Federal Rule of Evidence 104(a) provides that preliminary questions concerning the qualification of a person to be a witness, or the admissibility of evidence, shall be determined by the court. Under this rule, the court is authorized to hold an evidentiary hearing to make a preliminary determination that an expert is properly qualified, and that the expert’s underlying reasoning or methodology is scientifically valid and can be applied to the facts of the case.[1]
Federal Rule of Evidence 104 (c) provides in part that hearings on preliminary matters, such as Daubert hearings, may be conducted when the interests of justice require.
In the exercise of its gatekeeping function, the Daubert Court held that a trial court must undertake a preliminary determination of whether the methodology of the expert’s proposed testimony is scientifically reliable. To accomplish this with the greatest judicial economy, and to avoid “junk science” creeping into the minds of the trier of fact, a Daubert hearing is the appropriate way to challenge an expert whose methodology is questionable.[2]
At PsychLaw.net we believe it is especially important for the gatekeeper to distinguish between a number of meaningful issues:
Is this particular expert qualified?
Do the qualifications of this expert fit the facts of this case?
What is the scientific validity of the methodology the expert has used?
What is the scientific reliability of the methodology the expert has used?
What is the scientific validity of the underlying data the expert bases his or her opinions on?
What is the scientific reliability of the underlying data the expert bases his or her opinions on?
To what extent is the expert’s reliance on that data reasonable. These are analytically distinct concepts.[3]
At PsychLaw.net we remind you that in answering these gatekeeping questions, the courts must evaluate the experts, their opinions, and the foundations for those opinions on a case-by-case basis.[4] In conducting these hearings, the trial judge may rely on another expert’s evaluation of underlying data.[5] Nonetheless, reliance on other experts must not eviscerate the judge’s gatekeeping role.[6], [7]
For these reasons, at PsychLaw.net, we have shared Dr. Lorandos’ Evidence and Cross Examination videos which explain in detail how to use the basic foundational material to conduct a Daubert hearing.
[1]. See, i.e.: Smelser v Norfolk Southern Ry. Co., 105 F.3d 299, 302-303, 46 Fed. R. Evid. Serv. (LCP) 468, 1997 FED App 33P (6th Cir. 1997);cert denied, 118 S.Ct. 67, 139 L. Ed.2d 29 (US 1997). When applying Daubert, the trial court resolves preliminary questions on admissibility of expert testimony under FRE 104(a), and must determine whether expert testimony reflects scientific knowledge, whether findings are based on scientific knowledge and derived by the scientific method. In Smelser, the trial court did not apply Daubert factors in admitting the testimony of a biomedical engineer and the verdict for a plaintiff in FELA suit was reversed. See, also: Watkins v Schriver, 52 F.3d 769 (8th Cir 1995); Eagleston v Guido, 41 F.3d 865 (2nd Cir. 1994), cert denied, 116 S.Ct 53 (1996).
[2]. See, i.e.: United States v. Vitek, 144 F.3d 476 (7th Cir. 1998). The trial court held a lengthy and exhaustive Daubert hearing.
[3]. Curiously, one Circuit has rules that a trial judge may still fulfill his or her gatekeeper function without making an explicit finding that an expert’s underlying sources of information are trustworthy. See, i.e.: United States v. Locascio, 6 F.3d 938 (2d Cir. 1993). cert. denied., —U.S. —; 128 L Ed. 2d 365 (1994) The Second Circuit ruled that a finding or trustworthiness of sources was not required. This Circuit reasoned that although Daubert principle interpreting Fed. R. Evid. 702 applies equally to Fed. R. Evid. 703, trial courts retain authority and discretion to determine admissibility of expert testimony based on inadmissible evidence without having to conduct an explicit trustworthiness analysis.
[4]. See, i.e.: Soden v. Freightliner Corp., 714 F-2d 498, 502- 505 (5th Cir. 1983) Fed. R. Evid. 703 requires courts to examine reliability of expert’s sources on a case-by-case basis.
[5]. See, i.e.: In re Japanese Elec., Prod. Antitrust Litig., 723 F.2d 238, 285 (3d Cir. 1983), rev’d on other grounds sub nom. Matsushita Elec. Indus. Co. v.. Zenith Radio Corp., 473 U.S. 574 (1986). Proper inquiry is not what the court deems reliable but what experts in relevant discipline deem it to be.
[6]. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 2793-2799, 125 L. Ed. 2d 469, 485 (1993); In re Paoli R.R. Yard PCB Litigation v. Southeastern Pa. Trans., 35 F.3d 717, 742 (3d Cir. 1994) Daubert clearly holds that Fed. R. Evid: 703 requires an independant gatekeeping role.
[7]. See, i.e.: Head v. Lithonia Corp. Inc., 981 F.2d 941. 944 (10th Cir. 1989) It is reversible error when a trial court fails to make a preliminary determination that data underlying an expert’s opinion is of kind reasonably relied on by experts in field. And see:
1st Circuit: See University of Rhode Island v. A.W. Chesterton Co., 2 F.3d 1200,1217-1218 (1st Cir. 1993) Fed. R. Evid. 703 does not afford automatic entitlement to proponents of expert testimony, and court must give careful consideration to any facts on which expert will rely to determine whether reliance is reasonable.
2d Circuit: See In re Agent Orange Prod. Liab. Lit., 611 F. Supp. 1223,1246 (E.D.N.Y. 1985), aff’d, 818 F.2d 187 (2d Cir. 1987), cert. denied, 487 U.S. 1234 (1988) A guarantee of trustworthiness is seen when an expert relied on material of a kind normally employed by experts in field.
3d Circuit: See Advent Sys. Ltd. v. Unisys Corp., 925 F.2d 670, 682 (3d Cir. 1991) Case remanded because of failure of trial court to make inquiry and finding as to what experts in field find reliable when defendant’s expert based opinion of prospective profits on predicted sales rather than an available data of actual performance).
4th Circuit: See Wilder Enters., Inc. v. Allied Artists Pictures Corp., 632 F.2d 1135,1144 (4th Cir. 1980) Expert opinion testimony was properly excluded due when proponent failed to show that data underlying opinion was of type reasonably relied on by experts in field.