When Sudden Branch Drop Hit Mr. Daubert

Both the legal and insurance communities are faced with many instances in which tree failure, in part but not necessarily in whole, is the center of disputes and claims. ?Limbs falling from trees onto people and roads, highways, and sidewalks are ubiquitous across the nation. ?Large sums of money are litigated and paid, involving branches falling onto people and property.

When the injury is severe enough, or death occurs from falling limbs, the matter is managed by an attorney. ?The search is then on for an arborist expert witness. Typically, the search surrounds the qualifications of the expert who will testify as to how and why the limb failed.

I recently found myself across the dividing line of plaintiff and defendant in one such matter where a limb caused significant injury to a bystander at a well-known commercial tourist attraction.

Plaintiff’s counsel retained an arborist expert witness with a Ph.D. in Arboriculture to oppose me and my opinions. ?Think David and Goliath. ?Often this mismatch appears weighted in favor of the person holding the doctorate degree. ?The reasoning goes that a person with Ph.D. after their name will have more credibility with the jury than someone with an alphabet soup of certifications after their name (e.g., BCMA, CA, and CPCO). ?This is often the case; however, in many situations, it is not the case.?Certainly, an article for another time.

In this instance, and the point of this post, is the focus on the subject matter itself: Sudden Branch Drop (SBD) as it is called. ?We have all heard of this phenomenon. ?We talk about it at the water cooler and in the hallways of conferences. ?And, of course, the characteristics associated with it. ?The reasoning goes that if it looks like a duck, walks like a duck, and quacks like a duck, it must be a duck.

SBD has been reported in England, Australia, South Africa, and the United States from New York to California. ?Well-known and published researchers have weighed in on cause and effect. ?Dr. Alex Shigo, known as the “father of modern arboriculture”, threw his hat into the ring. ?The poster child of all SBD, the Royal Botanic Gardens at Kew in London, has posted a large sign at each entrance warning visitors that the older trees, particularly beech and elm, are liable to shed branches without warning.

In the incident matter, the Ph.D., during his deposition, expressly opined for sixty-four pages that the subject species of tree was an oak with long overextended branches and that it had been a wet spring followed by a dry, hot summer. ?The classic definition of SBD. ?On and on he went. ?Over and over. ?Quite powerful.

His conclusion: It must be sudden branch drop. ?It met the duck definition perfectly.

But while all the researchers had excellent name recognition and credibility, they all had one thing in common: Where’s the research? ?There is no research. ?Look for yourself. ?Lots of pontificating, loads of possibilities, and even a verbal presentation at one of the International Society of Arboriculture annual conferences. ?But no research.

And that is a problem in a court of law.

Now meet Mr. and Mrs. Daubert, parents who claim that the mother’s ingestion of Bendectin caused birth defects in one of their children. ?The trial court granted summary judgment for Merrell Dow Pharmaceuticals based on an affidavit signed by their expert which stated that, in his opinion, Bendectin was not a risk factor in developing birth defects.

Mr. and Mrs. Daubert produced their own expert witness who opined that Bendectin could, in fact, cause birth defects. ?The expert based his opinion on animal studies and unpublished “reanalysis” of previously published studies. ?The trial court ruled that this evidence did not meet the standard for admission of scientific evidence. ?The Court of Appeals affirmed the decision and based their opinion on Frye v. United States, which had been the test for the admissibility of scientific evidence until Daubert came along. ?Frye states that only evidence that is generally accepted in the relevant scientific community is acceptable for testimony.

Daubert changed everything about who may testify and how.

Now, a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion if these conditions have been met:

1.???The expert’s scientific, technical, or specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.

?2.???The testimony is based on sufficient facts or data.

?3.???The testimony is the product of reliable principles and methods.

?4.???The research has been published, peer-reviewed, and gained general acceptance within the relative professional community.

?5.???The expert has reliably applied the principles and methods to the facts of the case.

I carefully researched the documents mentioned as evidence by the Ph.D. expert across from me during his deposition in this matter. ?One such document, which, unbelievably, he had relied upon to form his expert opinion, had the following statement at the very front of the article: “Summer branch shedding by apparently healthy mature trees has not been investigated and definitive information is not available.? The following outlines some theories about summer branch drop."

This case was dismissed before the scheduled trial date after a Daubert challenge was made by the attorney for the defense.

Make sure that your opinions are backed by research and supported by science, not junk science.