A Post-Kumbo Decision
 
June 1, 1999
 

Seven days after the U.S. Supreme Court issued its decision in Kumho Tire Co. Ltd. v. Carmichael, ____ U.S. ____, 119 S.Ct. 1167 (3/23/99), which held Daubert principles applicable to engineers and other non-scientists, the Fifth Circuit Court of Appeals decided Black v. Food Lion, Inc., 171 F.3d 308 (5th Cir. 3/30/99). In a routine slip and fall case, the trial judge allowed plaintiff's physician to link fibromyalgia to her accident. The appellate court found that the trial judge abused his discretion in admitting the opinion because the scientific literature did not support such a linkage and the physician's methodology of eliminating other causes for the condition was very like the engineer's flawed methodology in Kumho. The court held that applying the Daubert criteria would have resulted in exclusion of the testimony, and to depart from the Daubert criteria (as Kumho appears to permit) required the trial judge to "use the same level of intellectual rigor that characterizes the practice of an expert in the relevant field."