After seventy years of service, Frye v United States, 54 US App D C 46, 293 F 1013 (1923) and the “generally accepted in the scientific community” analysis for admissibility of scientific testimony, began to create some silly results. At PsychLaw.net we know that as recently as the early 1990’s, attorneys and “experts” too often succeeded in manipulating the “general acceptance” admissibility rules. As a result, all sorts of “science” began to find its way into the courts. Predicating admissibility on “acceptance” motivated numerous “experts” and attorneys to manipulate the concept of scientific and/or professional “community.” For example, dowsers, who use divining rods to locate water or minerals underground, can join a professional organization, the American Society of Dowsers. This Society boasts 68 chapters and holds an annual conference that, in 1989, lasted five days. Credentialed dowsers proffered as expert witnesses therefore claim “general acceptance” for their opinions from a professional “community.”[1]
In June 1993, however, the issue of scientific evidence in the courts took on a new and important dimension. In an opinion marked as much by its brevity as by its impact, Mr. Justice Blackmun brought the foundational requirements for science in the courts into the 21st century.
In Daubert v Merrell Dow Pharmaceuticals Inc., 509 U S 579, 113 S Ct 2786, 125 L Ed 2d 469, (1993), the Court held that: “…the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” 113 S Ct at 2795; 125 L Ed 2d at 480.
Because experts are permitted wide latitude in their opinions and are not required to base their pronouncements on first-hand knowledge, the Court required that “the expert’s opinion must have a reliable basis in the knowledge and experience of his discipline”. 113 S Ct at 2796; 125 L Ed 2d at 482. In this analysis, courts are required to excuse proposed experts who do not have a grasp of the “knowledge and experience of [their] discipline.”
At PsychLaw.net we teach that compared to lay witnesses, experts purport to offer testimony that is scientific. Justice Blackmun indicated that by using the term “scientific,” the witness implies a “grounding in the methods and procedures of science.” Id. 113 S Ct at 2795; 125 L Ed 2d at 481. The word “knowledge,” the Court instructed, “connotes more than subjective belief or unsupported speculation.” Id. The Court made it clear that: “…in order to qualify as ‘scientific knowledge’, an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation – i.e., ‘good grounds’, based on what is known.” Id.113 S Ct at 2795; 125 L Ed 2d at 481
Basing its rule as to admissibility on reasoning and methodology, the Court quoted from a learned treatise and offered: “Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry.” Id. 509 U S 579, 113 S Ct at 2796; 125 L Ed 2d at 483.
The Court instructed that there is now a “Key Question” which must be answered and that is: “…whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested…” emphasis added Id. 509 U S 579, 113 S Ct at 2796; 125 L Ed 2d at 482-483.
The Court’s instruction to the trial courts was that when “expert”, “scientific” testimony is offered: “…the trial judge must determine at the outset, pursuant to Rule 104 (a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Id. 509 U S 579, 113 S Ct at 2796; 125 L Ed 2d at 482
Emphasizing that the “focus….must be solely on principles and methodology” 509 U S 579, 113 S Ct at 2797; 125 L Ed 2d at 484, the Court’s analysis cites to United States v Smith, 869 F2d 348, 353-354 (CA7 1989) and informs that “error rate” in the predictions and techniques espoused in the opinions of the experts must be considered. Id. 509 U S 579, S Ct at 2797; 125 L Ed 2d at 483.
Grounding its admissibility analysis in the principles and methodology of science, the Court notes: “….that scientists typically distinguish between ‘validity’ (does the principle support what it purports to show?) and ‘reliability’ (does application of the principle produce consistent results?)…..our reference here is to evidentiary reliability–that is, trustworthiness…..In a case involving scientific evidence, evidentiary reliability will be based upon scientific validity.” Daubert 509 U S 579, 113 S Ct at 2795; 125 L Ed 2d at 481; n. 9, emphasis in original.
We at PsychLaw.net know that Daubert represents the thinking in the federal courts with respect to science, evidentiary reliability and admissibility. State supreme courts across the United States have adopted the reliability and validity requirements of Daubert as cases on point come to them for decision.
Following Daubert, a debate raged in the journals and decisions of law. Validity and reliability were now the touchstones of admissibility for “scientific evidence” 113 S Ct at 2795, 125 L Ed 2d at 481. But what of “technical” information and “experience based” professionals? This debate was particularly telling for the various mental health professionals. These professionals frequently did an adroit two-step around “science,”[2] and the “datum of their discipline,” [3] during cross examination.
In a decision widely hailed as the “tombstone” for “junk science” in the courtroom, Kumho Tire Company, Ltd. v Carmichael, ___ U. S. ___, 119 S.Ct. 1167; 143 L.Ed.2d 238 (March, 1999) simply held: “Daubert…..applies to all expert testimony.”119 S.Ct. 1167 at 1174.
Although Kumho concerned an engineer doing a visual and tactile inspection of a supposedly defective tire, the importance for the cross examination of mental health professionals cannot be underestimated. Writing for the Court, Mr. Justice Breyer relied heavily upon Justice Brennan’s elegant Daubert analysis. At PsychLaw.net we emphasize that the key feature of Kumho is it’s addressing a “subjective” analysis by an expert of a critical facet in the case. 119 S.Ct. 1167at 1177. As is so often seen with mental health experts, the expert in Kumho testified that his subjective and experience based methodology was accurate. Piercing this veil, Justice Breyer wrote: “Carlson himself claimed that his method was accurate….. ‘nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.”Kumho Tire Company, Ltd. v Carmichael, ___ U. S. ___, 119 S.Ct. 1167, 1179; 143 L.Ed.2d 238 ( 1999) citations omitted
In the underlying Carmichael v. Samyang Tires, Inc., 923 F.Supp. 1514 (S.D.Ala.1996), expert Carlson testified in a discovery deposition. Despite the fact that the tire on the accident vehicle was quite bald and really old, the expert claimed it blew out because of a manufacturing defect. On motion by the various defendants, the federal district court agreed that it should act as a Daubert-type “gatekeeper”. The Court made this decision even though Carlson’s testimony was characterized as “technical” rather than “scientific.” 119 S.Ct. 1167 at 1173. In his Daubert role, the trial judge examined the expert’s methodology and the reliability-related factors that Daubert described. The trial judge reviewed issues such as a theory’s testability, peer review or publication, and rates of error. This analysis resulted in the trial judge refusing to allow the “expert’s” testimony before the jury. 119 S.Ct. 1167at 1173.
The Kumho plaintiffs argued that the court’s application of the Daubert factors was “inflexible”, and the trial judge granted a reconsideration motion. 119 S.Ct. 1167 at 1173. Following another analysis, the trial judge found that even under a more “flexible” Daubert analysis, there were insufficient indications of reliability in the proposed testimony. 119 S.Ct. 1167at 1173. Then the Eleventh Circuit reversed.
Describing “experience” based professionals as distinct from “scientific” experts, the Eleventh Circuit ruled that the proposed Kumho expert’s testimony fell “outside the scope of Daubert”. The Eleventh Circuit moreover concluded that “the district court erred as a matter of law by applying Daubert in this case” 131 F.3d 1433 at 1436 (1997). The Supreme Court granted certiorari because of the uncertainty among the lower courts about whether, or how, Daubert applied to expert testimony. The status of “technical” or “other specialized knowledge”, that is not “scientific” in a laboratory sense, remained unclear. 119 S.Ct. 1167 at 1173.
At PsychLaw.net we consider that The Court reiterated its position that the trial judge must undertake the “gatekeeping obligation.” The Court moreover emphasized that this reliability testing function applies not only to testimony based on scientific knowledge, but also to testimony based on “technical and other specialized” knowledge. 119 S.Ct. 1167 at 1171 Because as Daubert pointed out, Federal Rules 702 and 703 grant expert witnesses latitude unavailable to other witnesses. Experts enjoy this latitude premised on the “assumption that the expert’s opinion will have a reliable basis in the knowledge and experience of his discipline.”119 S.Ct. 1167 at 1174.
We remember at PsychLaw.net that Quoting from Judge Learned Hand in: Hand, Historical and Practical Considerations Regarding Expert Testimony, 15 Harv. L.Rev. 40, 54 (1901), Mr. Justice Breyer explained that experts of all kinds tie observations to conclusions through the use of “general truths derived from … specialized experience.”. 119 S.Ct. 1167at 1174. To meet the validity and reliability challenge, Breyer instructed: “Daubert’s list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.” Kumho Tire Company, Ltd. v Carmichael, ___ U. S. ___, 119 S.Ct. 1167, 1171; 143 L.Ed.2d 238 ( 1999)
KEY DAUBERT CONCEPTS
TRIAL COURT Is the gatekeeper who must make a preliminary assessment as to whether the reasoning and methodology proffered are scientifically valid. 509 U S 579, 113 S Ct at 2796, 125 L Ed 2d at 482.
TRIAL COURT Must ensure that proffered testimony is relevant and reliable with a focus solely on principles and methodology. 509 U S 579, 113 S Ct at 2797, 125 L Ed 2d at 484.
EVIDENTIARY ADMISSIBILITY Shall be based upon reliability determined by the degree of scientific validity. 509 U S 579, 113 S Ct at 2795, 125 L Ed 2d at 481.
SCIENTIFIC METHODOLOGY Means generating hypotheses and testing them to see if they can be falsified. Has the technique been “tested” is the key question. 509 U S 579, 113 S Ct at 2796, 125 L Ed 2d at 483.
SCIENTIFIC KNOWLEDGE Is that which is derived from the empiricism of the scientific method. 509 U S 579, 113 S Ct at 2795, 125 L Ed 2d at 482.
EXPERTS Must be grounded in the methods and procedures of science. 509 U S 579, 113 S Ct at 2795, 125 L Ed 2d at 481.
EXPERTS Must know and base their opinions reliably on the datum of their discipline. 509 U S 579, 113 S Ct at 2796, 125 L Ed 2d at 482.
KEY KUMHO TIRE CONCEPTS
TRIAL COURT Must have considerable leeway in deciding whether the proposed testimony and the proposed expert is reliable.119 S.Ct. 1167 at 1176
TRIAL COURT Must determine both the validity of the expert’s qualifications and the reliability of the proposed testimony 119 S.Ct. 1167 at 1176 – 1177
EXPERTS Must demonstrate a valid connection to the pertinent facts as a precondition to admissibility 119 S.Ct. 1167 at 1174
EXPERTS Whether basing testimony on professional studies or personal experience, must employ in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” 119 S.Ct. 1167 at 1176
At PsychLaw.net we know that read together, Daubert and Kumho Tire make it clear that the trial judge is now required to independently evaluate 1). the reasonableness of the expert’s reliance on his data and 2). the data underlying an expert’s opinion. These are now preconditions to the admissibility of the evidence under Rule 702. [4] Although Daubert was a Rule 702 decision focusing on an expert’s methodology, the reasoning in Daubert is also relevant to Rule 703 issues relating to the data underlying an expert’s opinion because the two rules are interrelated. [5] Thus, appellate courts require district courts to act as “gatekeepers”, ensuring that the scientific data supporting the expert’s opinion are reasonable and reliable.[6]
This blog, is aimed squarely at helping you, to assist the trial judge in sorting out these validity and reliability issues.
DAUBERT STATES
Arkansas
Jones -v. Arkansas, 862 S.W.2d 242, 245 (Ark. 1993). (Arkansas rejected the Frye standard before Daubert. See Prater v. Arkansas, 820 S.W.2d 429 (1991).)
Delaware
Nelson v. Delaware, 628 A.2d 69, 73 (Del. 1993). (“We have held that Frye is not the sole criteria for assessing admissibility of scientific test results or evidence.”)
Indiana
Harrison v. Indiana, 633 N.E.2d 1243, 1252 (Ind. 1995).
Iowa
Hutchison v. American Family Mut. Ins. Co., 514 N.W.2d 882, 885, 886 (Iowa 1994). See also Iowa v. Hall, 297 N.W.2d 80 (Iowa 1980), rejecting Frye test if reliability can otherwise be established.
Kentucky
Cecil v. Kentucky, 888 S.W.2d 669, 675 (Ky. 1994).
Louisiana
Louisiana v. Foret, 628 So. 2d It 16, 1122, 1123 (La. 1993).
Massachusetts
Massachusetts v. Lanigan, 641 N.E.2d 1342, 1349 (Mass. 1994) (accepts Daubert reasoning but suspects general acceptance will continue to be the significant, and often the only issue).
Montana
Montana v. Moore, 885 P.2d 457,471 (Mont. 1994).
New Mexico
New Mexico v. Alberico, 861 P.2d 192, 203 (N.M. 1993).
South Dakota
South Dakota Dept of Social Servs. ex rel. Wolf v. McCarty, 506 N.W.2d 144,147 (S.D. 1993).
Vermont
Vermont v. Brooks, 643 A.2d 226, 229 (Vt. 1993).
Virginia
Cotton v. Virginia, 451 S.E.2d 673, 675 (Va. Ct. App. 1994). The Virginia Supreme Court rejected Frye in Spencer v. Virginia, 393 S.E.2d 609 (Va. 1990). Spencer test emphasizes reliability.
West Virginia
Wilt v. Buracker, 443 S.E.2d 196, 203 (W. Va. 1993).
Wyoming
Springfield v. Wyoming, 860 P.2d 435, 442, 443 (Wyo. 1993).
Footnotes
[1]. Gerjuoy, E. (1993). Improving Courtroom Presentations of Scientific Evidence, 22 PHYSICS & SOC. 6, 8. (Gerjuoy discusses a tortured Ninth Circuit ruling where testimony that previously had been excluded would probably have to be admitted under the Ninth Circuit’s “general acceptance” interpretation).
[2]. 113 S Ct at 2795, 125 L Ed 2d at 482
[3]. 113 S Ct at 2796, 125 L Ed 2d at 482
[4]. Daubert rejects the general acceptance test for evaluating reliability of scientific evidence and requires a 702 & 703 analysis Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597, 113 S. Ct. 2786, 2799, 125 L. Ed. 2d 469, 485 (1993).
[5]. Daubert reliability standards apply to data issues arising under Rule 703. See: In re Paoli R.R. Yard PCB Litig. 35 F.3d 717, 748-749 (3d Cir. 1994) cert. denied 513 U.S. 1090 (1995) (applying same standard avoids need of making metaphysical distinctions between problems with underlying data itself as opposed to problems with the methods used to analyze the data).
[6]. For early examples of the Judge as gatekeeper in evaluating an expert and the expert’s data, See: In re Paoli R.R. Yard PCB Litig, 35 F.3d 717, 742 (3d Cir. 1994), cert. denied. 513 U.S. 1090 (1995) (gatekeeping role with regard to experts includes independent evaluation of reasonableness of the data relied on by experts under Fed. R. Evid. 703). See, also: 2d Circuit United States v. Locascio, 6 F.3d 924. 938 (2d Cir. 1993), cert. denied., 511 U.S. 1070 (1994) (Daubert principles interpreting FRE 702 apply equally to FRE 703). 3d Circuit In re Paoli R.R. Yard PCB Litig., 35 F.3d 717. 742 (3d Cir. 1994), cert. denied. 513 U.S. 1690 (1995) (gatekeeping role with regard to experts includes independent evaluation of reasonableness of data relied on by experts FRE 703). 5th Circuit See: Allen v. Pennsylvania Eng’g Corp., 102 F.3d 194, 197 n.4 (5th Cir. 1996) (Courts using Daubert standard for admissibility of expert testimony should pay close attention when expert witnesses depart from generally accepted scientific methodologies, because judge or jury may not be junior scientists, equipped to evaluate scientific innovation; Guillory v. Domtar Industries, Inc., 95 F.3d 1320, 1331 (5th Cir. 1996) (it is the role of the district Judge as gatekeeper for expert evidence to exclude evidence tainted by farce or fiction). 7th Circuit See: Porter v. Whitehall Laboratories. Inc., 9 F.3d 607, 614 (7th Cir. 1993)(court properly excluded testimony not grounded in scientific method Daubert analysis). 8th Circuit See: Sorensen by and through Dunbar v. Shaklee Corp., 31 F.3d 638, 650-651 (8th Cir. 1994) (After a Daubert analysis the court properly excluded testimony because scientific basis of proposed testimony was too speculative). 11th Circuit See: Raynor v. Merrell Pharmaceuticals, Inc., 104 F3d 1371, 1374 (D.C. Cir. 1997) (“Daubert creates no obvious bar to applying Rule 703 as we have done in the past”; finding that trial court properly excluded proffered testimony under Rule 702); Ambrosini v. Labarraque. 101 F.3d 129,133-134, 137-139 (D.C. Cir. 1996), cert. dismissed, – U.S. -, 117 S. Ct. 1572 (1997) (as gatekeeper concerning scientific evidence using Daubert standard, district court must engage in preliminary assessment as to whether reasoning or methodology underlying testimony is scientifically valid and whether reasoning or methodology properly can be applied to facts at issue); Ealy v. Richardson-Merrell, Inc., 897 F.2d 1159, 1161- 1162 (D.C. Cir.), cert. denied, 498 U.S. 950 (1990) (pre-Daubert case in which court excluded testimony as without scientific foundation in face of wealth of published contrary data).