Roger Murray v. S. Route Maritime Sa

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROGER MURRAY; ELISE MURRAY, No. 14-36056
husband and wife,
Plaintiffs-Appellees, D.C. No.
2:12-cv-01854-
v. RSL
SOUTHERN ROUTE MARITIME SA, a
Panamanian corporation; SYNERGY OPINION
MARITIME PVT LTD, an Indian
corporation; APL IRELAND M/V,
IMO number 9260914, her gear,
appurtenances, equipment and
furniture, in rem,
Defendants-Appellants.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted May 10, 2017
Seattle, Washington
Filed August 31, 2017
Before: M. Margaret McKeown, Carlos T. Bea,
and N. Randy Smith, Circuit Judges.
2 MURRAY V. SOUTHERN ROUTE MARITIME SA
Opinion by Judge McKeown;
Dissent by Judge Bea
SUMMARY *
Labor Law
The panel affirmed the district court’s judgment, after a
jury trial, in favor of the plaintiff in an action under the
Longshore and Harbor Workers’ Compensation Act.
While working aboard a vessel, the plaintiff, a longshore
worker, experienced an electrical shock when a piece of
rebar he was holding came into contact with a floodlight
provided by the vessel owner. He alleged that the vessel
owner had been negligent in turning over the ship with a
faulty floodlight.
The panel held that the district court properly instructed
the jury that the vessel owner owed a duty to the plaintiff as
a longshore worker to turn over the ship and its equipment
in a reasonably safe condition, which necessarily required
the vessel owner to take reasonable steps to inspect the ship
and equipment before turnover.
The panel held that the district court did not abuse its
discretion in allowing the plaintiff’s key scientific expert to
describe his theory of electrical injury because the court
adequately assessed the reliability of his theory and fulfilled
its gatekeeping function under Federal Rule of Evidence 702
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MURRAY V. SOUTHERN ROUTE MARITIME SA 3
and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993). The district court also did not err in admitting
the medical experts’ testimony.
Dissenting in part, Judge Bea concurred in the panel
majority opinion’s conclusions and reasoning regarding the
jury instructions, the scope of the defendants’ turnover duty,
and the admission of the statements by the plaintiff’s
medical experts. He dissented from the majority’s
conclusion that the district court properly admitted the
scientific expert’s testimony. Judge Bea wrote that because
the causal mechanism by which low voltage shocks
purportedly cause certain injuries is not understood and
because the district court did not evaluate the methodologies
used by the expert to identify the posited correlation between
low voltage shocks and certain injuries, the district court
abused its discretion in admitting the expert’s testimony.
COUNSEL
Philip A. Talmadge (argued), Talmadge/Fitzpatrick/Tribe,
Seattle, Washington; Barbara L. Holland and David H.
Smith, Garvey Schubert Barer, Seattle, Washington; for
Defendants-Appellants.
Howard Mark Goodfriend (argued) and Ian C. Cairns,
Seattle, Washington; C. Steven Fury, Francisco A. Duarte,
and Scott D. Smith, Fury Duarte P.S., Seattle, Washington;
for Plaintiffs-Appellees.
4 MURRAY V. SOUTHERN ROUTE MARITIME SA
OPINION
McKEOWN, Circuit Judge:
The events underlying this appeal center on Roger
Murray, a longshoreman who experienced an electrical
shock while working aboard the M/V APL IRELAND, a
vessel owned by Southern Route Maritime SA and Synergy
Maritime Pvt. Ltd. (collectively, the “vessel owner”). While
Murray was descending a ladder and holding a piece of
rebar, the rebar came into contact with a floodlight provided
by the vessel owner which allowed electrical current to flow
through his right arm, across his chest, and out through his
left pinky, where it left a visible burn mark. Murray
exhibited a range of ailments after the shock, including
stuttering, balance and gait problems, and erectile
dysfunction.
Murray sued under the Longshore and Harbor Workers’
Compensation Act (“Longshore Act”), 33 U.S.C. § 901 et
seq., alleging that the vessel owner had been negligent in
turning over the ship with a faulty floodlight. The jury
awarded Murray over $3.3 million for his injuries and
awarded his wife $270,000 for loss of consortium. The
district court denied the vessel owner’s motions for
judgment as a matter of law, new trial, and remittitur.
Unwilling to go down with the ship, the vessel owner
appeals, asserting three trial errors—a flawed jury
instruction and two errors related to the admission of
testimony by Murray’s experts. We disagree on all counts.
The district court properly instructed the jury that the vessel
owner owes a duty to Murray as a longshoreman to turn over
the ship and its equipment in a reasonably safe condition,
which necessarily requires the vessel owner to take
reasonable steps to inspect the ship and equipment before
MURRAY V. SOUTHERN ROUTE MARITIME SA 5
turnover. Further, the court did not abuse its discretion in
allowing Murray’s key scientific expert to describe his
theory of electrical injury because the court adequately
assessed the reliability of his theory and fulfilled its
gatekeeping function under Federal Rule of Evidence 702
and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993). Likewise, there was no error in admitting the
medical experts’ testimony. We affirm.
Analysis
I. Jury Instruction Defining the Turnover Duty
Under the Longshore Act
The Longshore Act provides a cause of action to
longshoremen against the vessel owner “[i]n the event of
injury . . . caused by the negligence of a vessel.” 33 U.S.C.
§ 905(b). Here, Murray claims that the vessel owner
breached its duty to turn over the vessel and its equipment in
a safe condition.
At issue is Instruction 14, in which the district court
defined the vessel owner’s turnover duty:
One of the duties [vessel owners] owe to
longshoremen is called “the turnover duty of
safe condition.” [The vessel owner] ha[s] the
duty to use reasonable care to turn over the
vessel and its equipment in such condition
that an expert and experienced longshoreman
would be able, by the exercise of reasonable
care, to carry on his work on the vessel with
reasonable safety to persons and property. In
exercising such reasonable care, [the vessel
owner] ha[s] a duty to take reasonable steps
to inspect the vessel and its equipment.
6 MURRAY V. SOUTHERN ROUTE MARITIME SA
The first sentence is introductory. The second sentence
captures almost word-for-word the Supreme Court’s general
description of the turnover duty:
A vessel [owner] must exercise ordinary care
under the circumstances to turn over the ship
and its equipment and appliances in such
condition that an expert and experienced
stevedoring contractor, mindful of the
dangers he should reasonably expect to
encounter, arising from the hazards of the
ship’s service or otherwise, will be able by
the exercise of ordinary care to carry on cargo
operations with reasonable safety to persons
and property.
Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 98
(1994) (citation and internal quotation marks omitted);
Scindia Steam Navigation Co. v. De Los Santos, 451 U.S.
156, 166–67 (1981). The third sentence of the instruction
gives practical meaning to the turnover duty by recognizing
a duty to inspect the ship and equipment.
In the vessel owner’s view, Instruction 14’s formulation
of the turnover duty is legally flawed because the instruction
improperly expands the vessel owner’s obligation to inspect
the ship and equipment, states that the duty is to the
longshoremen rather than the stevedoring company, and
imposes an ongoing duty to inspect. Reviewing de novo, we
conclude that the district court did not commit instructional
error. See Image Tech. Servs., Inc. v. Eastman Kodak Co.,
125 F.3d 1195, 1208 (9th Cir. 1997).
MURRAY V. SOUTHERN ROUTE MARITIME SA 7
A. Turnover Duty Encompasses Duty to Inspect
The Supreme Court’s first major exposition on the
turnover duty under § 905(b) came in Scindia Steam, which
contemplates a duty to inspect as part and parcel of the
turnover duty. Although a duty to inspect is not mentioned
explicitly, the Court defined the vessel owner’s “duty with
respect to the condition of the ship’s gear, equipment, tools,
and work space to be used in the stevedoring operations.”
Scindia Steam, 451 U.S. at 167. To that end, a vessel owner
fulfills its responsibilities when it provides a reasonably safe
workplace for the longshoremen. Id. at 166–67. The only
way the vessel owner can do so is by checking the ship and
equipment before turning them over in order to confirm that
they are safe enough to be used in cargo operations.
Otherwise, the turnover duty would be rendered nugatory,
taking on a “see no evil” approach.
As one treatise puts it, Scindia Steam “implicate[s] the
shipowner’s duty to inspect the ship for hazards before
turning the ship over . . . because inspection is integral to
providing the stevedore with a reasonably safe workplace.”
Robert Force & Martin J. Norris, The Law of Maritime
Personal Injuries § 8:30 (5th ed. 2016). Justice Brennan’s
concurrence in Scindia Steam reads the majority opinion the
same way, explaining that the law requires a vessel owner to
“take reasonable steps to determine whether the ship’s
equipment is safe before turning that equipment over to the
stevedore.” 451 U.S. at 179 (Brennan, J., concurring).
The Court’s later pronouncements on the turnover duty
reinforce the inspection obligation. After reiterating a vessel
owner’s general turnover duty, the Court in Howlett
examined the “corollary” duty to warn the stevedore of latent
hazards that are known or should be known to the vessel
owner. 512 U.S. at 98–99. The Court went on to conclude
8 MURRAY V. SOUTHERN ROUTE MARITIME SA
that the duty to warn attaches where “the exercise of
reasonable care would place upon the shipowner an
obligation to inspect for, or discover, the hazard’s
existence.” Id. at 100. In explaining the relationship
between the duty to warn and the inspection duty, the Court
cited a Third Circuit case for the proposition that “the
shipowner’s duty to warn the stevedore of hidden dangers
necessarily implies a duty to inspect to discover those
dangers.” Kirsch v. Plovidba, 971 F.2d 1026, 1029 (3d Cir.
1992), cited in Howlett, 512 U.S. at 100. Howlett more than
suggests that reasonable steps be taken to inspect the ship
and equipment before turnover.
Our court has been even clearer on a vessel owner’s duty
to perform an inspection to fulfill its turnover duty. We have
unequivocally held that “[w]here the shipowner itself
supplies equipment, it has a duty to inspect the equipment
before turning it over for use by the stevedore.” Hedrick v.
Daiko Shoji Co., 715 F.2d 1355, 1357 (9th Cir. 1983); see
also Lincoln v. Reksten Mgmt., 354 F.3d 262, 268 (4th Cir.
2003) (“[T]he vessel might have been negligent in the
maintenance, upkeep, and especially the inspection of the
deck in question, so that, in the exercise of reasonable care,
it might have discovered the defect . . . , enabling it to warn
the stevedore of the defect.” (emphasis added)); Reed v. ULS
Corp., 178 F.3d 988, 992 (8th Cir. 1999) (affirming
summary judgment for vessel owner because “[t]he record
reflects that the inspection of the gangway . . . was
reasonable”); Kirsch, 971 F.2d at 1029 (noting “the
shipowner’s duty to inspect the ship for hazards before
turning the ship over to the stevedore”).
This formulation of the turnover duty produces doctrinal
coherence because it logically fits the duty to inspect within
the general turnover duty and its corollary duty to warn. The
MURRAY V. SOUTHERN ROUTE MARITIME SA 9
turnover duty mandates exercising reasonable care to
provide a ship and equipment that are reasonably safe for the
stevedore to carry on cargo operations. Part of that duty is
to examine the ship and equipment. When that inspection
turns up latent hazards that would not be obvious to or
anticipated by a competent stevedore, the vessel owner’s
duty to warn kicks in because the vessel owner is in the best
position to detect and avoid harm and should be liable if it
does not speak up. See Howlett, 512 U.S. at 101–03. The
vessel owner’s belated argument to limit the inspection to
identifying latent hazards would dilute the turnover duty
envisioned by the case law and would be unworkable in
practice.
Recognizing a duty to inspect as part of the turnover duty
does not expand shipowner liability. The inspection is
constrained by what is reasonable under the circumstances,
and the ultimate measure of whether the vessel owner has
satisfied its turnover duty is whether the vessel owner has
provided a reasonably safe environment for the
longshoremen to carry out their work. The limited nature of
the duty undercuts the vessel owner’s fear that it will be
obligated to scour every inch of the vessel and tear apart all
of the equipment. Because the inquiry turns on
reasonableness, our rule also does not resurrect the strict-
liability unseaworthiness regime that Congress dismantled
by passing § 905(b). See Scindia Steam, 451 U.S. at 168–
69. The duty to inspect falls comfortably within the turnover
duty, and the district court’s instructional clarifier was on the
mark.
B. Turnover Duty Runs to the Longshoremen
The vessel owner’s complaint that Instruction 14
improperly states that the turnover duty is “owe[d] to
longshoremen” was not adequately raised in the district
10 MURRAY V. SOUTHERN ROUTE MARITIME SA
court. Granted, the vessel owner’s counsel objected to
another instruction on this ground and proposed an
instruction regarding the stevedoring company’s duties to
the longshoremen. However, those efforts did not raise the
objection to Instruction 14 with sufficient specificity to
“bring into focus the precise nature of the alleged error.”
Palmer v. Hoffman, 318 U.S. 109, 119 (1943); see also Fed.
R. Civ. P. 51(c)(1). At a minimum, the vessel owner would
have to demonstrate plain error in the instruction to warrant
reversal. See Fed. R. Civ. P. 51(d)(2).
The vessel owner cannot make that showing because the
law supports the proposition that vessel owners owe the
turnover duty to the longshoremen. The relevant statute,
§ 905(b), speaks of “injury to a person covered under this
chapter,” which includes longshoremen. See 33 U.S.C.
§§ 902(1), (3); 905(b). The two leading Supreme Court
cases involve suits brought by longshoremen against vessel
owners and say that “the vessel owes to the stevedore and
his longshoremen employees the duty of exercising due
care.” Scindia Steam, 451 U.S. at 166; see Howlett, 512 U.S.
at 98 (outlining the “three general duties shipowners owe to
longshoremen”). We have framed the inquiry in the same
way: “Although the turnover duty of safe condition is
usually framed in terms of stevedores, it is clear that danger
to longshore workers is an essential part of the inquiry.”
Thomas v. Newton Int’l Enters., 42 F.3d 1266, 1270 n.4 (9th
Cir. 1994).
The stevedoring company’s separate obligation under
33 U.S.C. § 941(a) to provide a “reasonably safe” workplace
for its longshoremen does not somehow override the vessel
owner’s duty to the longshoremen to turn over the ship and
equipment in a safe condition. Those duties happily coexist,
with the vessel owner ensuring a safe ship upon turnover and
MURRAY V. SOUTHERN ROUTE MARITIME SA 11
the stevedoring company ensuring a safe work environment
during cargo operations. See Scindia Steam, 451 U.S. at170–72. The district court properly instructed the jury on the
vessel owner’s turnover duty to longshoremen.
C. Turnover Duty Is Not Continuing
The vessel owner also did not put the district court on
notice about its complaint that Instruction 14 creates a
temporally unrestricted duty to inspect and leaves the vessel
owner open to a virtually unlimited obligation. See Benigni
v. City of Hemet, 879 F.2d 473, 475–76 (9th Cir. 1988)
(noting that “the record indicates that the trial court was not
made aware of any specific concern with the proposed
instructions”). In any event, regardless of the standard of
review, the vessel owner’s challenge cannot be sustained
because Instruction 14 plainly refers to the moment of
turnover and not to a perpetual duty, and other instructions
confirm that limitation.
Instruction 14 itself refers to the vessel owner’s duty
when it “turn[s] over the vessel and its equipment.”
Looking at the surrounding instructions, Instruction 12
summarizes Murray’s theory of the case “that [the vessel
owner was] negligent because the vessel and its equipment
were not turned over in a [safe] condition.” And Instruction
13, which sets forth the elements of Murray’s negligence
claim, states that liability cannot be found unless the vessel
owner “turned over the [vessel] and its equipment in [an
unsafe] condition.” These related instructions make clear
that the district court did not charge a continuing post-
turnover duty.
12 MURRAY V. SOUTHERN ROUTE MARITIME SA
II. Reliability of Dr. Morse’s Testimony Under
Daubert
The district court admitted Murray’s scientific expert,
Dr. Michael Morse, who testified that low-voltage shock can
cause bodily injuries far from the path of the electrical
current. Following a hearing, the court issued an order
detailing why Dr. Morse’s diffuse electrical injury theory
was reliable under Federal Rule of Evidence 702 and
Daubert. We review for abuse of discretion and conclude
that the court performed a sufficiently rigorous evaluation of
Dr. Morse’s theory and did not “reach[] a result that is
illogical, implausible, or without support in inferences that
may be drawn from the record.” United States v. Hinkson,
585 F.3d 1247, 1262 (9th Cir. 2009) (en banc).
The starting point for our analysis is the Supreme Court’s
decision in Daubert, a case that effected a sea change in the
way that courts consider admission of expert testimony.
Before Daubert, courts generally followed the “general
acceptance” test, which focused on recognition in the
relevant field. 509 U.S. at 585–86. The Court in Daubert
rejected that test as too rigid; drawing on Federal Rule of
Evidence 702, the Court constructed a flexible test
examining the “reliability” and “fit” of the offered expert
testimony. See id. at 589–92.
The question of reliability probes “whether the reasoning
or methodology underlying the testimony is scientifically
valid.” Id. at 592–93. To give shape to the inquiry, the Court
identified four factors that may bear on the analysis:
(1) whether the theory can be and has been tested,
(2) whether the theory has been peer reviewed and
published, (3) what the theory’s known or potential error rate
is, and (4) whether the theory enjoys general acceptance in
the applicable scientific community. See id. at 593–94. But
MURRAY V. SOUTHERN ROUTE MARITIME SA 13
the Court was quick to emphasize that the factors are not “a
definitive checklist or test” and that the reliability analysis
remains a malleable one tied to the facts of each case. Id. at
591, 593. Later cases have reiterated that the Daubert
factors are exemplary, not constraining. Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 150 (1999); id. at 159 (Scalia, J.,
concurring) (“[T]he Daubert factors are not holy writ . . . .”).
It is important to remember that the factors are not
“equally applicable (or applicable at all) in every case.”
Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1317
(9th Cir. 1995). Applicability “depend[s] on the nature of
the issue, the expert’s particular expertise, and the subject of
his testimony.” Kumho Tire Co., 526 U.S. at 150 (citation
omitted). A district court may permissibly choose not to
examine factors that are not “reasonable measures of
reliability in a particular case.” Id. at 153.
Because of the fluid and contextual nature of the inquiry,
district courts are vested with “broad latitude” to “decid[e]
how to test an expert’s reliability” and “whether or not [an]
expert’s relevant testimony is reliable.” Id. at 152–53.
District judges play an active and important role as
gatekeepers examining the full picture of the experts’
methodology and preventing shoddy expert testimony and
junk science from reaching the jury. See Daubert, 509 U.S.
at 595–97. That is why we owe the court’s ruling “the
deference that is the hallmark of abuse-of-discretion review”
and may not second-guess its sound judgments. Gen. Elec.
Co. v. Joiner, 522 U.S. 136, 141–43 (1997).
The court did not abuse its discretion here because its
reliability inquiry satisfies these standards and the court
applied the correct legal framework to the facts in a manner
that was neither illogical nor implausible nor contrary to the
record. In its Daubert order, the court first explains that Dr.
14 MURRAY V. SOUTHERN ROUTE MARITIME SA
Morse “has published his findings in peer-reviewed papers.”
“[S]ubmission to the scrutiny of the scientific community”
can be a strong indicator of reliability “because it increases
the likelihood that substantive flaws in methodology will be
detected.” Daubert, 509 U.S. at 593. Dr. Morse’s theory
has been peer-reviewed and published many times over:
Murray’s filings in the district court cite eight articles by Dr.
Morse published in reputable scientific journals. More
generally, Murray submitted a wealth of examples of other
scientists publishing in peer-reviewed journals on the theory
of low-voltage and diffuse electrical injury.
The court then discusses acceptance of Dr. Morse’s
theory by other professionals in the biomedical engineering
field. The court was on solid ground in rejecting the vessel
owner’s contention that “the number of confirmed low-
voltage cases is too small to draw scientifically valid
conclusions and that the minimum voltage required to cause
injury has not yet been established with any degree of
certainty.” Relying on the record, the court specifically
credited Dr. Morse’s response that “over the past two
decades both the immediate and extended symptomology of
low-voltage shock has been recognized,” an observation
grounded in his expertise in electrical injury and years of
research in the field. Also, the record is replete with
examples of articles that explicitly agree with Dr. Morse’s
theory and methodology as well as articles that cite to and
expand on his conclusions. Even if the vessel owner
presented medical sources disagreeing with Dr. Morse, the
district court could properly give weight to the fact that Dr.
Morse’s theory has been acknowledged and credited by
scientists in the community without determining the exact
degree of acceptance. See id. at 594.
MURRAY V. SOUTHERN ROUTE MARITIME SA 15
The court’s analysis does not end there. It evaluates the
genesis of the expert opinion, a factor recognized in the
advisory notes and our case law: Dr. Morse’s theory “w[as]
not developed for purposes of this litigation.” See Fed. R.
Evid. 702 advisory committee’s note to the 2000
amendments; Daubert, 43 F.3d at 1317. Importantly, our
cases call this consideration a “very significant fact” that
“provides important, objective proof that the research
comports with the dictates of good science.” Daubert,
43 F.3d at 1317. The order also goes on to say that “[Dr.
Morse’s] conclusions are reasonable extrapolations from the
patient files reviewed,” tracking another known factor. See
Joiner, 522 U.S. at 146 (“A court may conclude that there is
simply too great an analytical gap between the data and the
opinion proffered.”); see also Fed. R. Evid. 702 advisory
committee’s note to the 2000 amendments (listing
“[w]hether the expert has unjustifiably extrapolated from an
accepted premise to an unfounded conclusion”). Based on
these multiple considerations, the district court concluded
that Dr. Morse’s theory was grounded in science, as
demanded by Daubert. See 509 U.S. at 594 (explaining that
the “overarching subject is the scientific validity”).
The adequacy of the court’s review and the soundness of
its judgment are further underscored by its discretionary
decision to convene a Daubert hearing to explore matters
with the parties. See United States v. Alatorre, 222 F.3d
1098, 1102, 1105 (9th Cir. 2000). At the hearing, the district
judge played a proactive role: he was eager to receive
information from the parties, asking them to submit all
relevant articles and stating that he would “look[] at the
entire body of the case, every document that has been filed
beforehand, and every document that’s filed in this motion
and response.” He gave the attorneys the opportunity to
debate the issues and actively questioned them about the
16 MURRAY V. SOUTHERN ROUTE MARITIME SA
strengths and weaknesses of their positions. Only after this
extensive back-and-forth and consideration of the parties’
papers did the court issue its order admitting Dr. Morse’s
testimony.
It is true that the order does not scrutinize the testability
and error rate factors. Although Daubert does not require a
methodical walkthrough of each factor, the best practice may
be for district courts to at least reference the four Daubert
factors so as to avoid an appeal issue like the one here. See
Black v. Food Lion, Inc., 171 F.3d 308, 311–12 (5th Cir.
1999) (“In the vast majority of cases, the district court first
should decide whether the factors mentioned in Daubert are
appropriate. Once it considers the Daubert factors, the court
then can consider . . . other factors . . . .”). That said, we
emphasize that not every factor is relevant to reliability in
every case and that the significance of each factor is case-
dependent. District courts have broad range to structure the
reliability inquiry and may choose not to comment on factors
that would not inform the analysis.
The district court’s silence about the testability and error
rate factors falls within that broad discretion. The omission
may be attributed in part to the parties’ nearly exclusive
concentration on the other two factors—peer review and
general acceptance. Those issues were teased out at length
in the parties’ motions and at the Daubert hearing, and thus
the court put them front and center in its order assessing Dr.
Morse’s testimony.
Even more forcefully, the district court’s order
highlighted that the subject of Dr. Morse’s testimony was
narrow: he would discuss his theory of low-voltage diffuse
electrical injury, but he would not offer an opinion on
whether Murray’s particular injuries were caused by the low-
voltage shock. That limited focus made many of the vessel
MURRAY V. SOUTHERN ROUTE MARITIME SA 17
owner’s critiques on testability misplaced and made the error
rate a poor measure of reliability in this case. See Kumho
Tire Co., 526 U.S. at 153 (permitting district courts to
discount factors that are not “reasonable measures of
reliability in [the] particular case”). And to the extent that
testability was raised before the district court, it was not
forgotten or wholly ignored—the parties and district judge
spent time at the Daubert hearing exploring whether Dr.
Morse had followed a modified methodology drawn from
one of his published papers. All of this convinces us that the
district court fulfilled its gatekeeping role and did not jump
to a conclusion that is unreasonable or unsupported by
record evidence.
Our view that the district court acted well within its
discretion is in accord with how we have treated other
Daubert challenges. On many occasions, we have found an
abuse of discretion when a district court completely
abdicates its gatekeeping role. See, e.g., City of Pomona v.
SQM N. Am. Corp., No. 15-56062, 2017 WL 3378770, at *7
(9th Cir. Aug. 7, 2017) (explaining that the district court’s
“failure to make any findings regarding the efficacy of [the]
expert opinions constituted an abdication of the district
court’s gatekeeping role, and necessarily an abuse of
discretion”); Pyramid Techs., Inc. v. Hartford Cas. Ins. Co.,
752 F.3d 807, 814 (9th Cir. 2014) (faulting the district court
for “provid[ing] no explanation or analysis for rejecting [the
expert’s] qualifications”); Estate of Barabin v.
AstenJohnson, Inc., 740 F.3d 457, 464 (9th Cir. 2014) (en
banc) (“[T]he district court failed to assume its role as
gatekeeper with respect to [the expert’s] testimony.”);
United States v. Vallejo, 237 F.3d 1008, 1019 (9th Cir. 2001)
(“The district court never clearly articulated why it excluded
this evidence.”). Other times, the analytical error has been
egregious, like when a court would not let a highly qualified
18 MURRAY V. SOUTHERN ROUTE MARITIME SA
and experienced doctor comment that prosthetic elbows
normally do not wear out in eight months. See Primiano v.
Cook, 598 F.3d 558, 562–63, 566 (9th Cir. 2010). In rare
instances, we have even faulted district courts for being too
robotic in applying Daubert. See Wendell v.
GlaxoSmithKline LLC, 858 F.3d 1227, 1233 (9th Cir. 2017)
(“The district court looked too narrowly at each individual
consideration, without taking into account the broader
picture of the experts’ overall methodology.”). None of
those circumstances is applicable here.
At the end of the day, the appropriate way to discredit
Dr. Morse’s theory was through competing evidence and
incisive cross-examination. See Primiano, 598 F.3d at 564(“Shaky but admissible evidence is to be attacked by cross
examination, contrary evidence, and attention to the burden
of proof, not exclusion.”). Indeed, many of the vessel
owner’s complaints focus on statements made by Dr. Morse
at trial. The best medicine was adversarial testing, not
exclusion, and the vessel owner had abundant opportunity to
undermine Dr. Morse’s theory and advance its own position.
We decline the invitation to severely curtail district courts’
discretion to determine reliability under Daubert merely
because the vessel owner’s defense was unsuccessful.
III. Admission of Medical Experts
The district court had a proper basis to admit Murray’s
medical experts, who testified that Murray’s symptoms were
caused by the electrical shock. The vessel owner’s claim
that the experts did not testify on a more-probable-than-not
basis is belied by the record. Before trial, Murray’s experts
confirmed their medical opinion to a reasonable degree of
certainty on a more-probable-than-not basis. And, at trial,
there were numerous instances in which the experts testified
in the same fashion. For example, one of the experts
MURRAY V. SOUTHERN ROUTE MARITIME SA 19
explicitly referenced the relevant standard in attesting that
“[i]t’s my opinion that on a more probable than not basis
[Murray] suffered a brain injury in the accident” and “that
[the brain injury] relate[d] directly to th[e] incident [where
he was electrocuted].”
Similarly, Murray’s experts properly followed the
differential diagnosis framework. Differential diagnosis is
appropriate to reject alternative causes where it is “grounded
in significant clinical experience and examination of medical
records and literature.” Messick v. Novartis Pharm. Corp.,
747 F.3d 1193, 1199 (9th Cir. 2014). Here, the experts who
did not have experience with diffuse electrical injury
reviewed the medical literature. The experts fully explained
how Murray’s symptoms fit with the literature or their
experience and were not pre-existing or unrelated to the
shock. The district court did not abuse its discretion in
admitting the medical testimony.
AFFIRMED.
BEA, Circuit Judge, dissenting in part:
I concur in the panel majority opinion’s conclusions and
reasoning regarding the jury instructions, the scope of the
defendants’ turnover duty, and the admission of the
statements by Murray’s medical experts. I write separately
to dissent on the issue of whether the district court properly
admitted the testimony of Dr. Morse regarding the harms
that can be caused by low voltage electric shocks. Put
simply, the district court failed to exercise properly its
gatekeeping function by permitting Dr. Morse’s testimony
without examining the methodologies by which Dr. Morse
identified the injuries purportedly caused by low voltage
20 MURRAY V. SOUTHERN ROUTE MARITIME SA
shocks, even though Dr. Morse could not explain the causal
mechanism by which such injuries occur.
As explained in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 591–93 (1993), which
interpreted Federal Rule of Evidence 702, the touchstone for
admissibility of testimony by scientific experts is “whether
the reasoning or methodology underlying the testimony is
scientifically valid.” Given the many ways that scientific
expertise is developed and applied, however, the Supreme
Court and this court have recognized that the four factors
articulated in Daubert do not constitute a mandatory
checklist. Id. at 593–95. Rather, each factor should be
addressed to the extent relevant to a particular expert’s
testimony. Id.; see also Kumho Tire Co. v. Carmichael,
526 U.S. 137, 153 (1999), Daubert v. Merrell Dow
Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995).
While an appeals court may not second guess the sound
judgment of the district court on the admissibility of expert
testimony, Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146
(1997), the unreasonable failure to consider a relevant
Daubert factor is an abuse of discretion. See Kumho Tire,
526 U.S. at 152.
In this case, the district court evaluated only two of the
relevant Daubert factors: whether the expert’s research was
peer reviewed and whether it was generally accepted by
other scholars. The district court failed to consider whether
Dr. Morse’s theory can be and has been tested and the error
rate associated with the methodologies he relied upon to
render his opinion. The district court did not offer any
reasons as to why it overlooked these two factors.
First, the relevance of Dr. Morse’s testimony to Murray’s
injuries is unclear. Dr. Morse testified that Murray’s
symptoms were consistent with the low voltage shocks he
MURRAY V. SOUTHERN ROUTE MARITIME SA 21
had studied, but Dr. Morse’s expert report discusses low-
voltage shocks as being those of 110 volts. This was roughly
twice the voltage of the shock experienced by Murray, which
was somewhere between 41 and 58 volts. Expert testimony
should not be admitted if it is not relevant, which this court
has defined as evidence that “logically advance[s] a material
aspect of [a] party’s case.” Estate of Barabin v.
AstenJohnson, Inc., 740 F.3d 457, 463 (9th Cir. 2014)
(citation omitted). In this case, the definition of “low
voltage” relied upon by Dr. Morse (110 volts) differed
significantly from the “low voltage” shock suffered by
Murray (41–58 volts). Such a difference raises serious
doubts about the relevance to Murray’s injuries of Dr.
Morse’s expertise, a doubt which the district court failed to
address in its Daubert order. The district court failed to cite
any record evidence that would allow Dr. Morse’s findings
regarding 110 volt shocks to be extrapolated to the lower
voltage shock experienced by Murray.
Second, the district court does not explain why the
Daubert factors of testability and error rate were not relevant
to evaluating the admissibility of Dr. Morse’s expert
testimony. As Dr. Morse conceded, the mechanism by
which the hypothesized injuries resulting from low voltage
shocks occur is not understood. Such an admission should
reasonably have led the district court to apply greater
scrutiny to the methodology by which Dr. Morse arrived at
his hypothesis about diffuse injury from low voltage shock.
If the mechanism for an injury is not understood, it is that
much more important to ensure the reliability of the methods
by which a correlation between low voltage shocks and
certain injuries was identified. Instead, the district court
ignored the exact Daubert factors that evaluate the rigor of
these methodologies. Namely, the district court failed to
evaluate whether the theory or technique in question “can be
22 MURRAY V. SOUTHERN ROUTE MARITIME SA
(and has been) tested.” Daubert, 509 U.S. at 593. While Dr.
Morse’s hypothesis that low voltage shocks cause certain
injuries can be tested, the record evidence does not establish
that Dr. Morse’s theory was tested either through animal
testing or other controlled experiments. Even if Dr. Morse
is correct that low voltage shocks cause injury, this record
does not establish whether such injuries are commonplace or
extremely rare results of low voltage shock. In addition, the
error rate of the particular research methodologies employed
by Dr. Morse to identify the relationship between low
voltage shocks and certain injuries was not addressed by the
district court. For example, Dr. Morse relies in part on self-
reported internet surveys of people who purportedly suffered
a low voltage shock. See Michael S. Morse et al., Diffuse
Electrical Injury: A Study of 89 Subjects Reporting Long-
Term Symptomatology that Is Remote to the Theoretical
Current Pathway, 51 IEEE Transaction on Biomedical
Engineering 1449 (2004). By not considering the error rate
of such self-reported surveys, the district court ignored the
degree to which the survey respondents may have made up
or imagined their symptoms, may not have actually received
a low voltage electric shock, may have exaggerated their
symptoms, or may have misunderstood the questions posed
in the survey.
Taken together, the fact that Dr. Morse could not explain
the causal mechanism behind the hypothesized relationship
between low voltage shocks and certain injuries means that
the Daubert factors that address the reliability of the
methods – such as error rate and testability – used to identify
this correlation had special importance in this case. By
ignoring these factors, without stating a reasonable basis for
such omissions, the district court’s Daubert analysis in fact
merely evaluated the general acceptance of Dr. Morse’s
theories as demonstrated through certain peer reviewed
MURRAY V. SOUTHERN ROUTE MARITIME SA 23
articles (functionally the same as the Frye test rejected in
Daubert) and failed to evaluate the methodologies
underlying Dr. Morse’s opinion. This was an abuse of
discretion in its gate-keeping function which the deference
owed cannot overcome.
Finally, there are important problems with the analysis
performed by the district court of Daubert factors of peer
review and general acceptance. First, while the district court
placed a great deal of weight on the fact that Dr. Morse’s
research on low voltage shocks had been subject to peer
review, the Supreme Court has explained that the peer
review factor is not alone dispositive and even if an expert’s
research is peer reviewed, a district court must still ensure
that the expert’s opinion is based on a reliable methodology.
Daubert, 509 U.S. at 594 (“[t]he fact of publication (or lack
thereof) in a peer reviewed journal thus will be a relevant,
though not dispositive, consideration”). Moreover, while
the scientific literature in the record does establish that some
experts accepted Dr. Morse’s theories, the record makes
clear that this acceptance did not rise to the level of general
acceptance as a number of scientists criticized Dr. Morse’s
theory as controversial or not persuasive, in part because, as
discussed above, the mechanism by which injuries from low
voltage shocks purportedly occur is not understood. See
Daubert, 509 U.S. at 594 (“a known technique which has
been able to attract only minimal support within the
community…may properly be viewed with skepticism”
(citation omitted)).
Because the causal mechanism by which low voltage
shocks purportedly cause certain injuries is not understood
and because the district court did not evaluate the
methodologies used by Dr. Morse to identify the posited
correlation between low voltage shocks and certain injuries,
24 MURRAY V. SOUTHERN ROUTE MARITIME SA
the district court failed to carry out its gatekeeping function.
Barabin, 740 F.3d at 464 (“Just as the district court cannot
abdicate its role as gatekeeper, so too must it avoid
delegating that role to the jury.”). For these reasons, I
respectfully dissent.