Spurned Expert Asks SCOTUS for Non-Party Right to Appeal

David Egilman, whose expert testimony was deemed inadmissible in proceedings involving a consumer’s exposure to the butter-flavoring chemical diacetyl in microwave popcorn, has filed a petition for writ of certiorari (No. 12-697) in the U.S. Supreme Court. He asks, “Whether a nonparty to a district court proceeding has a right to appeal a decision that adversely affects his interest, as the Second, Sixth, and D.C. Circuits hold, or whether, as six other circuit courts hold, the nonparty must intervene or otherwise participate in the district court proceedings to have a right to appeal.” He was apparently retained by a couple seeking to recover for the lung injury sustained by the husband, but the district court found his testimony inadmissible and granted summary judgment for the manufacturers.

According to Egilman’s petition, the district court did not confine itself to a traditional reliability inquiry, but “attacked the character and professionalism of the expert himself. The lower court accused Petitioner of offering ‘misleading’ testimony based on ‘manipulated data.’” He sought to appeal to the Ninth Circuit, “solely for the purpose of striking the offending language from the lower court’s opinion.” The Ninth Circuit determined that “no matter how damaging the effect of the district court’s opinion,” Egilman had no right to challenge it because he was not a participant in the district court proceedings. Emphasizing the circuit court split, Egilman requests that the Court review the Ninth Circuit’s ruling and resolve the conflict.