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.
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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