In Daubert v. Merrell Dow Pharmaceuticals,(1) the United States Supreme Court held that the Federal Rule of Evidence 702, rather than the "general acceptance" standard established by Frye v. United States,(2) controls the admissibility of expert scientific evidence in federal court.(3) That rule allows the admission of expert testimony whenever scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or determining a fact in issue.(4)
On June 22, 1998, the Supreme Court granted certiorari in an Eleventh Circuit case which held that Daubert applies only to scientific expert testimony, i. e., testimony based on application of scientific principles or theories, and not to "non-scientific testimony" based on an expert's personal experience and skills. Carmichael v. Samyang Tire. Inc., 131 F.3d 1433, 1435 (11th Cir. 1997), cert. granted sub nom. Kumho Tire Co., Ltd. v. Carmichael, 118 S.Ct. 2339 (1998). The Eleventh Circuit reversed a district court decision and allowed the testimony of an expert who opined that a defective tire design resulted in an accident involving a minivan. Oral arguments were heard on December 7, 1998. The Supreme Court is now faced with the challenge of determining whether Daubert applies to all expert testimony or whether it instead is limited to scientific fields.
Daubert requires that trial judges consider factors other than whether the purported expert's testimony is based on methodology subject to "general acceptance" in the scientific community, there by allowing the admission of some testimony even if the methodology is not "generally accepted". However, Daubert also requires that all scientific testimony must not only be relevant, but reliable, as a general standard.(5)
To qualify as scientific evidence, an inference, assertion, or opinion must be derived by scientific method. Under Daubert, the trial judge is required to apply a two-step analysis. First the trial judge must determine whether the expert is proposing to testify to actual scientific knowledge. Second, the trial judge must determine whether such knowledge will assist the trier of fact in understanding or determining a fact in issue.(6)
This preliminary Daubert assessment should include consideration of the expert's reasoning or methodology underlying the testimony. The court should consider both the validity of the reasoning or methodology and whether that reasoning or methodology properly can be applied to the facts at issue. The trial judge should then render an opinion of its findings on these issues. It may consider, as the United States Supreme court did in Daubert, the following factors(7) in determining the admissibility of expert testimony:
1. The "testability" of the expert's theory or technique,
2. Whether the theory or technique has been subjected to peer review and publication,
3. The known or potential rate of error, and
4. Whether the methodology is generally accepted in the scientific community.
The proponent of the evidence must demonstrate that the proposition offered is based on sound scientific procedures and the acceptability of the methodology validating the proposition in question.(8) This standard for evidence requires the proponent of the expert testimony to lay a more extensive foundation than was previously required under the Frye rule. The proponent can no longer simply elicit the expert's conclusionary testimony, but must elaborate to some extent about the scientific methodology employed to verify the hypothesis - i.e. the test conducted, the standards employed, and the error rate found.(9)
Before admitting scientific expert testimony, the trial judge must assess both the reliability of the general scientific theory and methodology and/or reliability of the application of the theory and methodology to the facts of the case. Essentially, the test is whether the evidence is "scientific knowledge", whether it will assist the trier of fact, and whether its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury.(10)
Basically, under Daubert(11) the court acts as a gatekeeper with regard to admitting expert testimony and the following are important considerations:
1. The evidence must be scientific (i.e. Grounded in the methods and procedures of science).
2. The evidence must be knowledge (i.e. Is the testimony subject of belief or unsupported speculation?).
3. The evidence must assist the trier of fact by having a valid scientific connection to the pertinent inquiry.
4. If the expert opinion is based on otherwise inadmissible evidence, the opinion is to be admitted only if the facts or data are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences on the subject.
In short, with the advent of Daubert, the judge now has to determine: "Is this good science?" The court must exercise independent judgement regarding the reliability of the science. The proponent of the expert evidence has to demonstrate that it is good evidence, perhaps in spite of what other experts think about it.
The Daubert dichotomy is that it is, in a sense simultaneously more and less restrictive. It allows for more science to come in, (science does not have to be generally accepted) while at the same time it allows less science to come in (the judge must keep out "junk science").
The "gatekeeping" function imposed by Daubert also includes scrutiny of expert qualifications.(12) The initial step involves an analysis of whether experts are actually qualified as experts.(13)
As recognized by the Ninth Circuit on remand in Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1315 (9th Cir), cert. den. 116 S. Ct. 189 (1995) ("Daubert II"), the question of admissibility only arises if it is first established that the individuals whose testimony is being proffered are experts in a particular scientific field.
An expert must also be qualified in the particular field that relates to the substance of the anticipated testimony:
"A witness must be qualified in the specific subject for which his testimony is offered. Just as a lawyer is not by general education and experience qualified to give an expert opinion on every subject of the law, so too a scientist or medical doctor is not presumed to have expert knowledge about every conceivable scientific principle or disease".(14)
Accordingly, even an expert qualified in a particular area, may not testify as to matters outside that area of expertise.(15) Likewise, experts are not entitled to testify as to the methodologies of second-hand reports that are outside the expert's area of qualification.(16)
Notwithstanding the fact that an expert's testimony is based on scientific methods, the evidence must still be excluded if it does not "fit" the issues to be decided.(17) In Daubert II, the Ninth Circuit defines "fit" as requiring that the testimony logically advance a material aspect of the proposing party's case.(18)
Daubert will continue to present a challenge for both litigants and trial judges as they wrestle with determining which experts can testify and what opinions must be excluded. The United States Supreme Court's opinion in the Kumho Tire Co., Ltd, vs. Carmichael, should provide some helpful guidance, at least to the question of which types of experts are subject to Daubert scrutiny.
1. 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993)
2. 293 F. 1013 (D.C. Cir. 1923)
3. Daubert 113 S.Ct. at 2790-2799
7. Daubert 113 S.Ct. at 2796-2799
8. Daubert 1135 S.Ct. at2796-2799
9. Daubert 113 S.Ct. at 2796-2797
11. Daubert 113 S.Ct. at 2794-2799
12. Rice v Cincinnati, N.O. & Pac. RY., 920 F.Supp. 732, 736-37 (E.D. KY 1996); Whiting v. Baston Edison Co., 891 F. Supp. 12 (D. Mass 1995).
13. Casey v Ohio Medical Prods., 877 F.Supp. 1380, 1383 (N.D.. Cal. 1995) (citing Reference Manual on Scientific Evidence); Frosty v. Textron, Inc., 891 F. Supp. 551, 553 (D.Or. 1995).
14. Whiting, 891 F.Supp. at 24; also see Frosty v. Textron, Inc., 891 F. Supp. At 553
15. U.S. v. Roldan-Zapata, 916 F2d 795, 805 (2d Cir. 1990)
16. In re TMI Litig. Cases Consol. II, 911 F. Supp. 775, 829 (M.D. Pa. 1996).