Tumlinson v. Advanced Micro Devices, Inc.
Tumlinson v. Advanced Micro Devices, Inc.
Opinion of the Court
In this action, a group of Texas plaintiffs allege that a corporation exposed two employees to chemicals that caused two of the employees’ children to suffer from birth defects. On appeal, the plaintiffs challenge a Superior Court judge’s application of Texas substantive law and the resulting exclusion of expert testimony. Under Delaware law, which incorporates the United States Supreme Court’s holding in Daubert v. Merrell Dow Pharmaceuticals, Inc.,
I. FACTUAL AND PROCEDURAL HISTORY
Defendant-Appellee Advanced Micro Devices, Inc., (AMD) is a Delaware corpo
On March 16, 2010, AMD filed a Motion to Apply Texas Law to Issues of Liability and Damages.
Tumlinson intended to offer Dr. Linda Frazier’s expert opinion that Wendolyn’s and Anthony’s exposure to chemicals while they were AMD employees caused Jake’s and Paris’s birth defects.
II. STANDARD OF REVIEW
Choice of law is a legal question that we review de novo.
III. ANALYSIS
A. Choice of Law
Before deciding whether the expert testimony is admissible, we must determine which state’s law governs the analysis. The Superior Court judge ruled that Texas substantive law and Delaware procedural law (including evidentiary law) apply.
“As a general rule, the law of the forum governs procedural matters,”
Our case law clearly states that an appellant’s opening brief must “fully state the grounds for appeal, as well as the arguments and supporting authorities on each issue or claim of reversible error.”
While Tumlinson may have intended to argue that Delaware substantive law should apply, either based on the “most significant relationship” test or based on a false conflict that does not require a choice-of-law analysis, she pursued neither theory in her Opening Briefs argument section. Instead, her argument describes the Restatement’s “most significant relationship” factors that weigh in California’s favor.
We next address Tumlinson’s argument that California substantive law should apply. Tumlinson argued in her Superior Court briefing on AMD’s motion to apply Texas law that “[u]nder a [c]hoice of [l]aw [a]nalysis,” the Superior Court judge “must [a]pply Delaware [flaw,”
“Under Supreme Court Rule 8, a party may not raise new arguments on appeal.”
B. Evidentiary Admissibility
Delaware Rule of Evidence 702 addresses expert opinion testimony.
Daubert establishes that in order to be reliable, “[proposed testimony must be supported by appropriate validation— i.e., ‘good grounds,’ based on what is known. In short, the requirement that an expert’s testimony pertain to ‘scientific knowledge’ establishes a standard of evidentiary reliability,”
Because admissibility is a procedural question, the Superior Court judge should have analyzed both relevance and reliability under Delaware law. It appears the judge concluded that the expert’s testimony was not relevant under Delaware procedural law (and thereby not admissible under Delaware law) because he considered it insufficient as a matter of Texas law,
We have not addressed whether substantive law concerning evidentiary sufficiency can be subsumed under a relevance analysis when a trial judge determines admissibility under Delaware law. Before we reach that analysis, it would be helpful to have the trial judge’s view of the expert testimony’s reliability under Delaware law. Because expert opinion testimony is admissible “only if it is both relevant and reliable,”
IV. CONCLUSION
Therefore, we AFFIRM in part and REMAND with instructions to address
. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
. Because this is a limited remand opinion, we similarly limit the factual and procedural
. We will refer to parties by their first names for clarity.
. We will collectively refer to all Plaintiff-Appellants in the singular for convenience.
. Defendant Advanced Micro Devices, Inc.'s - Motion to Apply Texas Law to Issues of Liability and Damages, Tumlinson I, 2010 WL 8250792 (Del.Super. July 23, 2010) (C.A. No. 08C-07-106).
. Tumlinson I, 2010 WL 8250792, at *3.
. Tumlinson also intended to offer several other experts’ opinions, but those experts based their testimony on the same body of scientific evidence upon which Tumlinson relied. See Tumlinson v. Advanced Micro Devices, Inc. (Tumlinson III), C.A. No. 08C-07-106, at 4 (Del.Super. Nov. 29, 2012).
. Defendant Advanced Micro Devices, Inc.’s Motion to Exclude Opinion Testimony of Linda Frazier, M.D., M.P.H., Tumlinson II, 2012 WL 1415777 (Del.Super. Jan. 6, 2012) (C.A. No. 08C-07-106).
. Advanced Micro Devices, Inc.'s Memorandum of Law in Support of Its Motion to Exclude Opinion Testimony of Linda Frazier, M.D., M.P.H., Tumlinson II, 2012 WL 1415777 (C.A. No. 08C-07-106).
. Tumlinson II, 2012 WL 1415777, at *1, *7.
. Tumlinson v. Advanced Micro Devices, Inc. (Tumlinson IV), 36 A.3d 351, 2012 WL 540945, at *1 (Del. Feb. 21, 2012) (ORDER).
. Tumlinson III, C.A. No. 08C-07-106, at 4.
. Cavalier Oil Corp. v. Harnett, 564 A.2d 1137, 1141 (Del. 1989) (citation omitted).
. M.G. Bancorporation, Inc. v. Le Beau, 737 A.2d 513, 522 (Del. 1999) (citations omitted).
. Id. (citations omitted).
. Tumlinson I, 2010 WL 8250792, at *3 (Del.Super. July 23, 2010).
. Opening Br. 2, 28-30 (noting that "[c]hoice of law rules point to the application of Delaware or California law” and discussing the factors impacting the analysis).
. Chaplake Hldgs., LTD. v. Chrysler Corp., 766 A.2d 1, 5 (Del. 2001) (citations omitted).
. Restatement (Second) of Conflict of Laws § 138 (1971).
. Travelers Indem. Co. v. Lake, 594 A.2d 38, 47 (Del. 1991) (rejecting the traditional lex loci analysis and adopting the Restatement's approach).
. Restatement (Second) of Conflict of Laws § 145(1) (1971). Section 6 requires us to analyze the following factors:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
Id. § 6(2).
. Id. § 145(2).
. Id. § 146; see also Clinton v. Enter. Rent-A-Car Co., 977 A.2d 892, 895 (Del. 2009) (citations omitted).
. Opening Br. 2.
. Opening Br. 28 n. 40.
. See SIGA Techs., Inc. v. PharmAthene, Inc., 67 A.3d 330, 342 n. 36 (Del. 2013) (citing Deuley v. DynCorp Int'l, Inc., 8 A.3d 1156, 1161 (Del. 2010)).
. Turnbull ex rel. Turnbull v. Fink, 644 A.2d 1322, 1324 (Del. 1994) (citing Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993)).
. Supr. Ct. R. 14(b)(vi)(A)(3); Roca v. E.I. du Pont de Nemours & Co., 842 A.2d 1238, 1242 (Del. 2004) (citation omitted).
. Murphy, 632 A.2d at 1152 n. 2 (citing Supr. Ct. R. 14(d)).
. Roca, 842 A.2d at 1242 (citing Murphy, 632 A.2d at 1152; Turnbull, 644 A.2d at 1324).
. See Opening Br. 28-29.
. Id. at 16.
. Id. at 30-35.
. Memorandum of Law in Opposition to Defendant Advanced Micro Devices Inc.'s Motion to Apply Texas Law to Liability and Damages at 30, Tumlinson I, 2010 WL 8250792 (Del.Super. July 23, 2010) (C.A. No. 08C-07-106) (emphasis omitted).
. Id. at 30-33. Tumlinson made this analysis assuming that Texas’s jurisprudence concerning admissibility of expert proof is substantive Texas law that conflicts with Delaware law. Id. at 30.
. Id. at 31.
. Id. at 33; see also id. at 32 ("One would think that Texas, which now must bear the responsibility at taxpayers’ expense of taking care of these children, would have an interest in applying the jurisprudence of Delaware, if that were to result in providing redress to its wronged children. It would also be difficult for AMD to persuade this Court that Texas has a greater interest than Delaware in ensuring the integrity of civil judicial proceedings -These interests are the same in Delaware, Texas[,] or California. The application of Delaware law, especially where it is in all important respects the same as the law of Texas and California, accomplishes these goals of predictability and fair and efficient administration of justice.”).
. Scion Breckenridge Managing Member, LLC v. ASB Allegiance Real Estate Fund, 68 A.3d 665, 678 (Del. 2013) (citing Riedel v. ICI Ams. Inc., 968 A.2d 17, 23-25 (Del. 2009)).
. Id. at 679 (citing Supr. Ct. R. 8; Smith v. Del. State Univ., 47 A.3d 472, 479 (Del. 2012)).
. We note that even if we did reach the issue, which we explicitly do not, the injuries occurred in Texas, Tumlinson and Ontiveros worked in Texas, and their children were born and raised in Texas. It is not clear that Tumlinson’s arguments — (1) AMD is a global company headquartered in California, (2) its California-based CEO signed an environmental health and safety policy statement, (3) the alleged "misconduct producing [the] injuries emanated from high-level decisions made in California,” (4) applying Texas law "needlessly burdened” the Superior Court judge, and (5) Texas has an interest in seeing another state's law apply (to ease its health care costs) if Texas law would shield a California-based corporation from liability in Delaware — demonstrate that California has a more significant interest in the case than Texas. See Opening Br. 28-30.
. D.R.E. 702 (“If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”).
. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
. 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).
. M.G. Bancorporation, Inc. v. Le Beau, 737 A.2d 513, 522 (Del. 1999).
. Daubert, 509 U.S. at 597, 113 S.Ct. 2786.
. Id. at 590 n. 9, 113 S.Ct. 2786.
. Id. at 591, 113 S.Ct. 2786 (citations omitted) (internal quotation marks omitted). The Court used the following example to describe relevancy:
The consideration has been aptly described ... as one of "fit." “Fit” is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes. The study of the phases of the moon, for example, may provide valid scientific "knowledge” about whether a certain night was dark, and if darkness is a fact in issue, the knowledge will assist the trier of fact. However (absent creditable grounds supporting such a link), evidence that the moon was full on a certain night will not assist the trier of fact in determining whether an individual was unusually likely to have behaved irrationally on that night. Rule 702’s "helpfulness” standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.
Id. at 591-92, 113 S.Ct. 2786 (citations omitted).
. Tumlinson II, 2012 WL 1415777, at *2-3 (Del.Super. Jan. 6, 2012) ("Thus, the same expert testimony might be accepted as reliable in Delaware, and found unreliable in Texas. This conflict is resolved by Daubert’s other prong — relevance. An expert’s opinion is relevant only if it bears on the proof of a contested fact and it may be considered as evidence of that contested fact. An opinion that is deemed reliable under Delaware law is irrelevant if that opinion will not be given any evidentiary value because it is deemed unreliable under Texas law. In the end, then, Texas law on the reliability of an expert opinion governs the Daubert analysis under Delaware law. Put another way, AMD cannot be found liable in Delaware for a tort allegedly committed in Texas against Texans, based on evidence that is unreliable, insufficient^] and inadmissible in Texas. Delaware's evidentia-ry standards do not create an easier way around the burden of proof in Texas.”).
. 953 S.W.2d 706 (Tex. 1997).
. 347 S.W.3d 256 (Tex. 2011).
. See Daubert, 509 U.S. at 596, 113 S.Ct. 2786 ("Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence. Additionally, in the event the trial court concludes that the scintilla of evidence presented supporting a position is insufficient to allow a reasonable juror to conclude that the position more likely than not is true, the court remains free to direct a judgment and likewise to grant summary judgment.” (citations omitted)).
. Compare In re Joint E. & S. Dist. Asbestos Litig., 52 F.3d 1124, 1132 (2d Cir. 1995) ("The 'admissibility' and ‘sufficiency’ of scientific evidence necessitate different inquiries and involve different stakes. Admissibility entails a threshold inquiry over whether a certain piece of evidence ought to be admitted at trial.... This case is about sufficiency, not admissibility. A sufficiency inquiry, which asks whether the collective weight of a litigant’s evidence is adequate to present a jury question, lies further down the litigational road.”), and Lofton v. McNeil Consumer & Specialty Pharms., 682 F.Supp.2d 662, 669 (N.D.Tex. 2010) ("Havner does not control a federal court’s determination of admissibility pursuant to Rule 702 and Daubert.”), and In re Ephedra Prods. Liab. Litig., 2007 WL 2947451, at *1 (S.D.N.Y. Oct. 9, 2007) ("Sufficiency and relevancy are not the same, and there is no conceptual reason to include the former within the 'relevancy prong’ of Rule 702.”), and Taylor v. Bristol-Myers Squibb Co., 2004 WL 2058796, at *1 (N.D.Tex. Sept. 15, 2004) (ORDER) ("Havner does not clearly establish substantive state law that would control the admissibility of expert testimony or scientific evidence in a federal court sitting in diversity.”), with Wells v. SmithKline Beecham Corp., 601 F.3d 375, 381 (5th Cir. 2010) (affirming the federal district court judge's grant of summary judgment on the alternative basis that the testimony was inadmissible under Daubert, and noting that "[i]n finding the evidence scientifically unreliable! — land thus insufficient to prove causation under Texas law[ — ]it follows that the experts’ testimony was also deficient under Daubert given its overlap with Texas questions of scientific sufficiency”), and Burton v. Wyeth-Ayerst Labs. Div. of Am. Home Prods. Corp., 513 F.Supp.2d 719, 730 n. 12 (N.D.Tex. 2007) (citations omitted) ("Havner’s standards are substantive, not procedural requirements.”), and Cano v. Everest Minerals Corp., 362 F.Supp.2d 814, 822 (W.D.Tex. 2005) (citations omitted) ("[Wjhether expert testimony will assist the trier of fact is governed in part by whether the testimony is relevant to the plaintiff’s burden of proof under the substantive law, and testimony that will not assist the trier of fact by advancing an element of the plaintiff’s case should be excluded.”). Secondary sources also recognize this tension. See, e.g., Bobak Razavi, Admissible Expert Testimony and Summary Judgment: Reconciling Celotex and Daubert After Kochert, 29 J. Legal Med. 307, 336-40 (2008); Harvey Brown, Procedural Issues Under Daubert, 36 Hous. L.Rev. 1133, 1153-58 (1999).
.Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (emphasis added).
Reference
- Full Case Name
- Wendolyn TUMLINSON, Jake Albert Tumlinson, Jillveh Ontiveros and Paris Ontiveros, by her natural mother and next friend Jillveh Ontiveros, Below v. ADVANCED MICRO DEVICES, INC., Below
- Cited By
- 18 cases
- Status
- Published