The first case I argued in the Fifth Circuit, I had won summary judgment in a Jones Act case on unseaworthiness, negligence, and M&C.
After I filed for summary judgment based on the plaintiff's testimony in his deposition, the plaintiff's opposition had an updated report from his expert. The expert claimed to have spoken with the plaintiff, and the plaintiff had new allegations (!!) not referenced in his deposition that created a fact question. He wasn't lifting up on one half of a heavy hatch any more; he was lifting up on the entire hatch.
A judge on the panel, while my opponent (appellant) was speaking, said she thought there probably a fact question based on the expert's supplemental report. I swallowed hard, and I got up and argued that it was no different from a sham affidavit: the plaintiff can't change his allegations after a summary judgment motion has been filed against him. To my surprise, the entire panel agreed with me, but for a different reason: they said the expert couldn't rely on inadmissible evidence, which I thought was a close question under Fed. R. Evid. 703.
Right around the same time, Judge Posner, sitting as a district court judge, did something at least a little clever and maybe a little cheeky. He dismissed the parties' experts as unreliable under Daubert. Then, without experts, he said neither party could prove its case and dismissed the case. The sneaky / brilliant part of this is that dismissal of a case / summary judgment are reviewed de novo, but striking experts is reviewed on an abuse of discretion standard. By striking the experts on Daubert and making that the grounds for finding summary judgment, the appellate court has to look at the abuse-of-discretion standard.
Had my case been defeated on a fact question, my plan was to re-urge the motion to strike the plaintiff's expert, then if that would have been successful, re-urge summary judgment.
This is all a lot of prologue for the Fifth Circuit's recent opinion in Stewart v. Capital Safety USA. The plaintiff fell off a rig, and his harness didn't stop him. He filed suit against the harness manufacturer under the LPLA (Louisiana Products Liability Act). The harness manufacturer moved to strike the plaintiff's expert, and the Court found the motion to have merit. As the Fifth Circuit explains, "The court had 'major concerns about [Killingsworth’s] ability to satisfy any of [the Daubert] requirements' because, the court found, Killingsworth 'made wide-ranging, blanket statements . . . without any data or methodology to back [them] up' and 'his theories on product defects and accident causation lack[ed] the reliability and testability that is required.'"
Then, the plaintiff's expert having been struck, the defendant moved for summary judgment. The district court agreed, and so did the Fifth Circuit. Calling the plaintiff/appellant's argument "not pellucid" (ouch), the Fifth Circuit held an expert was required. No expert, no fact question, no trial. The district court followed Posner's path, but where Posner was reversed on appeal, the district court was affirmed.
It will be interesting to see if more courts follow this approach, and if more lawyers suggest it.