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Arrow International2/12/2003
nk v. Hagaman, 79 Ark. App. 88, 84 S.W.3d 66 (2002). Allen's testimony in this case is not novel in any respect. Additionally, the Daubert and Kumho Tire opinions recognize that not all expert testimony is subject to the Daubert analysis. The inquiry to be made by the trial court is a flexible one, not a rigid one. See Daubert, 509 U.S. at 594- 95; Regions Bank v. Hagaman, supra. Further, the Daubert factors neither necessarily nor exclusively apply to all experts or in every case. Kumho Tire, 526 U.S. at 141. The law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination. Id. at 142; Regions Bank v. Hagaman, supra. Moreover, the factors identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony. Kumho at 150.
Dr. Allen's testimony in this case was based on experience and observations rather than methodology, and his opinion was not buttressed by scientific or technical testing or analysis. We recognize that a Daubert inquiry may, in some instances, help to evaluate the reliability of experience-based testimony, Kumho at 151; however, a Daubert inquiry into the reliability of Dr. Allen's testimony was not warranted in this particular case. Nevertheless, we note that the trial court conducted a reliability inquiry, out of the jury's presence, to determine Allen's experience and familiarity with blood flow and clotting. We conclude that the trial court did not abuse its discretion in admitting Dr. Allen's rebuttal testimony.
The next issue concerns the trial court's admission of thirty-six Medical Device Reports (MDRs), generated by Arrow pursuant to federal law. Such reports record incidents of medical device malfunction and contain short but detailed descriptions of what happened in each case. Appellee initially planned to introduce approximately sixty reports of incidents that occurred between 1991 and 2000 in which a patient died or suffered serious injury when a sheath introducer disconnected from a valve in an Arrow two-piece PSI. The trial judge ruled that some of the MDRs contained incidents that were not substantially similar to the incident in this case, and he excluded some of the MDRs. However, he allowed the introduction of thirty-six prior incidents that occurred between 1992 and 1997. His ruling was based in part on the testimony of Dr. Margaret Kuykendall that a substantial similarity existed between the information contained in the thirty-six MDRs and the incident that occurred in this case.
The general rule with respect to the admissibility of evidence of similar occurrences is that they are admissible only upon a showing that the events arose out of the same or substantially similar circumstances. Ford Motor Co. v. Massey, 313 Ark. 345, 855 S.W.2d 897 (1993); Houston Gen. Ins. Co. v. Arkansas La. Gas Co., 267 Ark. 544, 592 S.W.2d 445 (1980). The burden rests on the party offering the evidence to prove that the necessary similarity of conditions exists. Massey, supra. The relevance of such evidence is within the trial judge's discretion, subject to reversal only if an abuse of discretion is demonstrated. Id.
Arrow argues that appellee did not meet her burden of proving that the thirty-six incidents reflected in the MDRs were substantially similar. However, Arrow does not tell us how the thirty-six incidents differ from the one in the case at bar. Although it was appellee's burden below to prove the admissibility of the prior occurrences, it is Arrow's burden on appeal to demonstrate reversible error. Collins v. Hinton, supra. In an
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