Saturday, March 01, 2008

No Daubert gate keeping required when expert relies on scientific manual that the defendant did not dispute. Nebraska Court of Appeals with Judge Sievers dissenting affirms four judgments totalling over $3.5 million from automobile collisions occurring at the intersection of Highway 30 and Newberry Road in Lincoln County. While the State Department of Roads placed stop signs on both sides of the intersection, one flagged, posted a stop ahead sign and an additional sign that the intersection highway was ahead, the Court of Appeals agreed with the Lincoln County District Court the state negligently placed the right side stop sign too far away from the intersection because the sign was out of drivers' cone of vision. The Court of Appeals upholds allowing plaintiffs' expert witnesses to testify that the Department of Roads failed to comply with the State's Traffic Manual because the State failed to object to its own manual. That according to the Court of Appeals majority removed the experts' testifying about the manual from the Court's Daubert gate keeping function. Kirkwood v. State, A-05-1226, A-06-630 , 16 Neb. App. 459The Department of Roads does not challenge (plaintiff’s expert's) qualifications as an expert. The State also does not challenge the scientific validity and reliability of the Manual, upon which expert based his opinions. Rather, the State’s point of contention centers on expert’s interpretation of provisions of the Manual. For that reason, we conclude that no Daubert analysis was necessary. See, e.g., Perry Lumber Co. v. Durable Servs., 271 Neb. 303, 710 N .W.2d 854 (2006) (concluding that no Daubert analysis of methodology was necessary where party asserting error did not challenge scientific validity and reliability of methodology set forth in publication providing guidelines for scientific method of fire investigation). Dissenting Judge Sievers would reverse and dismiss all claims because the drivers' negligence in running the stop signs intervened as causes of the collisions. "Even if the State was negligent in its signing of the intersection, such was not a proximate cause, and that even if it could be considered a proximate cause, (the negligence of the drivers who failed to stop at the sign) combined with the comparative in one of the cases of the (plaintiff who turned in front of one of the drivers who failed to stop) constitute efficient intervening causes."

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