In the space of a single paragraph, General Electric Co. v. Joiner softened Daubert’s comment that a court’s assessment of expert opinion admissibility should focus “solely on principles and methodology, not on the conclusions that they generate” and gave us two of the most heavily quoted snippets in this area of law: opinions are inadmissible when supported “only by the ipse dixit of the expert,” and courts may exclude opinions for which “there is simply too great an analytical gap between the data and the opinion proffered.” 522 U.S. 136 (1997). Joiner’s call to assess an expert’s factual basis and reasoning was incorporated into the text of Rule 702 itself via the 2000 amendments. Regrettably though, some courts have continued to ignore gaps in an expert’s reasoning, quoting Daubert and other pre-Joiner precedent for the proposition that a court should leave disputes over such fact-based issues for a jury to decide — the very argument that Joiner rejected.
A recent decision by the Eleventh Circuit, however, faithfully adhered to the principle that Joiner’s famous “ipse dixit” and “analytical gap” comments espoused. In MidAmerica C2L Incorporated v. Siemens Energy Inc., — F.4th —, 2022 WL 456830 (11th Cir. 2022), Plaintiff intended to open a coal gasification plant and contracted with Defendant to purchase gasifiers and other related equipment. However, various market forces and industry developments began undermining Plaintiff’s efforts shortly after the equipment was delivered. Plaintiff never opened the contemplated plant — or the equipment. However, the year after Plaintiff received its equipment, problems arose with similar equipment that Defendant had sold to a third party. Defendant implemented design changes to the equipment, and internal emails allegedly hinted that Plaintiff’s equipment may need to be replaced or reengineered as well. Meanwhile, Plaintiff’s business “was crumbling” due to adverse market conditions. Plaintiff, unable to keep up with payments on the contract but aware of the situation surrounding the equipment that Defendant had sold to the third party, alleged that the equipment it had been provided was defective and sued for breach of contract.
On the issue of design defect, Plaintiff offered an engineering expert who reasoned that, because the ill-fated equipment that Defendant sold to the third party was nearly identical to the equipment Plaintiff received, Plaintiff’s equipment “would have experienced the same problems . . . if [Plaintiff] had ever opened and used [it].” The expert did not test Plaintiff’s still-uninstalled equipment or even perform any computer modeling or simulations. His opinion rested solely on the analogy to the third party’s experience. But he acknowledged that the third party had run its equipment below the minimum load and used a grade of coal that was outside of the range specified by Defendant — “two variables that [Defendant] listed in the contract as causing problems with the [equipment]” — yet failed to address how these departures would have impacted the equipment. The trial court therefore excluded his opinion, and the Eleventh Circuit affirmed, noting that an expert who admits other factors could have contributed to an outcome “must be able to explain his consideration of the other alternative causes.” However, the expert’s failure to address the “slew of additional variables not present in [Plaintiff’s] situation” rendered the third party’s misused equipment too dissimilar to Plaintiff’s unused equipment to sustain the analogy. Because he “provided nothing but his word and his own ipse dixit,” his opinion was inadmissible.
MidAmerica C2L is an excellent example of a court refusing to turn a blind eye to the sort of analytical gap that Joiner cautioned against. An expert who ignores consequential nuances in the facts of a case does not offer the sort of “shaky but admissible” opinion that Daubert says should be tested by cross examination — such opinions are mere ipse dixits that Joiner says should be excluded.