The Impact of Kumho Tire v. Carmichael

This article is a slight extension of an article published in The Miami Daily Business Review. It can be viewed almost as an addenda to the Florida Bar Journal article.

Supreme Court extends strict Daubert standards to non-scientific expert testimony: New ruling includes all experts in antitrust and securities litigation.

Stephen Mahle, April 2, 1999

This past summer, in an opinion that had been widely anticipated among business litigators, the United States Supreme Court extended the reach of its landmark opinion, Daubert v. Merrell Dow Pharmaceuticals, Inc. to include all expert testimony proffered in federal courts. Justice Stephen Breyerís opinion concluded that "Daubertís general holding . . . applies not only to testimony based on Ďscientificí knowledge, but also to testimony based on Ďtechnicalí and Ďother specializedí knowledge." The Daubert Court had articulated a four part test for the admissibility of expert testimony and under the new ruling, captioned Kumho Tire Company, Ltd. v. Carmichael, Daubertís general principles are to be applied flexibly to the evaluation of all expert testimony proffered in federal courts.

As a result, Kumho apparently lays to rest a popular strategy that attempts to avoid Daubertís strict standards by proffering expert testimony as non-scientific and arguing that the Courtís 1993 ruling was limited to scientific testimony. This is seen in many areas of interest to business, including antitrust and securities litigation where parties rely heavily on the testimony of economists.

Kumho explained that the Court had couched Daubert in terms of scientific testimony merely because the testimony then before the Court was of a scientific variety, and then went on to hold that Daubert applied not only to "scientific" expert testimony, but to all expert testimony proffered in federal courts.

The Court observed that the Federal Rules of Evidence grant all expert witnesses testimonial latitude unavailable to other witnesses on the assumption that the expertís opinion will have a reliable basis in the knowledge and experience of his discipline. Amplifying, Justice Breyer stated that Daubertís reliability test is focused on the word "íknowledgeí, not the phrase "scientific knowledge", because, referring to the Federal Rules of Evidence, it is the "Rules word knowledge not the words (like Ďscientificí) that modify that word, that establish . . . a standard of evidentiary reliability." Having demoted "scientific" from being the focus of an active debate to being a mere adjective that modifies the reliability-inducing term "knowledge" the Court instructed trial judges not to be overly concerned with distinctions between "scientific," "specialized," and "other," because those words are merely modifiers, not separate classes of testimony.

Indeed, Kumho expressed the view that it would be difficult for judges to distinguish scientific from non-scientific testimony and that there is no clear line dividing the one from the other." This is an interesting observation to be contained in an opinion that extends Daubert, since Daubert drew a clear line between scientific and non-scientific testimony when it stated so correctly that "[s]cientific 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 the other fields of human inquiry." (Emphasis added.) Justice Breyer came onto the court after Daubert was briefed and argued.

Daubert has been controversial and misconstrued from its inception. Over a hundred articles have been published concerning the opinion and one minority of states has adopted it while another minority has apparently rejected it. Florida has perhaps done both, explicitly rejecting Daubert, but doing so with language that seem to impose a virtual Dauberthood on the Stateís Frye progeny. The Frye test held that expert testimony that is based upon scientific technique is inadmissible unless the technique is generally accepted in the scientific community. This standard controlled the admissibility of expert testimony in federal courts from the time that it was handed down in 1923 until Daubert held that Frye had been displaced by the adoption of the Federal Rules of Evidence. After Daubert was handed down in 1993 many state courts adopted Daubert as their standard for admitting expert testimony while others rejected it in favor of retaining Frye or some other standard. In Brim v. State the Florida Supreme Court explicitly declined to adopt Daubert, writing that "despite the federal adoption of a more lenient standard in Daubert . . . we have maintained the higher standard of reliability as dictated by Frye." However, in Brim and subsequent cases, Florida courts have interpreted Fryeís "general acceptance" standard to be informed by criteria like testability, error rates and peer review that closely follow the criteria articulated in Daubert.

Part of the reason for the struggle over Daubert is that, being an exposition of scientific principals, the opinion is partially couched in terms that are unfamiliar in the legal profession. The Daubert Court had the benefit of several amicus briefs filed on behalf of independent scientists from academia, business and industry, including Nobel Laureates in chemistry, physics and economics that, together, amounted to a tutorial on scientific methods. Daubertís scientific discussions reflect the language employed by these amici, beginning with the Courtís articulation of "the scientific method," a term of art in the scientific community which defines a method of testing scientific theories by posing hypotheses about questions of interest and then testing to see of these hypotheses seem to be true. It is an important aid to understanding Daubert to note that before the Court ever articulated the four criteria that trial courts are to apply to determine the admissibility of expert testimony (and that commentators and trial courts have so widely misconstrued), it took the time to explain this important key to scientific methodology. It was with that foundation that the Court offered the widely quoted four factors. Reordering for clarity, the proffered testimony should be (1) based upon a testable hypothesis that (2) has been tested at some specified error rate. It should have then been (3) peer-reviewed (the techniques, not the results) leading to publication and then should have withstood the broader peer review to which publication exposed it, leading it to some sort of (4) general acceptance in the relevant scientific community.

While it may be an exercise in understatement to note that this four part test rings of the Courtís discussion of "the scientific method," much of the misinterpretation of Daubert can be traced to the failure of courts and commentators to place the four factors in this context.

The conflict between Daubertís clear articulation of a dividing line between scientific and non-scientific inquiry and Kumhoís declaration that no such distinction exists may raise a tension between the opinions, especially since the older opinionís view seems the more accepted among philosophers and scientists, as the amicus reflect. The heart of the matter seems to be that since non-scientific inquiry is distinguished by the fact that it does not test hypotheses at a specified error rate, much non-scientific testimony may have to be excluded by a strict reading of Kumho's requirement that trial courts may apply Daubertís criteria to all expert testimony, since all non-scientific testimony is likely to fail Daubertís testing and error rate criteria.

A possible solution may lie in Kumhoís affirmation of Daubertís admonition that the four factors be applied flexibly. If flexibility is defined as applying all four of Daubertís factors to testimony proffered as scientific and applying only the peer review and general acceptance factors to testimony proffered as non-scientific, then some "other" and "technical" testimony will pass the test. Of course, this seems to fly in the face of the notions of a flexible application of the factors.

Further, in dicta discussing the flexible application of Daubert, the Kumho Court said that "we can neither rule out nor rule in the . . . factors mentioned in Daubert . . . for subsets of cases categorized by category of expert or by kind of evidence." This apparently argues against such a dichotomization of testimony into scientific and non-scientific categories. Lower courts might well take comfort in the fact that dicta is dicta, for they may find themselves backed into such a categorization in an attempt to reconcile Daubert to its interpretation in Kumho.

In Kumho, the Court was reversing the Eleventh Circuitís reversal of a district courtís exclusion of an engineerís proffered testimony that would have opined that a partly bald, improperly repaired tire blew out on the interstate because of a design defect and not because of excessive wear or damage. The district court ruled that the testimony met none of the criteria that the Court had articulated in Daubert. Since the trial courtís Daubert-mandated gatekeeper role required that it establish the reliability of expert testimony before permitting the testimony to reach a jury the trial court excluded the testimony. The Eleventh Circuit reversed the trial court, noting that "the Supreme Court in Daubert explicitly limited its holding to cover only the Ďscientific context,í" and citing the Sixth Circuit for the proposition that "the distinction between scientific and non-scientific expert testimony is a critical one." The appeals court opined that the subject testimony was apparently non-scientific and therefore outside the scope of Daubert. It said "the district court erred as a matter of law by applying Daubert" to the case and reversed. The Supreme Court "granted certiorari in light of uncertainty among the lower courts about whether, or how, Daubert applies to expert testimony that might be characterized as based not upon "scientific" knowledge, but rather upon "technical" or "other specialized" knowledge."

That uncertainty should now be resolved, even if it has been replaced by uncertainty as to how lower courts should reconcile Kumho to the opinion that it extends.

 

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