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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 Breyer’s opinion concluded that "Daubert’s general
holding . . . applies not only to testimony based on ‘scientific’ knowledge,
but also to testimony based on ‘technical’ and ‘other specialized’ 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, Daubert’s 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 Daubert’s strict standards by proffering
expert testimony as non-scientific and arguing that the Court’s 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 expert’s opinion will have a reliable basis in the
knowledge and experience of his discipline. Amplifying, Justice Breyer
stated that Daubert’s reliability test is focused on the word
"’knowledge’, not the phrase "scientific knowledge", because, referring
to the Federal Rules of Evidence, it is the "Rules word knowledge not
the words (like ‘scientific’) 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 State’s 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 Frye’s
"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. Daubert’s scientific discussions reflect
the language employed by these amici, beginning with the Court’s 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 Court’s 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 Daubert’s clear articulation of a dividing
line between scientific and non-scientific inquiry and Kumho’s
declaration that no such distinction exists may raise a tension between
the opinions, especially since the older opinion’s 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 Daubert’s criteria to all expert testimony, since all non-scientific
testimony is likely to fail Daubert’s testing and error rate
criteria.
A possible solution may lie in Kumho’s affirmation of Daubert’s
admonition that the four factors be applied flexibly. If flexibility
is defined as applying all four of Daubert’s 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 Circuit’s reversal
of a district court’s exclusion of an engineer’s 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 court’s 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 ‘scientific context,’" 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. |
