Federal Rule of Evidence 702 reads "if scientific, technical or other specialized knowledge will assist the trier of fact...a witness qualified as an expert...may testify thereto in the form of an opinion." Previously, the U.S. Supreme Court ruled in Daubert v. Merrell Dow Pharmaceuticals, Inc. (citation omitted), that Rule 702 imposes a special obligation upon a trial judge to ensure that expert scientific testimony is not only relevant, but reliable. In the recent case of Kumho Tire Co., Ltd., et al. v. Carmichael, et al. (citation omitted), the Supreme Court ruled that the Daubert "gate keeping" obligation placed on judges applies not only to scientific testimony, but all expert testimony. The Court explained that Rule 702 does not distinguish between scientific, technical, or other specialized knowledge which might be the subject of expert testimony. It also stated that some of the factors listed in Daubert for evaluating the reliability of scientific testimony may be helpful in evaluating the reliability of "experience-based" expert testimony. The Court went on to point out that the essential function of "gate keeping" is to ensure the reliability of expert testimony, even 'experience-based' testimony, and that the trial court should consider the specific Daubert tests where they are reasonable measures of reliability.
Risk Handling Hint: Risk managers are reminded to carefully scrutinize so called 'expert' testimony offered by the plaintiffs' bar. Whether it be doctors, scientists, vocational experts or other witnesses who are purporting to provide 'experience-based' testimony, such evidence may not be admissible due to a lack of reliability. Its exclusion may be the key to a successful defense.