the proper, safe methods for hazard reduction. 2011 WL 1790840 at *11.The court, while finding Expert #2 was qualified based upon her experience to testifyregarding these issues, nonetheless barred her testimony because of Expert #2’s failure toreview any evidence in the case when forming her opinions. Id. at *12-13. Morespecifically, for evidence to be relevant under Rule 702, it must help the trier of fact tounderstand the evidence, but because Expert #2 failed to review any facts or data in thecase before forming her opinions, her testimony failed to meet this requirement. Id. at *13.Similarly, the court excluded expert testimony in Sterling v. Redev. Auth. of theCity of Phila., No. 10-2406, 2011 WL 6210679, (E.D. Pa. Dec. 13, 2011), because of itsimproper basis. Plaintiff in this case, which involved an alleged breach of contract, soughtto introduce expert testimony that calculated plaintiff’s economic loss resulting from thebreach. Id. at *14. The court excluded this testimony because the expert’s calculationswere based upon projected revenue estimates provided by plaintiff and based on severalassumptions made by plaintiff. Id. at *16. Because plaintiff failed to adduce any evidenceto support his estimates or the assumptions upon which the estimates were based, and theexpert did not independently investigate the reasonableness of these figures, the figureswere based upon nothing more than speculation. Id. at *16-17. Consequently, plaintiff’sexpert was precluded from testifying pursuant to Rule 702. Id. at *16.21