Guest author Robert J. Ambrogi is the only person ever to hold the top editorial positions at both national U.S. legal newspapers, the National Law Journal, and Lawyers Weekly USA. An experienced attorney, ADR professional, writer and legal technologist, Bob formerly served as director of the Litigation Services division at American Lawyer Media.
Much is made of the fact that Sonia Sotomayor was a federal district judge before she was named to the federal appeals court. After all, if confirmed to the Supreme Court, she would be the only one of the nine justices to have sat on the trial bench. The experience of someone who has served as a trial judge would be a
worthy addition to the high court, many believe. If so, then one of the
bread-and-butter issues in which trial judges get no shortage of
experience is the admissibility of expert testimony.
do Sotomayor's appellate opinions on the 2nd U.S. Circuit Court of
Appeals tell us about how her trial court experience shaped her rulings
on expert witness issues?
To find out, we reviewed the
expert-related cases in which she either wrote the opinion or sat on
the panel. Many were mundane, dealing with case-specific questions of
whether the trial court should or should not have allowed the expert to
But others were more notable, either because they
made new law or expanded the understanding of prior law. Based on our
review, here are our selections of Sotomayor's five most important
cases involving expert witnesses.
case presented a question never before decided by a federal appeals
court: Do admiralty cases under the Jones Act, which have a relaxed
standard of proof, also have a lower standard for the admission of
The case involved a widow who alleged her
husband's cancer death resulted from exposure to benzene while working
on a vessel. The district court dismissed the case on summary judgment,
finding that the widow had offered insufficient evidence of causation.
appeal, the widow argued that traditional standards of reliability and
credibility used to determine admissibility of expert testimony should
be relaxed under Jones Act cases.
"Daubert's standards for determining the admissibility of expert
testimony apply regardless of whether the plaintiff's burden to prove
causation is reduced."
The widow also argued that, under the
Jones Act, she should not be required to produce any expert evidence of
causation at the summary judgment stage. Sotomayor gave short shrift to
this argument. "In a case such as this, where an injury has
multiple potential etiologies, expert testimony is necessary to
establish causation, even in view of plaintiff's reduced burden to
The widow's final argument was that the trial
court had abused its discretion by excluding expert testimony on the
level of benzene exposure that could cause cancer. Sotomayor found no
abuse of the trial court's discretion.
2. Jarvis v. Ford Motor Co., 283 F.3d 33 (2nd Cir. 2002).
wrote the decision for the three-judge panel in this products liability
case alleging the sudden acceleration of a Ford Aerostar. After trial,
a jury returned a verdict for plaintiff on her negligent-design claim
but not on her claim for strict liability.
Ford objected to
the verdict on the ground that it was inconsistent. The trial judge
agreed and further held that the evidence was insufficient to support a
verdict for plaintiff on either theory. The judge granted judgment for
Ford and dismissed the complaint.
reinstated the verdict in favor of the plaintiff. She found that the
evidence was sufficient for the jury to find that the Aerostar
malfunctioned due to Ford's negligent design.
Key to her
analysis was the testimony of the plaintiff's expert, an electrical
engineer. He offered a theory as to why the Aerostar's cruise control
was defective and how Ford could easily have remedied it.
district court held that the expert's theory did not provide direct
proof of a defect and therefore was insufficient to prove plaintiff's
case. But Sotomayor wrote that plaintiff need only show circumstantial
evidence of a defect.
"The district court erred in requiring
proof of a specific defect in the Aerostar's cruise control and in not
considering Jarvis's circumstantial evidence of a defect," she said.
3. In re Visa Check/Mastermoney Antitrust Litigation, 280 F.3d 124 (2nd Cir. 2001)
antitrust case sought certification of a class action on behalf of
merchants against Visa and MasterCard. The district court certified the
class and the credit card companies appealed.
Sotomayor wrote the opinion for this three-judge panel affirming the class certification. One panel member dissented.
central issue was whether the report of the plaintiffs' expert was
sufficient to support class certification. The defendants objected to
use of the report, arguing that its analysis was flawed.
rejected this argument, holding that the standard of expert testimony
for certification of a class is less than is required on the merits of
"The district court correctly noted that its
function at the class certification stage was not to determine whether
plaintiffs had stated a cause of action or whether they would prevail
on the merits, but rather whether they had shown, based on methodology
that was not fatally flawed, that the requirements of Rule 23 were met."
4. Olivier v. Robert L. Yeager Mental Health Center, 398 F.3d 183 (2nd Cir. 2005).
did not write this opinion, but she was one of two judges in the
majority of this three-judge panel. The opinion overturned a jury
verdict in a civil rights lawsuit alleging involuntary civil commitment
without due process.
Frank Olivier brought the lawsuit
against a mental health facility and three doctors. He alleged that the
doctors ordered his commitment unlawfully because they did not believe
he posed a danger to himself or others. A jury returned a verdict in
At trial, no party introduced expert testimony.
But after the doctors testified as fact witnesses, the trial judge said
he would treat them as experts because they rendered psychiatric
In reversing the verdict, the majority held that
the plaintiff's failure to introduce expert testimony rendered the
verdict void. "We conclude, based on the record before us, that the
jury was not competent to evaluate the professional propriety of the
defendant doctors' actions without the assistance of expert testimony."
The dissent argued that expert testimony was presented - in
the form of the defendant doctors' testimony - and that nothing further
was required for the jury to render a verdict.
5. In re Initial Public Offering Securities Litigation, 471 F.3d 24 (2nd Cir. 2006).
this securities case involving a request for certification of a class
action, Sotomayor was not the author of the opinion but participated as
a panel member.
The case is significant for two reasons.
First, it addressed an issue described as "surprisingly unsettled in
this Circuit" - that of what standards govern a trial judge in deciding
a motion for class-action certification. Second, it expressly disavowed
Judge Sotomayor's Visa Check opinion, discussed above.
disavow the suggestion in Visa Check that an expert's testimony may
establish a component of a Rule 23 requirement simply by being not
fatally flawed. A district judge is to assess all of the relevant
evidence admitted at the class certification stage and determine
whether each Rule 23 requirement has been met, just as the judge would
resolve a dispute about any other threshold prerequisite for continuing
After a detailed review of the evidence and expert
testimony in the trial court, the panel vacated the lower court's
certification of the class and remanded the case for additional
proceedings. Summing it All Up
What do these cases
reveal about Sotomayor? The opinions she authored show a judge who has
a clear understanding of district court practice. Her opinions also
suggest a tendency to describe lower court proceedings in detail and
review them carefully.
What they do not show is any reluctance
to second guess the trial judge. On purely discretionary issues,
Sotomayor seems inclined to yield to the trial judge's decision. But
when any question of law is involved, she appears ready to overrule the
trial judge if she believes the law was misapplied.
This article was originally published in BullsEye, a newsletter distributed by IMS
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