This week, the Ninth Circuit addresses the district court’s gatekeeping role for expert testimony and examines whether federal courts have jurisdiction over COVID-related suits against nursing homes.
ELOSU v. MIDDLEFORK RANCH INCORPORATED
The Court holds that the district court abused its discretion in excluding an fire investigator’s expert testimony.
The panel: Judges Bea, Lee, and Bennett (D. Maryland), with Judge Bennett writing the opinion.
Key highlight: “Although a district court may screen an expert opinion for reliability, and may reject testimony that is wholly speculative, it may not weigh the expert’s conclusions or assume a factfinding role. We are compelled to find that the district court assumed such a role in this case.”
Background: Plaintiffs Maria Elosu and Robert Brace sued defendant Middlefork Ranch, Inc., their homeowners’ association, alleging that the association’s employee’s negligence caused their cabin to catch fire. In support, plaintiffs offered the expert report of a fire investigator who hypothesized that an open-flame pilot light, which the association’s employee had reignited, ignited combustible vapors from an excessive oil stain that had been applied to the wooden deck the previous day. The district court excluded the investigator’s testimony because it found his ultimate conclusions to be speculative, uncertain, and contradicted by multiple eyewitness accounts. The parties thereafter stipulated to summary judgment, concurring that the exclusion of the investigator’s report eliminated any genuine dispute of material fact as to the causation element of plaintiffs’ negligence claim and plaintiffs appealed.
Result: The Ninth Circuit reversed. The Court explained that the appeal turned on whether the investigator’s testimony was “based on sufficient facts or data” under Federal Rule of Evidence 702. The district court abused its discretion in excluding the investigator’s testimony on the ground that his report was too speculative, that his conclusion conflicted with the contractors’ testimony, and that he relied too heavily on the testimony of the plaintiffs. These concerns speak to corroboration, not foundation, and are properly addressed through impeachment before a jury at trial--not exclusion by a district judge at the admissibility stage.
The Court emphasized several principles relevant to Rule 702’s “facts or data” requirement. First, an expert’s specialized knowledge and experience can serve as the requisite “facts or data” on which they render an opinion. Relatedly, the requirement of “sufficient facts or data” does not preclude an expert from making projections based on reliable methodology. Finally, while a court may reject wholly speculative or unfounded testimony, it abuses its discretion if it overlooks relevant data submitted as the foundation of an expert’s remarks.
Applying those principles here, the Court concluded that the district court’s analysis of the investigator’s report exceeded the limited gatekeeping function contemplated by Rule 702. First, the district court overlooked much of the scientific analysis that formed the basis for the investigator’s testimony. Second, the district court weighed the evidence and discredited the investigator’s ultimate conclusions. Finally, the district court erred by demanding “concrete physical or testimonial evidence” in a field characterized by uncertainty. By its nature, a fire’s cause must often be proven through a combination of common sense, circumstantial evidence and expert testimony. The investigator was qualified, he applied broadly accepted scientific principles and professional standards to conduct his analysis, and he relied on the kinds of circumstantial evidence that professional guidelines instruct fire investigators to rely on. His testimony, the Court held, should not have been excluded.
SALDANA v. GLENHAVEN HEALTHCARE LLC
The Court holds there is no federal-court jurisdiction over state-law claims concerning a nursing home’s COVID-19 protections.
The panel: Judges R. Nelson, VanDyke, and Schreier (D.S.D.), with Judge Schreier writing the opinion.
Key highlight: “The PREP Act neither shows the intent of Congress to displace the non-willful misconduct claims brought by the Saldanas related to the public health emergency, nor does it provide substitute causes of action for their claims. Thus, under this court’s two-part test, the PREP Act is not a complete preemption statute.”
Background: After Ricardo Saldano died at Glenhaven Healthcare nursing home, four members of his family sued Glenhaven in state court. They alleged that Glenhaven had violated California law in failing to adequately protect Saldano from COVID-19. Glenhaven removed the case to federal court. The district court concluded that it lacked subject matter jurisdiction and remanded. Glenhaven appealed (an appeal over which the Ninth Circuit had jurisdiction because one asserted ground for removal was the federal officer removal statute).
Result: The Ninth Circuit affirmed. First, the Court rejected Glenhaven’s contention that the federal officer removal statute authorized federal-court jurisdiction because Glenhaven had been acting “pursuant to a federal officer’s directions.” Glenhaven’s primary theory was that the federal government had “conscripted” it into the fight against COVID-19 through various directives. But, the Court emphasized, the Supreme Court had previously made clear that “[a] private firm’s compliance (or noncompliance) with federal laws, rules, and regulations does not by itself fall within the scope of the statutory phrase ‘acting under’ a federal ‘official,’” and Glenhaven had not shown that it did anything beyond comply with government regulations and recommendations. Similarly, the Court concluded that the fact that the federal government had designated nursing homes as part of the “national critical infrastructure” did not mean that all Glenhaven’s actions were at the direction of federal officers.
Next, the Court rejected Glenhaven’s argument that the Public Readiness and Emergency Preparedness (PREP) Act completely preempted any state-law claims related to COVID-19 countermeasures, such that any claim necessarily presented a federal question. The PREP Act authorizes the HHS Secretary to shield any “covered person” from state-law liability for any “covered countermeasures,” and in March 2020 the Secretary had invoked this authority to immunize activities related to “medical countermeasures” against COVID-19, including “any antiviral, any other drug, any biologic, any diagnostic, any other device, or any vaccine, used to treat, diagnose, cure, prevent, or mitigate COVID-19.” The agency had also previously concluded that the PREP Act is a complete preemption statute. But the Ninth Circuit determined that the “agency’s opinion on federal court jurisdiction is not entitled to Chevron deference.” And emphasizing that the PREP Act simply provided “immunity” for a certain class of claims while also establishing a federal cause of action for “willful misconduct,” the Court concluded that Congress had not intended to completely displace all state-law causes of action.
Finally, the Court rejected Glenhaven’s contention that the Saldanas’ claims contained embedded federal questions. As the Court observed, while Glenhaven might invoke the PREP Act as a defense to the claims, “a federal defense is not a sufficient basis to find embedded federal question jurisdiction.”