In a post-Daubert world, courts considering the admissibility of expert testimony must become somewhat expert themselves in the subject matter of the testimony. To use a simple analogy, judges must not only be able to call the balls and strikes of litigation, they must also understand something about pitching. It is well settled now that courts must determine whether expert testimony offered used valid reasoning or methods, and is a valid application of those methods or that reasoning. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 592 (1993). No longer are there per se admissibility rules--courts must consider such matters as whether the theory can be and has been tested, the degree of acceptance of the methods or subject matter in the field, peer review, and known or potential error rates. Id. at 593-94. Clearly, few judges will have significant expertise in any substantive scientific area. Accordingly, judges must learn enough about the field in which an expert proposes to testify to permit the judge to evaluate the admissibility of the testimony. This article briefly explores some aspects of the methods available to judges to do so.
Federal Rule of Evidence 706 provides, in relevant part, as follows:
(a) Appointment. The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with clerk, or at a conference in which the parties shall have the opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness. . . .
(c) Disclosure of Appointment. In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness.
Fed. R. Evid. 706.
The purpose of the rule is clear from the Advisory Committee's Note. The committee recognized that, while the parties will present expert witnesses who can, through their testimony, advise and educate the court, the ability to "shop" for experts with favorable testimony to offer, the "venality" of some experts, and the (asserted) reluctance of true experts to sully themselves by participating in litigation raise serious problems and concerns. See Fed. R. Evid. 706 advisory committee note. At bottom, however, is the concern that the court will not receive reliable information from either side's experts that would enable it to evaluate the admissibility of the expert testimony. See, e.g., Eastern Air Lines, Inc. v. McDonnell Douglas Corp., 532 F.2d 957, 1000 (5th Cir. 1976) ("Because a court-appointed witness would be unconcerned with either promoting or attacking a particular estimate of Eastern's damages, he could provide an objective insight into the $24.5 million difference of opinion between the parties' experts."). A court appointed expert also can assist the trial court in evaluating the reliability of expert testimony for purposes of determining admissibility. See, e.g., Joiner v. General Elec. Co., 78 F.3d 524, 535 (11th Cir. 1996) (Birch, C.J., concurring) (observing that appointment of a Rule 706 expert can greatly assist the trial court in the discharge of its duties under Daubert), cert. granted, 117 S. Ct. 1243 (1997).
Rule 706 is not a radical change in the law. It is well recognized that a trial judge may appoint an expert of his choosing, and there is no requirement that such an expert testify under oath at all. See Reilly v. United States, 863 F.2d 149, 154-56 & n.4 (1st Cir. 1988); Bullard v. General Elec. Co., 348 F.2d 985, 990 (4th Cir. 1965) (citing Danville Tobacco Ass'n v. Bryant-Buckner Assocs., Inc., 333 F.2d 202, 206 (4th Cir. 1964), cert. denied, 387 U.S. 907 (1967)). Indeed, Rule 706 cuts back somewhat on that inherent ability of the trial court, in that it expressly contemplates that the parties be notified in advance of the court's intent to appoint its own expert witness, have the opportunity to depose him in advance of trial, call him to testify at trial, and cross-examine him there. Fed. R. Evid. 706(a). None of those safeguards are available if the court appoints a back-room technical advisor pursuant to its common law authority.
Another significant aspect of Rule 706 is the ability to advise the jury that this expert was brought by the court, and not by either litigant, which raises some interesting concerns. On the one hand, the court's expert may be treated with extra deference. On the other hand, if it is unclear who sponsored the witness, the jury may not know how to weigh and assess the witness's testimony; presumably counsel will remind the jury, either through questions or argument, that the parties' experts are employed by the parties, and are thus inclined to agree with their employer's view of the world.
The theoretical benefits of a Rule 706 expert are clear. Given that judges may be unable to determine the validity of expert testimony, and, as a result of system of compensating experts for their time, there is virtually no position that some expert somewhere will not take, if the court bases its decisions as to the validity of expert testimony solely on the presentations of the experts presented by the parties, it may not be able to make sound decisions as to admissibility. In theory, a court appointed expert would avoid those problems.
[A] court expert serves not only as a witness on whose opinion the Court can rely for assistance, but also as both a second set of ears for the court and a teacher who, unaffected by his having been called as a witness by one side or the other, can explain the technical significance of the evidence presented.
Leesona Corp. v. Varta Batteries, Inc., 522 F. Supp. 1304, 1312 (S.D.N.Y. 1981). The court's expert could be neutral, as neither litigant sought him out and neither litigant will compensate him. The presence of such a witness may encourage the parties' witnesses to be more circumspect in the positions they take. See Eastern Air Lines, 532 F.2d at 1000.
On the other hand, some practical problems with the court appointing an expert witness are also evident. The fact that the court has appointed the expert may give that expert's opinion extra weight in the eyes of the jury. One response to that is for the court to exercise its discretion not to reveal that the witness is the court's expert. See 29 Charles Wright & Victor Gold, Federal Practice & Procedure § 6302, at 456 & n.15 (1997). Another problem is that no expert is truly "neutral" -- all have opinions, interests, and biases, and there is no guarantee that the court will have any ability greater than that of a party to select an honest and reliable expert. Id. at 456 & n.16.
The rule itself provides some safeguards against the problems. The ability to depose the court's witness, for example, enables the parties to investigate the court expert's opinions and the bases for them, and to challenge his assertions if appropriate. Id. at 457 & n.19 (citing In re Joint E. & S. Dists. Asbestos Litig., 151 F.R.D. 540, 544 (S.D.N.Y. 1993)). The parties also reserve the right to cross-examine the expert at trial, and to call their own experts who presumably will either bolster or refute the conclusions of the court's expert. See generally Leesona Corp. v. Varta Batteries, Inc., 522 F. Supp. 1304, 1311 (S.D.N.Y. 1981) (appointing a Rule 706 expert and ordering that he testify after the parties' experts had testified and after hearing their testimony).
The court's appointment of an expert, particularly one that might serve to educate the court as to the admissibility of the testimony of the parties' expert witnesses, raises a tricky chicken-and-egg problem as well. Presumably, in a post-Daubert world, the court must assess whether the court-appointed expert's testimony is itself admissible. But if that testimony were necessary to evaluate the parties' witnesses, it presumably is no less necessary to assist the court in evaluating its own witnesses' testimony. The court's expert must be evaluated to the same degree and on the same standards as any other expert. See, e.g., Students of California Sch. for the Blind v. Honig, 736 F.2d 538, 549 (9th Cir. 1984), vacated on other grounds, 471 U.S. 148 (1985). Rule 706 also contains no standards as to when the court must appoint a witness under its authority. It is thus left to the court's discretion, and the instances in which courts have done so generally appear to be when the testimony concerns complex or esoteric subjects. See 29 Charles Wright & Victor Gold, Federal Practice & Procedure § 6304, at 465-67 (1997) (citing cases).
Thus, a court seeking to faithfully discharge its duties under Daubert might well seek to appoint an expert. There is, however, no guarantee that the court's expert will be any better at facilitating the court's efforts in that regard, and the appointment may further and unnecessarily complicate a case.
For more information on the issues raised in this article, please contact John B. Isbister at 410/752-9714.