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:

1. whether the expert's field is a "well-accepted body of learning," with reasonably well-defined standards;
2. 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;
3. whether the theory or technique has been subjected to peer review and publication;
4. the known or potential error rate of the theory or technique;
5. general acceptance of the theory or technique within the field of expertise; and
6. 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.

The U.S. Supreme Court has called upon trial courts and litigants to resolve the issue of expert witness qualifications at the outset, pursuant to the provisions for hearings on admissibility in Fed. R. Evid. 104(a). Offensive reliance upon the factors enunciated in Daubert in motion practice, whether through motions in limine, Rule 104(a) hearings, or motions for summary judgment, can prevent questionable testimony from reaching jurors. Using Daubert affirmatively in motion practice may force trial judges to evaluate scientific testimony early in the litigation.

On the other hand, for tactical reasons, the Daubert motion should be made after the Rule 26 report is complete and discovery is closed, to foreclose the expert from returning to the drawing board to correct Daubert defects. Much of the timing decision on Daubert motions will depend upon circumstances peculiar to the local jurisdiction. For example, litigation strategy would differ in front of a trial judge who strictly enforces the requirement that the Rule 26 expert report be complete and final as opposed to practice in front of a judge who would liberally allow a party to supplement its expert report with new facts, methodologies, or conclusions.

Appellate Review. The standard of review of a district court's ruling on admissibility is for abuse of discretion. The abuse of discretion standard applies when reviewing a trial judge's ruling on the reliability of an expert's methodology or the reliability of an expert's ultimate conclusion.³⁰ However, that "is not discretion to abandon the gatekeeping function. It is not discretion to perform the function inadequately."³¹

Separate Hearing Requirement. In Daubert, the Ninth Circuit held that "where the opposing party thus raises a material dispute as to the admissibility of expert scientific evidence, the district court must hold an in limine hearing (a so-called Daubert hearing) to consider the conflicting evidence and make findings about the soundness and reliability of the methodology employed by the scientific experts."³² In Kumho, the issue of a mandatory hearing was never raised. However, the Supreme Court approved a trial court decision on affidavits, depositions, and expert reports, with no separate hearing.

Notably, a trial court is not limited under Daubert to consider evidence that will be admissible at trial. Evidence that may be considered includes discovery, offers of proof, affidavits, and stipulations.³³

Burden of Proof on Daubert Hearing. Arguably, the trial court does not apply Daubert factors until evidence is presented "sufficiently" calling an expert's testimony into question.³⁴ The party challenging the expert has the burden of challenging the testimony "by a preponderance of proof."³⁵

Once a prima facie case of admissibility is made, "[t]he opposing party would then be entitled to challenge that showing. This it could do by presenting evidence (including expert testimony) that the proposing party's expert employed unsound methodology or failed to assiduously follow an otherwise sound protocol."³⁶

Depositions Under Daubert. By clarifying that the scope of Daubert includes all expert testimony, the Supreme Court in Kumho has greatly increased the responsibilities of federal trial courts to screen that evidence. The results for counsel are an opportunity and a risk: an opportunity to dramatically influence the outcome of litigation with a well-prepared Daubert deposition and motion, and a risk to lose the opportunity to reach the jury with an expert who is not chosen and prepared for the Daubert attack. (See, "Sample Daubert Expert Deposition" sidebar.)

Conclusion

Robert M. Whitney, U.W. 1974, is of counsel in Lawton & Cates S.C., Madison. He is a litigator who concentrates his practice in products liability, general commercial disputes, and accounting malpractice.

Daubert created a potent weapon for attacking expert testimony in fields of novel science, such as epidemiology. Kumho confirmed the application of Daubert gatekeeping to expert testimony in all fields of expertise, whether applied science, technical skill, "experience and training," or the "soft sciences." The trial court's gatekeeping responsibilities render vulnerable expert pronouncements which have until now been a routine part of trials. Counsel now must ensure that his or her experts' methodology and conclusions will be supported by affirmative evidence that they are based on well-accepted principles, testable and successfully tested, generally accepted in the field, used for purposes other than litigation, and that they are a product of the same level of intellectual rigor that experts in the field bring to their nonlitigation endeavors. The result will have a real effect on the care taken by experts and the counsel who call them, and upon the impact of expert testimony in federal courts and those of the states adopting Daubert.

The other consequence of the broad new federal gatekeeping requirements is the gulf that they create between the use of expert testimony in Wisconsin trial courts and the federal courts. Those with a choice between federal or state court must make a thorough analysis of the importance of expert testimony, and the potential vulnerability of the experts on each side of the case.

Endnotes

¹ Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 6262, pp. 182-83 (1997).

² Albers v. Church of the Nazarene, 698 F.2d 852, 858 (7th Cir. 1983) (internal quotations omitted) (quoting Keegan v. Minneapolis & St. Lovig R.R. Co., 76 Minn. 90, 95, 78 N.W. 965, 966 (1899)).

³ Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579, 595, (1993) (Daubert I); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 1169 (1999).

⁴ For example, in Tyus v. Urban Search Management, 102 F.3d 256 (7th Cir. 1996), cert. denied, 520 U.S. 1251 (1997), the Seventh Circuit applied the Daubert framework to the testimony of social scientists in a discrimination action based on the Fair Housing Act. On the other hand, the Tenth Circuit refused to apply Daubert to the testimony of a mechanical engineer in an automobile roof crush case, because the court viewed the gatekeeping requirements to exclude opinions based on "experience and training."

⁵ Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 1169 (1999).

⁶ Watkins v. Telsmith Inc., 121 F.3d 984, 990 (5th Cir. 1997).

⁷ Id. at 991.

⁸ Hartwell v. Danek Med. Inc., 47 F. Supp. 2d 703, 711 (W.D. Va. 1999).

⁹ General Elec. Co. v. Joiner, 522 U.S. 136, 138 (1997).

¹⁰ Alevromagiros v. Hechinger Co., 993 F.2d 417, 421 (4th Cir. 1993).

¹¹ Target Mkt. Publ'g Inc. v. ADVO Inc., 136 F.3d 1139, 1143 (7th Cir. 1998).

¹² General Electric, 522 U.S. at 140.

¹³ Braun v. Lorillard Inc., 84 F.3d 230, 234 (7th Cir.), cert. denied, 519 U.S. 992 (1996).

¹⁴ Kumho at 1175.

¹⁵ Tanner v. Westbrook, 174 F.3d 542, 547 (5th Cir. 1999).

¹⁶ Black v. Food Lion Inc., 171 F.3d 308, 311 (5th Cir. 1999).

¹⁷ Kumho, 119 S. Ct. at 1175.

¹⁸ 195 S. Ct. at 1176; see also Officer v. Teledyne Republic/Sprague, 870 F. Supp. 408, 410 (D. Mass. 1994) ("[I]n fields like design engineering ... general acceptance is the norm, not the exception").

¹⁹ See, e.g., Frymire-Brinati v. KPMG Peat Marwick, 2 F.3d 183, 186-87 (7th Cir. 1993) (holding trial court had improperly admitted accountant's testimony); De Jager Constr. Inc. v. Schleininger, 938 F. Supp. 446, 455 (W.D. Mich. 1996) ("[T]his Court's decision ... is based upon [the expert's] modus operandi of making unsupported assertions and projections, [and] of deliberately ignoring documents and figures which would strike a certified public accountant in the face").

²⁰ John & Mary Gribbin, Richard Feynman: A Life in Science VII (1997).

²¹ Daubert I at 590.

²² C.C. Phillip Colver and John C. Colver, Standards and Their Importance in Products Litigation; 34 For Def., 14, 15 (April 1992).

²³ Daubert I, 509 U.S. at 594.

²⁴ Kumho at 1176 (emphasis added).

²⁵ Daubert v. Merrell Dow Pharms. Inc., 43 F.3d 1311, 1317 (9th Cir.) cert. denied, 516 U.S. 869 (1995) (Daubert II).

²⁶ Daubert II at 1317.

²⁷ Id. at 1319.

²⁸ The Western District of Wisconsin has adopted the full expert report requirement of Rule 26. The Eastern District opted out of Rule 26 but requires a report disclosing "the substance of expert testimony" including a statement of all opinions to be expressed and the basis and reasons thereof, the data relied upon, the qualifications of the witness, and a listing of any other cases in which the expert testified in the last four years (District Rule 7.03(d)).

²⁹ Advisory Committee Notes, Wright and Miller, Federal Practice and Procedure, Appendices, at 359.

³⁰ Kumho, 119 S. Ct. at 1176.

³¹ Id. at 1179 (Scalia, O'Connor and Thomas, concurring).

³² Daubert II, 43 F.3d at 1319 n.10.

³³ See United States v. Downing, 753 F.2d 1224, affd., 780 F.2d 1017 (3d Cir. 1985).

³⁴ Kumho, 119 S. Ct. at 1175.

³⁵ Daubert I, 509 U.S. at 593; see also Tanner v. Westbrook, 174 F.3d 542 (5th Cir. 1999) ("The proponent [of the expert testimony] need not prove to the judge that the expert's testimony is correct, but she must prove by a preponderance of the evidence that the testimony is reliable").

³⁶ Daubert II, 43 F.3d at 1319, n.10.

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