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ACA files amicus brief in U.S. supreme court in petition for cert in accenture, LLP v. Wellogix Inc.

On April 21, ACA filed an amicus brief supporting U.S. Supreme Court petitioner Accenture, in a case arguing that the U.S. Fifth Circuit Court of Appeals erroneously ignored the Daubert guidelines for expert testimony in Accenture, LLP v. Wellogix Inc. Over the past six years through its Amicus Program, ACA has filed briefs in several major appellate cases asking the higher courts to reaffirm the central importance of the trial court's gatekeeping responsibility to screen out speculation in favor of fact, and to bar unreliable scientific evidence advanced by plaintiffs attempting to prove causation.

In at least one state Supreme Court decision--The Sherwin-Williams Cornpany v. Trellvion Gaines--ACA's brief has actually been cited for this important proposition, stressing the "gatekeeper" function obligation of the trial court over expert testimony, both as to its factual assumptions and analysis, and to the reliability of its methodology and conclusions per se.

ACA's brief urged the U.S. Supreme Court to grant certiorari because the lower court ruling "disregards the Court's direction that a trial court must serve as a gatekeeper to prevent the admission of factually unfounded expert testimony." Citing the seminal Daubert decision by the U.S. Supreme Court and its progeny, Joiner and Kumho Tire, which reemphasized the need for judicial scrutiny of the factual foundation of expert testimony, not merely the expert's methodology and framework, ACA stated that that the circuit courts are sharply divided over the trial court's gatekeeping responsibility when confronted with expert testimony premised on unreliable facts, despite the very clear aforementioned rulings.

In the case at hand, the U.S. Fifth Circuit Court of Appeals concluded that the district court did not err in admitting expert testimony that the Petitioner had destroyed all of the Respondent's business value through an alleged theft of a confidential software package, notwithstanding that this opinion testimony had no factual support. The Fifth Circuit also upheld the admission of critical testimony on liability that was centrally premised on two incorrect factual predicates: (1) that information was confidential despite being available on the Respondent's public website and (2) that there was a source code match even though the expert inexplicably compared the wrong software package. In excusing the trial court's abdication of its gatekeeping responsibility to screen out this factually unfounded testimony. the Fifth Circuit reasoned that the Petitioner "had the chance to highlight and dispute these errors through vigorous cross-examination and the presentation of contrary evidence" (alteration and internal quotation marks omitted).

ACA finds it remarkable and noted in its amicus that the Fifth Circuit ruling in Accenture departs so dramatically from these clear legal requirements and from the several other circuits, such as the Second, Third, and Sixth, which have faithfully applied the Supreme Court's rulings in analyzing the factual foundation of expert testimony. As these circuits have explained, the "suggestion that the reasonableness of an expert's reliance on facts or data to form his opinion is somehow an inappropriate inquiry ... ignores the mandate of Daubert that the district court must act as a gatekeeper."

The Fifth Circuit's failure to properly scrutinize the factual underpinnings of the Respondent's software expert in the present case is but one manifestation of a splintering of the Daubert gate that is weakening the Court's protection against factually unfounded expert testimony," stated ACA's amicus in its introduction.

ACA was joined in its brief by three other groups who agree that the U.S. Supreme Court needs to grant a review of this case in order to make crystal clear its edict and clear up the persistent confusion and conflict among circuit courts in this crucial area. These groups are the American Chemistry Council, National Association of Manufacturers, and The Pharmaceutical Research and Manufacturers of America.

Controlling unfounded, speculative "expert" testimony impacts the majority of toxic tort and similar cases in which some companies find themselves as defendants, and can help the dismissal of an unfounded lawsuit up front or result in a determination that no causal relationship has been proven by a plaintiff supporting the allegation(s).

Contact ACA's Tom Graves ( for more information.
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Publication:JCT CoatingsTech
Date:Jun 1, 2014
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