United States: Expert Reports Cannot Be Based Merely On "Common Sense"; That’s Common Sense!

In Knott v. Covert, C.A. No. K13C-05-006-RBY, decided January 15, 2015, the Delaware Superior Court (Young, J.) excluded an expert report for failing to meet the admissibility requirements of Delaware Rule of Evidence 702 because it was based entirely on “common sense” rather than scientific expertise.

This case involved an automobile collision. The defendant, Deborah Covert, moved to exclude the expert report prepared by co-defendant Nationwide Insurance Co.’s expert, William C. Camlin. The Camlin Report disputed defendant Covert’s claim that her car was hit from behind by another unidentified driver, which resulted in a domino effect that ultimately, and unavoidably, caused her car to collide with Plaintiff’s car. According to defendant Covert, the Camlin Report was based on the depositions of the Plaintiff and Covert, the photographs of Plaintiff’s and defendant Covert’s vehicles, and the accident report. Based on these materials, Camlin observed “a slight scuff mark in the approximate center of the rear bumper with slight scratches on the leading edge of the rear bumper in the area of the meeting for the trunk lid.” (Opinion at 5-6.) Further, Camlin’s concluded that the damage to defendant Covert’s rear bumper could not have been caused by vehicular impact. (Opinion at 6.)

Defendant Covert argued that these observations are not “scientific, technical, and/or specialized,” and could easily be grasped by the jury; hence, they are not instructive. The Court agreed, concluding that “Camlin’s note regarding the location of the scuff mark on the rear of the car is something ‘within the common knowledge of the jury,’ and further something the jury is ‘equally competent to form an opinion about.’” (Opinion at 6.) As such, the Court concluded that Camlin’s Report ”cannot be said to assist the trier of fact to understand the issue or to determine a fact in issue” as required by Delaware Rule of Evidence 702. (Id.).

This result is soundly in keeping with D.R.E. 702 and the U.S. Supreme Court’s seminal decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. opinion. The bottom line is, if your expert report is merely saying something that a lay person could have figured out, then it will likely be excluded.

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