Using Industry Standards In Daubert Challenges: Context Matters

In the recently-decided Adams v. Laboratory Corporation of America, Case No. 13-10425, the 11th Circuit Court of Appeals provided some legal guidance on application of industry guidelines to motions to exclude expert testimony.

The case concerned the Plaintiffs’ claim that Defendant LabCorp repeatedly failed to identify abnormal cells in Pap smear reviews, resulting in a delay in diagnosing Mrs. Adams’ cancer. Defendant argued that Plaintiffs’ Pap smear expert should be excluded under the Daubert rule (Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993), noting that while the Plaintiffs’ expert merely examined the slides in question, the American Society of Cytopathology and College of American Pathologists recommend a ‘blind’ approach mixing the plaintiff’s slide with other normal and abnormal slides when reviewed by claimants for litigation. U.S. District Court Judge William Duffey, Jr. granted the Defendant’s motion and, based upon that ruling, granted summary judgment for the Defendant. Plaintiff appealed to the 11th Circuit Court of Appeals.

In an unsigned opinion, the 11th Circuit panel reversed the trial court judge and vacated the grant of summary judgment. The panel noted that Plaintiffs’ expert had utilized a widely-accepted methodology in performing the Pap smear reviews; in fact, it was the same methodology used by LabCorp’s own expert. The opinion harshly criticized the trial judge’s reliance on industry trade group-sponsored recommendations that “attempt to define and limit the evidence courts should accept when the group’s members are sued”, noting that trade groups have a substantial interest in making lawsuits against their members more difficult.

While Adams v. Laboratory Corporation of America does not create a specific rule for interpretation and use of industry standards in Daubert challenges, it does point out an important consideration – namely, the source of the industry standard may be a consideration in its application for use in a Daubert challenge. In particular, courts will take a hard look at industry standards promulgated by trade groups which act to limit claims against members of the industry.

Nick Hinson