Supreme Court Watch: Kumho Tire Co., Ltd. v. Carmichael : Bolstering Safeguards against Non-Scientific Experts

When the United States Supreme Court rendered its decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), many in the defense bar hailed it as a victory against "junk science." Left unanswered by Daubert, however, was the question of whether its four general criteria for determining the reliability of expert scientific testimony also applied to non-scientific experts. In Kumho Tire Co., Ltd. v. Carmichael, 119 S. Ct. 1167, 1999 U.S. Lexis 2189 (1999), the Supreme Court resolved this issue, holding that the Daubert factors may be applied to the testimony of engineers and other experts who are not scientists. For employers, this decision provides a potential bulwark against the testimony of so-called human resource experts concerning the adequacy of anti-discrimination and anti-harassment policies and procedures.

The Daubert Factors

In Daubert, the Supreme Court identified four factors for trial judges to consider in analyzing "whether the reasoning or methodology underlying the [expert scientific] testimony is scientifically valid" to assist the trier of fact in accordance with Rule 702 of the Federal Rules of Evidence. Those factors are whether the expert’s theory:

• can be and has been tested;
• has been subjected to peer review and publication;
• has a known or potential rate of error; and
• is generally accepted in the relevant scientific community.

Although the court identified four factors, it observed that other criteria also might be relevant in evaluating the reliability of scientific testimony. Consequently, the court cautioned that the four factors do not constitute a "definitive checklist or test." Daubert, 509 U.S. at 593.

Following Daubert, the federal appeals courts split on the issue of how, or whether, the four Daubert factors should apply to the proposed testimony of non-scientific experts. A number of circuits concluded that the factors should apply without modification, while others opined that only some of the factors were relevant to non-scientific testimony. The Supreme Court granted certiorari in Kumho Tire to resolve this uncertainty.

Kumho Tire

The plaintiffs in Kumho Tire were the survivors of an automobile accident that occurred after a tire on the family’s minivan failed. The Carmichaels brought a product liability claim against the maker and distributor of the tire, claiming that it was defective. At trial, the plaintiffs planned to offer the expert testimony of Dennis Carlson, a mechanical engineer and professed "tire failure analyst" who had worked for many years at Michelin America, Inc. Based upon his inspection of the tire and his conclusion that there was insufficient physical evidence of tire abuse, Carlson was expected to testify that the blowout was caused by a defect in the tire’s design or manufacture. Kumho Tire moved to exclude Carlson’s testimony, arguing that the methodology he utilized in assessing the cause of the tire failure was unreliable.

The district court granted the motion to exclude, finding that Carlson’s methodology did not satisfy any of the four Daubert factors for reliability. On appeal, the Eleventh Circuit reversed. The circuit court found that Carlson’s testimony was based upon his personal experience and skill with failed tires, not upon the application of scientific principles. Because the Court deemed the testimony to be "non-scientific," it concluded that the Daubert factors did not apply.

In an 8-1 decision, the Supreme Court reversed. Writing for the Court, Justice Breyer observed that Daubert’s emphasis on the role that trial judges must play as "gatekeepers" of the reliability of expert testimony applied with equal force whether the testimony was "scientific" or "non-scientific." Kumho Tire, 1999 U.S. Lexis 2189, at *18-*21. Since the four Daubert factors provide a framework to assess reliability, the Court held that a trial judge faced with the question of whether to admit the testimony of a non-scientific expert "may consider one or more of the more specific factors that Daubert mentioned when doing so will help determine that testimony’s reliability." Id. at *9. Applying these principles, the Court held that the trial judge did not abuse his discretion when he barred Carlson from testifying, as the judge reasonably doubted whether the engineer’s methodology could reliably determine the cause of the tire’s failure. Id. at *28.

The expertise at issue in Kumho Tire was that of an engineer and the court did not elaborate on the impact its decision might have on the admissibility of testimony by other non-scientific experts. ("[W]e can neither rule out, nor rule in, for all cases and for all times the applicability of the factors mentioned in Daubert nor can we now do so for subsets of cases by category of expert or by kind of evidence. Too much depends upon the particular circumstances of the particular case at issue." Id. at *23.). At a minimum, however, the decision appears to provide lower courts with a basis for excluding testimony by non-traditional experts. Judges who may have previously feared reversal when considering whether to exclude some of the more "innovative" experts offered by the plaintiffs’ bar may take comfort in the Supreme Court’s reiteration of its previous ruling that the decision to exclude expert testimony is reviewed for abuse of discretion. Id. at *36. Indeed, in his concurrence in Kumho Tire, Justice Scalia, joined by Justices O’Connor and Thomas, opined that failure to apply one or more of the Daubert factors to certain non-scientific testimony "may be unreasonable, and hence an abuse of discretion." Id. at *37.

Kestenbaum

In employment litigation, Kumho Tire may prove to be very good news for employers, particularly when confronted with the proposed testimony of a so-called human resource expert hired to render an opinion regarding the adequacy of a company’s anti-discrimination policies and procedures. One of the more notable examples of the impact such testimony can have can be found in Kestenbaum v. Pennzoil Co., 766 P.2d 280 (1988). In that case, an anonymous letter was sent to company officials accusing the plaintiff of sexual harassment, illegal conduct and mismanagement in the performance of his job duties. Id. at 281. Pennzoil conducted an investigation of the allegations, which consisted almost entirely of interviews with present and former female employees. Based upon these interviews, the company prepared a written report of the evidence it had accumulated. The report did not evaluate the credibility of those interviewed, nor did it differentiate between first-hand knowledge and attributed hearsay. Kestenbaum denied the allegations. Although he was given the opportunity to comment about the employees who had been interviewed and to name witnesses who might speak on his behalf, the witnesses he identified were not interviewed by the company. Id. at 281-82.

Kestenbaum was terminated at the conclusion of the investigation. He subsequently filed suit for breach of an implied contract, alleging that he was fired without just cause. At trial, Kestenbaum presented an expert who testified that Pennzoil’s investigators "did not observe the standards of good investigative practice and who identified numerous deficiencies in the investigation." Id. at 288. The jury awarded damages to the plaintiff in the amount of $500,000. Pennzoil appealed, and the Supreme Court of New Mexico affirmed the decision.

Notwithstanding the less than ideal investigation in Kastenbaum, one cannot help but wonder how great a role the expert’s testimony played in the substantial verdict for the plaintiff. More important for employers is the broader question of whether the testimony of such human resources "experts" can pass muster under Daubert. It is arguable that, as a group, the Daubert factors do not lend themselves to use in relation to this type of expertise. However, it certainly would be appropriate to question whether an alleged expert’s opinion regarding the elements of a proper investigation enjoys "general acceptance" within a relevant community of experts or whether it has ever been subject to peer review. Indeed, it would be incongruous to suggest that because it is more difficult to verify, innovative expert testimony should endure less judicial scrutiny than traditional scientific testimony, whose reliability is more regularly tested outside the courtroom.

While the Supreme Court’s ruling in Kumho Tire is a welcome development for employers, it is too early to assess how lower courts will apply Kumho Tire in these situations and whether Justice Scalia’s admonition will be heeded. Still, the Supreme Court has now recognized that the use of "junk science" in litigation should be scrutinized and restricted, a fact that employers and their attorneys have long known.