Posted on: 10/10/2012
Jeffrey Curran, Gable Gotwals
View Latest Articles
All lawyers are familiar with the Supreme Court's landmark case of Daubert v. Merrell Dow, 509 U.S. 579 (1993). Although sometime pronounced differently depending on the local dialect, most of us know it on a first name basis, like a long-time friend or close relative – "Daubert." It established new standards for admitting expert testimony almost 20 years ago and is now a nearly-mythical case. But what was the case really all about? What makes it so special that it can be recognized all across the litigation community by only its first name? And from whence did it come? And why should you care? If you are ever in Federal Court, in a State that has adopted the Daubert standard or even in a State that has a Daubert/Frye hybrid standard, you need to know what the hubbub is all about.
Over time, we have seen many experts get antsy simply because the opposing side had "challenged" their expertise or thought process with a Daubert motion. This article simply tries to explore the general history of the development of the law on the admissibility of expert testimony and provide a high level view of Rule 702 issues. While general in nature, we hope that this big picture history will provide a deeper understanding of how we have gotten to a place where in almost every case a challenge will be made to the admissibility of expert testimony.
Pre-Daubert
Before Daubert, the area of the admissibility of expert testimony was essentially ruled by the case of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which involved a question of the admissibility of a "systolic blood pressure deception test." This test was a (very) rough predecessor to the polygraph and it attempted to tell whether a person was lying based upon changes (or lack thereof) in a person's systolic pressure. Whether the test worked was the focus of the opinion. In Frye, the D.C. Circuit held that the admissibility of testimony regarding novel scientific evidence was governed on whether it has "gained general acceptance in the particular field in which it belongs."
The role the trial court was to play under this standard was, thus, rather limited, with the thought being to try to keep "pseudoscience" out of the courtroom by way of deferring to those who had already "been there, done that." In essence, Frye attempted to keep the Court out of the equation of acceptance of novel theories. In other words, a judge was to determine whether the proffered evidence was of the type already "generally accepted" by the scientific community. This allowed the proverbial "scientific community" to be the de facto arbiter of what evidence came in and what did not. In isolation, this deference seems like a good idea (and apparently still does to a number of jurisdictions), but it had the potential to keep out some reliable evidence that might not have yet been accepted by the "scientific community." (If you're asking yourself why we keep putting that in quotations, it is because it is somewhat difficult to define with any degree of accuracy - ironic, considering science prides itself by being able to provide absolute answers.) In the fifty years between Frye and Daubert, many circuits had struggled with how to apply Frye to the ever and more rapidly changing worlds of both science and litigation. As is usual before a Supreme Court visitation on an issue, a rather large difference of opinion as to how to best apply Frye swirled around the United States (cue harp music)…
Daubert
…but then along came Daubert. The underlying facts and legal issues in the case are very interesting. It involved a group of minor children that had been born with various birth defects. According to the Plaintiffs, the defects were the result of the ingestion by the children's mothers of the drug Bendectin, which was an anti-nausea drug manufactured by Merrell Dow. After exhaustive discovery on both sides, Merrell Dow moved for summary judgment partially on the grounds that Bendectin had not been shown to cause birth defects. In support, they attached an affidavit from a Dr. Stephen Lamm, a well-respected expert physician and epidemiologist. The Court noted in the majority opinion that Doctor Lamm received his master's and doctor of medicine degrees from the University of Southern California. He also had served as a consultant in birth defect epidemiology for the National Center for Health Statistics and published numerous articles on the magnitude of risk from exposure to various chemical and biological substances. In other words, a really, really smart guy.
Dr. Lamm had reviewed substantial available literature on Bendectin and human birth defects, which consisted of more than 30 published studies involving over 130,000 patients. Not one of these studies had found Bendectin to be a "human teratogen" (something capable of causing malformations). Accordingly, Doctor Lamm concluded that "maternal use of Bendectin during the first trimester of pregnancy has not been shown to be a risk factor for human birth defects." Daubert, supra, 590 U.S. 582. The Plaintiffs responded with affidavits from not one, not two, but eight separate experts, all of whom were also very well-credentialed. The Court went to some length to present the impressive nature of the credentials of the Plaintiff's experts as well. They were also very, very smart people. But, in the end, eight was in fact not enough.
Plaintiff's eight experts opined that Bendectin could cause birth defects. However, their conclusions were not based on any published study of Bendectin's effects on humans, but rather upon (1) in vitro and in vivo animal studies that found a link between Bendectin and malformations; (2) pharmacological studies of the chemical structure of Bendectin that purported to show similarities between the structure of the drug and that of other substances known to cause birth defects, and (3) the "re-analysis" of previously-published epidemiological human statistical studies.
The District Court granted summary judgment to Merrell Dow, stating that scientific evidence is admissible only if the principle upon which it is based is "sufficiently established to have general acceptance in the field to which it belongs." Daubert v. Merrell Dow Pharmaceuticals, 727 F. Supp. 570, 572 (SD Cal. 1989), quoting United States v. Kilgus, 571 F. 2d 508, 510 (CA9 1978). The Ninth Circuit affirmed. 951 F.2d 1128 (1991). Citing Frye, the Ninth Circuit court stated that "expert opinion based on a scientific technique is inadmissible unless the technique is 'generally accepted' as reliable in the relevant scientific community." The court further stated that expert opinion "based on a methodology that diverges "significantly from the procedures accepted by recognized authorities in the field ... cannot be shown to be 'generally accepted as a reliable technique.'" Id., at 1129-1130.
The Supreme Court granted certiorari. The Court started its analysis by noting that the Frye decision was short and "citation-free," and that Frye had been decided 70 years before Daubert, as well as many years before the imposition of the Federal Rules, particularly Rule 702. The Court noted that Rule 702 mentions no requirement of "general acceptance," and, thus, the Rule displaced Frye. This displacement, however, did not mean that such evidence should be freely admitted. "The Rules place appropriate limits on the admissibility of purportedly scientific evidence by assigning to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." 509 U.S. at 579-580.
While most know this, the "progeny" to Daubert consists of two main cases and a whole host of others. The two main cases, which with Daubert form a kind of legal trinity, are: Kumho Tire v. Carmichael, 526 U.S. 137 (1999) and General Electric Co. v. Joiner, 522 U.S. 136 (1997). Both of these cases are discussed below. Daubert and its progeny have put out three basic tests for the admissibility of expert testimony. First, the expert must be qualified and possess special expertise. Such would seem to indicate there is such a thing as "plain" expertise, which really wouldn't be such outstanding knowledge or competency to have, would it? One can hardly be an expert in something that everyone else already knows. Second, the testimony must be reliable (meaning the expert's opinion must be based on scientific methods and procedures as opposed to subjective belief or unsupported speculation). Third, the opinions must "fit" the case, i.e., must be relevant and assist the trier of fact. See also Calhoun v. Yamaha Motor Corp. U.S.A., 350 F.3d 316, 321 (3rd Cir. 2003).
The courts examine a variety of factors to determine the second prong of reliability and methodology regarding expert testimony, including the following: a. whether the expert's method contains a testable hypothesis; b. the method's known or potential rate of error; c. whether the method is generally accepted (in a bit of a nod to Frye); and d. whether the method can be objectively reviewed by the expert's peers. Id.
Courts will also consider the existence and maintenance of standards and controls, the relationship of the expert's technique to other established reliable methods, the expert's qualifications, and whether the method has been utilized in non-judicial applications. Including these last few, consideration into the normal checklist would make the clever acronym "t-e-a-r" (please tell us you already noticed) into something harder to remember. Potentially, that is why some who write about the case leave out these final considerations.
Kumho Tire
And, just when lawyers started to think maybe Daubert's application would be limited to scientific testimony, the Court added to the scrutiny list detailed review of "technical" and "other specialized" knowledge via the case of Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Kumho was a product liability case involving the alleged defective blow out of a tire and personal injuries and a death. Plaintiffs' tire expert opined that a defect in the tire's manufacture or design caused the blowout. This opinion was questionable because the tire's thread depth had been worn down from 11/32 to 3/32 and the tire had two previous punctures that apparently were inadequately repaired. In essence, based on the expert looking at and feeling the tire and the theory that in the absence of at least two of four physical findings of "tire abuse," the expert was of the opinion that the tire failure was caused by a defect. Kumho moved to exclude the expert's testimony on the ground that his methodology failed to satisfy Federal Rule of Evidence 702. The District Court granted the Motion and gave judgment to Kumho.
The issue before the Supreme Court in Kumho was whether Daubert was limited to just scientific testimony or whether it extended as well to technical and specialized knowledge as contemplated by Rule 702. Frankly, in hindsight, one wonders why anyone would question whether Daubert would apply to all the kinds of evidence mentioned in Rule 702. The argument appears to stem from the concurring opinion of Justice Rehnquist in Daubert, who raised just such a possible distinction. Rehnquist's discussion in Daubert was rendered rhetorical, however, when the issue actually made it back to the Supreme Court. When having the chance to actually consider the question, the justices answered with a resounding "YES." In doing so, the Court noted that application of Daubert is to be flexible and adaptable: "We conclude that Daubert's general holding setting forth the trial judge's general 'gatekeeping' obligation applies not only to testimony based on 'scientific' knowledge, but also to testimony based on 'technical' and 'other specialized' knowledge. See Fed. Rule Evid. 702. We also conclude that a trial court may consider one or more of the more specific facts that Daubert mentioned when doing so will help determine that testimony's reliability. But, as the Court stated in Daubert, the test of reliability is 'flexible,' and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination." Id. at p. 537.
This means that under Daubert/Kumho, an expert must submit his or her qualifications, opinions, bases of his opinions and methodology to some serious scrutiny prior to testimony in trial if the opposing side argues any flaws exist in the expert's work or opinions. Whether they exist or not, it is almost a rite of passage that the expert and attorney will have to respond to arguments from the opposition that flaws exist in the expert's presentation.
General Electric v. Joiner
And, lest you think we forgot, we also have to talk about General Electric Co. v. Joiner, 522 U.S. 136 (1997). Mr. Joiner had worked for GE for a number of years and had developed small-cell carcinoma, which he blamed on exposure to PCB's in the course and scope of his employment. Plaintiff's expert relied on reports relating to the study of the exposure of mice to large-level doses of PCB's. Upon motion of GE, the district court disallowed the expert's evidence and granted summary judgment to GE. However, the Eleventh Circuit reversed, holding that Daubert, via its repudiation of Frye, meant that the trial courts were less of a gate-keeper and that repudiation of the "general acceptance" tests meant a less-restrictive view of such evidence.
The Supreme Court, in one of the shortest opinions in recent memory, wasted no time in overruling the Eleventh Circuit for reading too much into the alleged repudiation of Frye. The Court noted that not only was the proffered testimony and opinion based on animal studies (here, mice) but that the mice were subjected to a much larger level of PCB's and were also injected directly into the stomach with the chemicals. The Plaintiff's exposure was in a much smaller level, and there was no "injection" into the Plaintiff (he was exposed through external contact). Also, the Supreme Court noted that the type of cancer in the animals was different than that of Mr. Joiner. The Court noted that the standard of review of the trial court's evidentiary decision is an abuse of discretion and then quickly reversed the Eleventh Circuit upholding the trial court's ruling that the proffered opinion was inadmissible. While Daubert has been used in many instances as a more restrictive scrutiny of expert testimony, in Joiner, the Supreme Court did not necessarily agree: "Thus, while the Federal Rules of Evidence allow district courts to admit a somewhat broader range of scientific testimony than would have been admissible under Frye, they leave in place the "gatekeeper" role of the trial judge in screening such evidence." General Electric Co. v. Joiner, 522 U.S. at 142. In the end, whether the Daubert standard results in making it more difficult to admit expert testimony than it was under Frye depends on the issues and the application of the factors. There is no bright line comparison. In short, however, Daubert is clearly a more detailed and different evaluation than was previously endorsed under Frye.
So 20 years later what does it all mean?
Such a question is easier posed than answered, mostly because it depends on where your case is filed. If the case is in Federal Court, then the answer is relatively easy - apply Daubert/Kumho. These days, Joiner doesn't even enter the equation anymore. I guess it's not really a trilogy after all. Of course, there are enough variations in the application of Daubert that you still need to research the issues thoroughly with each particular jurisdiction and judge within it. However, if you are in State Court, it is hit-or-miss.
A number - nay, a veritable plethora - of states do not follow Daubert. If you are not in a Daubert state, then you may think you follow Frye. But it is not so easily answered. A number of states purport to follow a blend of both Daubert and Frye, so even in those cases you still have to consider Daubert.
What does it mean to "follow Daubert"?
The first step is to figure out whether the opinion even "makes the grade." Ask yourself the following questions to make sure the expert's background/qualifications and methodology will survive the "Daubert gauntlet": (1) Is the expert qualified in the specific area of testimony? (2) Is the testimony reliable in that it has followed the scientific method or a methodical procedure? (3) Can the theory be tested (or has it already been tested)? (4) Is the methodology generally accepted? (5) Is the theory or can the findings be objectively verified through peer review and have they? (6) Are there sufficient standards and controls over the method? (7) Does the methodology/technique relate to established and reliable methods? (8) Are the expert's qualifications and experience significant? (9) Has the methodology been used outside of litigation? (10) Do the opinions actually fit the case and will they assist the jury? (11) What is the potential rate of error?
If the answers to questions (1) through (10) are "yes" and question (11) about the "rate of error" is answered with a resounding "low," then the expert will likely be allowed to testify. If not, then there are grounds to consider a challenge the opposing expert and expect a challenge of your own expert.
The second step of the analysis is knowing when to move to exclude the opposing party's expert. So, when do you make your "Daubert" move? One should not move to exclude anybody's testimony until you have discovered everything you can about the expert, their opinions and their methodologies. One has to make sure the expert is "locked in" and procedurally there is no room to wiggle. One should not make such a motion while discovery and expert discovery is still ongoing as the risk exists that the opposition can "clean up" any apparent flaw. Thus, Daubert or Rule 702 motions to strike or exclude typically are filed just prior to trial. Most court scheduling orders provide for a specific deadline to do file such motions. Filing any earlier then the final deadlines provided by the court typically gains no procedural advantage or strategic leverage.
Rules to Follow
Rules 103 and 104 are the two foundational Rules to consider. Rule 103 states that you cannot predicate an error on an evidentiary ruling unless you preserve it properly. For example, let us say you have made a Motion in Limine but the judge ruled against you. Since by nature, Motions in Limine are advisory only, you will have to come back in at the time you would have offered the evidence during the trial and make an offer of proof for the record (at least by the Federal Rules, anyway). The lesson to be learned with this Rule is do not forget the foundational basics, or there will be nothing to appeal from.
Rule 104 provides for the court's actual "gatekeeping" role in all things evidentiary. In fact the very first sentence in the rule states that "preliminary questions concerning the qualifications of a person to be a witness… shall be determined by the court."
But, it is Rule 702 where you will find language and decisions that will actually be of some specific guidance to you in the area of admissibility of expert testimony. Not surprisingly, the name of this Rule is "Testimony by Experts." Rule 702 was amended in 2000 as a result of Daubert and incorporated most of the basics of Daubert and Kumho. For cases in Federal Court, remember the words of the immortal Brad Hamilton in "Fast Times at Ridgemont High": "learn it, know it, live it" when it comes to the admission of expert testimony.
Conclusion
In the end, the case known by a single name made an exponential sea change of law with continual ripple effects in how attorneys must prepare their case and their experts to withstand the challenges of its holdings. Gone are the days when singular issues or pieces of expert testimony were challenged by Motion in Limine or through pure cross examination. Daubert ushered in a new game where almost all expertise, expert testimony and expert opinions are challenged with written motions requiring detailed and specific written responses, hearings and, in some instances, lengthy evidentiary hearings on the propriety of the expert being able to testify. Many cases are now won by an effective motion to strike or lost on an ineffective response. At times, Daubert has literally resulted in an expert trial before the trial and before the Court instead of the before the jury. Depending on whose ox is being gored, we must either impress the Court that the expert is spouting junk or evidence to the Court that the expert has followed the scientific method in getting to his/her conclusions. With Daubert rulings being reviewed only on an abuse of discretion standard, Courts hold significant power over the admissibility of expert testimony and, thus, the potential outcome of cases. As trial attorneys, we must accordingly be well-versed in the "science." More importantly, we must not only know the law and its detailed application to the particular expert discipline in issue but we must also know the tendencies of the particular court and what level of scrutiny that the particular court will apply in the Daubert proceedings. This knowledge is sometimes difficult to find by pure research alone.
So as you can see, whether you pronounce its name as rhyming with "Robert," "Sherbet," or "Our Bear," this one-named wonder has made and will continue to make its mark for many years to come. And that's no junk science.
This paper is an edited excerpt with permission from Expert Witnesses: Motor Vehicle and Accident Reconstruction Cases, 4th Ed. (Curran, Jeff and Meaders, Kurt) Copyright (c) 2011 Thomson Reuters. For more information about this book, please visit www.west.thomson.com. To place an order, contact 1-800-344-5009.)
Jeff Curran is Of Counsel with the Oklahoma City office of GableGotwals. Jeff's practice focuses on product liability defense, insurance matters and commercial litigation. He also maintains an entertainment law practice, representing motion picture production companies, musicians and recording companies in contract negotiation, licensing and related areas as well as intellectual property litigation. Jeff is the current Chair of the Defense Research Institute's Automotive Specialized Litigation Group and a member of several other DRI Committees. He is also the former Vice-chair of the DRI's Automotive SLG, as well as the former Chair and newsletter editor of the Automobile Law Committee of the ABA's Tort, Trial and Insurance Practice Section. He is also a Member of the National Fire Protection Association, and the National Academy of Recording Arts and Sciences.
Jeff is also the author of Expert Witnesses: Automobile and Accident Reconstruction Cases, a Thomson Reuters publication now in its Fourth edition. He has also written on various other subjects in litigation and commercial litigation, and has written and presented several lectures on professionalism and ethics.
Jeff is also member of the International Association of Defense Counsel, the National Academy of Recording Arts and Sciences, the National Fire Protection Association, the ABA's Products, General Liability and Consumer Law Committee, Insurance Coverage Litigation Committee, Intellectual Property Committee, Litigation Committee, and the Entertainment and Sports Law Forum. He is also a member of the DRI's Product Liability Committee, Insurance Law Committee and Trucking Law Committee.
Jeff is admitted to practice in all state courts in Oklahoma, as well as the United States District Courts for the Western, Northern and Eastern District, the United States District Court for Colorado and the Tenth Circuit Court of Appeals.