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Vol. 73, No. 3, March 2000 |
Guarding the Gates:
Admissibility of Expert Evidence
in Federal and Wisconsin Courts
The Fate of Daubert in Wisconsin
Sample Daubert Expert Deposition
Daubert Expert Deposition Topics
Daubert imposes on trial courts stringent gatekeeping requirements
for admitting expert testimony in federal courts and in those
states adopting Daubert. Wisconsin, not having adopted
Daubert, has dramatically more flexible standards of expert
admissibility. Here's an in-depth look at federal and Wisconsin
rules on expert testimony.
by Robert M. Whitney
xpert
witnesses represent a dilemma for lawyers and judges.
On the one hand, we need them. Almost every case includes at
least one subject of specialized knowledge. On the other hand,
we are uncomfortable with our dependence on them.
"[T]here is a significant danger that a jury may view
the expert as surrounded by an 'aura of infallibility.'
Thus, even where the trier of fact has some basis for questioning
the expert's reliability, it may be disinclined to do so.
In an era where the opinions of professional witnesses are available
for purchase in virtually every field of science and technology,
a jury's unquestioning deference to expert opinion may seriously
jeopardize accurate factfinding."1
The Seventh Circuit has been particularly skeptical of expert
testimony.
"The
professional expert witness who testifies with scant regard for
the truth is an old problem in tort as in other areas of litigation.
Experts are nowadays often the mere paid advocates or partisans
of those who employ and pay them, as much so as the attorneys
who conduct the suit. There is hardly anything, not palpably
absurd on its face, that cannot now be proved by some so-called
experts."2
The U.S. Supreme Court in Daubert
shares these concerns:
"Expert evidence can be both powerful and quite misleading
because of the difficulty in evaluating it."3
For federal cases, the Daubert court's recompense
was to impose specific "gatekeeping" requirements on
trial courts faced with "novel scientific theories."
However, Daubert did not clarify whether the scope of
"gatekeeping" requirements is limited to experts in
"novel science," or whether such requirements encompass
other areas of expert testimony, such as engineering, expertise
based on skill and experience, economics, accounting, or psychology.
After Daubert, the Federal Circuit answers to this question
differed.4
In March 1999 the U.S. Supreme Court, in
Kumho Tire Co.
v. Carmichael, ended the confusion: The reliability standards
of Daubert apply with full force to all fields of expert
testimony in federal trials.5 The
strictures on federal expert testimony do not apply in Wisconsin,
whose courts have explicitly rejected Daubert despite
the fact that Daubert is based on the same rules of evidence
found in the Wisconsin statutes. (The different approach of Wisconsin
and federal courts to expert admissibility is discussed in the
accompanying sidebar, "The Fate of Daubert in Wisconsin.")
For federal courts, the Supreme Court adopted by implication
the broad principle that "[w]hether the expert would opine
on economic valuation, advertising, psychology, or engineering,
application of the Daubert factors is germane to evaluating
whether the expert is a hired gun or a person whose opinion in
the courtroom will withstand the same scrutiny that it would
among his professional peers."6
The gatekeeping responsibilities cannot be avoided: "Daubert
and Rule 702 demand that the district court evaluate the methods,
analysis, and principles relied upon in reaching [an expert]
opinion."7
"While there are certainly times when, given the complexity
of issues or the ferocity of the debate, it may seem expedient
just to let opposing experts do battle at trial, the Supreme
Court has made clear that to do so, without due circumspection,
would be shirking my duty as evidentiary 'gatekeeper'
to the trial process."8
Daubert and Kumho have changed the landscape
of expert testimony. No longer can experts sanctify their opinions
with their own "ipse dixit."9
"[W]e are unprepared to agree that 'it is so if an
expert says it is so.'"10
No longer will qualifications alone allow an expert to tell a
jury anything the expert wants. "If, for instance, an expert
who was well-qualified as an astronomer offered to testify based
on lengthy and careful observation that the sun revolves around
the earth, a court would not be obliged to submit the testimony
to the jury."11 The expert's
opinion must now rise above "subjective belief or unsupported
speculation."12 Most importantly,
the trial court is "responsible for making sure" that
experts adhere to the same standards of "intellectual rigor"
in court as demanded of them in their professional work.13
The Application of Daubert: The Factors
Daubert and its progeny set forth various nonexclusive
guidelines to guard the gates at trial:
- whether the expert's field is a "well-accepted
body of learning," with reasonably well-defined standards;
- whether the expert's theory or technique can be tested
(that is, whether there are standards controlling the technique's
operation) and whether it has been tested;
- whether the theory or technique has been subjected to peer
review and publication;
- the known or potential error rate of the theory or technique;
- general acceptance of the theory or technique within the
field of expertise; and
- whether the theory or technology is used outside a courtroom,
or whether it is limited to litigation.
These factors are not exclusive nor written in stone. Which
factor applies is tied to the facts of a particular case.14 "The test of reliability is
flexible and bends according to the particular circumstances
of the testimony at issue."15
On the other hand, flexibility is not a license to ignore
gatekeeping. The fact that the trial court may choose among different
gatekeeping factors should not be misunderstood to grant "open
season on the admission of expert testimony by permitting courts
discretion to disavow the Daubert factors."16
Well-accepted Body of Learning and the Existence of Standards.
In applying Daubert to a particular case, the court first
must determine whether the expert testimony is grounded in a
field of knowledge offering standards to control the application
of the expert's methodology or technique.17
If an expert denies that his or her field includes a "well-accepted
body of learning and experience," or denies the availability
of such standards, the chances of meeting Daubert diminish.
On the other hand, if the expert admits the existence of such
standards, he or she must meet them.
In Kumho, the Supreme Court recognized that generally
accepted principles and standards are not limited to "pure
science," but extend to the applied sciences such as engineering.18 Economics and accounting also require
application of established principles, subject to Daubert
requirements.19
Further, Daubert includes expertise based on experience
and skill. Such an expert's methodology can be measured
against the standards adopted by professional associations. An
example is fire investigation, usually conducted by municipal
fire marshals, claims adjusters, and independent professional
investigators, who have no formal education in fire investigation,
but who rely entirely on experience and skill. Just as for experts
in other fields, there are well-defined standards for fire investigation
(for example, International Association of Arson Investigators),
which provide evidence by which to challenge expert opinions.
Testability and Test Results. Genuine experts validate
their knowledge through the rigors of testing. Richard Feynman,
a Nobel laureate in physics, described the fundamental role of
testing in science:
"[W]e ... see if it works. If it disagrees with experiment
it is wrong. In that simple statement is the key to science.
It does not make any difference how beautiful your guess is.
It does not make any difference how smart you are, who made the
guess, or what his name is - if it disagrees with experiment
it is wrong."20
The application of that principle to Daubert gatekeeping
was articulated by the Ninth Circuit. Scientific knowledge must
be derived by the scientific method.21
In the real world, testing is not limited to pure science.
Design engineering is a good example. A product design -
industrial machine, automobile gas tank, or toy - represents
a hypothesis that it will achieve a certain level of performance,
cost, and safety. Experimental tests are designed to test that
hypothesis. A theory that an automotive part failed and caused
a particular accident is readily testable.
Beyond engineering, experts' assertions in other technical
fields can be tested against a myriad of professional sources.
For example, there are some 89,000 standards, of which 39,000
are nongovernmental voluntary standards developed by 600 industry-based
organizations.22 The field of application
for Daubert testing is broad.
Peer Review: Have the Expert's Peers Reviewed the
Opinion and Methodology? This factor, to a great extent,
duplicates the "community acceptance" test. Peer review
of the theory, and the testing that purports to validate it,
is a necessary adjunct to "acceptance" by the scientific
community. In many fields, acceptance depends upon publication
and peer scrutiny. However, the usefulness of peer review as
a Daubert measure varies from subject to subject. In some
fields of expertise, experimental research appears in studies
and reports published by federal and state agencies, industry
groups, and independent research bodies. In others (for example,
accident reconstruction, kinematics, analysis of failed products,
and comparisons of design/function), there may be little of use
in professional literature. Frequently, the field may be one
in which professional literature is plentiful, but the question
(for example, economist's lost profits analysis) may be
too mundane for review in the literature.
General Acceptance. Daubert ultimately incorporates
the Frye principle for assessing expert testimony:
"Widespread acceptance can be an important factor in
ruling particular evidence admissible, and 'a known technique
which has been able to attract only minimal support within the
community' may properly be viewed with skepticism."23
The "general acceptance" factor is most useful when
there is some way of measuring it, such as professional literature
or professional standards as discussed above.
Nonjudicial Uses: Whether Purpose of Expert's Methodology/Research
Was Independent of Litigation. This factor is closest to
the underlying goal of Daubert: to make certain that an
expert "employs in the courtroom the same level of intellectual
rigor that characterizes the practice of an expert in the relevant
field."24
That principle found its practical expression in the Ninth
Circuit's mandate that a "very significant" factor
in scrutinizing the expert's methodology is whether it was
developed for research or for litigation.25
"[W]e may not ignore the fact that a scientist's
normal work place is the lab or the field, not the courtroom
or the lawyer's office. That an expert testifies based on
research he has conducted independent of the litigation provides
important, objective proof that the research comports with the
dictates of good science. For one thing, experts whose findings
flow from existing research are less likely to have been biased
toward a particular conclusion by the promise of remuneration."26
If the expert's work could not qualify for publication
outside the courtroom, it should not be "published"
inside the courtroom, unless the proponent of the evidence produces
a "precise" explanation of each step in the expert's
reasoning, methodology, or principles.27
Moreover, each step must be grounded in a specific objective
source in professional literature or professional standards.
This requirement can apply to any subject of expert testimony
- pure science, engineering and applied sciences, "experience
and skill," and the "soft sciences."
Using Daubert in Practice
Timing. Effective use of Daubert requires not
only pre-trial motions but also the tools of discovery.28
The Rule 26 expert report is the starting point for Daubert
challenges. At least 90 days before trial (unless the court orders
otherwise), the attorney must produce, for each expert:
- a "complete statement" of all opinions,
- the "basis and reasons" for each opinion,
- the "data or other information" that the expert
"considered" in forming opinions,
- qualifications,
- all exhibits that will be used to summarize or support the
opinion,
- publications within the last 20 years, and
- cases in which the expert testified, at trial or deposition.
The drafters' comments further underline the magnitude
of the expert report: The report must be "detailed and complete,
stating the testimony the witness is expected to present during
direct examination, together with the reasons therefor."29 Opinions and supporting data developed
after the expert report are at risk of exclusion.
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