The peer-reviewed method has a particular importance since relevant articles written by experts are published after reviewed from other experts in the same field. This method makes expert’s testimony credible before the court as it insures the article’s quality; given that, it is more likely to be scientifically valid, arrive at reasonable conclusions and it also compels experts to improve their performance. Although, case law makes emphasis that peer reviewed is essential for reliability, the lack of publication does not exclude the expert’s testimony because as in Primiano v. Cook, 598 F.3d 558 (9th Cir. 2010) the issue may be too particular, new, or of insufficiently broad interest to be in the literature and where the phenomenon is so extraordinary that the specialists who publish articles do not see it in their practices.
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The So-Called “Peer-Reviewed” Method on Expert’s Literature
Primiano illustrates the peer reviewed method for admissibility of expert’s testimony purposes. Here, the plaintiff filed a products liability claim against the manufacturer of a device that replaced the plaintiff’s elbow joint alleging the artificial joint failed to perform in the manner reasonable to be expected by a surgeon using it. After eight months since the plaintiff had elbow surgery, she had five additional surgeries as a result of the extreme pain she was experiencing with her elbow. So, to establish a defect in the manufacture of the artificial elbow, the plaintiff called an expert witness who testified that the fact that the plastic part of the artificial elbow failed so quickly in less than eight months was not a usual or expected condition because such a device typically lasts ten or fifteen years, and in some cases even twenty.
Subsequently, the manufacturer filed a motion based on Daubert to exclude the expert’s testimony arguing that the expert did not talk or examine the plaintiff and there was no peer reviewed literature or publication; and thus, there was not an objective source that the expert’s opinion relied upon. Based on that, the expert explained that very short duration of the plaintiff’s artificial elbow was outside of his review of the known literature. Later, the expert accepted on cross examination that there was, “no published peer-reviewed article that [I’m] aware of that states a strict minimum lifespan of a polyethylene component in a total elbow system,” he explained that “I wouldn’t expect any literature, because you don’t see it. It’s hard to write a paper about something that doesn’t occur. I mean, this is really bizarre.”
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Although, the trial court excluded the expert’s testimony as not meeting the Daubert standard and granted summary judgment, it was reversed on appeal, establishing the fact that the expert never talked or treated the plaintiff and there were no publications supporting his opinion that the artificial device failed too quickly might be useful to impeach his testimony, but did not provide sufficient basis for excluding his opinion. The court also recognized that absence of peer-reviewed articles is not the end of the expert’s testimony, particularly when the expert as in this case had the opportunity to explain that “the phenomenon was so extraordinary that specialists who publish articles do not see it in their practice.”
Therefore, the court of appeals concluded that the expert’s background and experience, and most importantly his explanation of his opinion, provided adequate basis for its admissibility; and thus, the expert’s opinion precluded summary judgment, because once the jury accepted it, then the defendant “fail[ed] to perform in the manner reasonably to be expected.”
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