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Daubert and the Law and Science of |
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AMENDMENTS TO THE FEDERAL
RULES OF EVIDENCE: THE
700 RULES
Amendments to the Federal
Rules of Evidence took effect December 1, 2000. Those amendments incorporate into
Rules 701, 702 and 703 some of the guidance on admissibility of
expert testimony that the Court has provided in, and since, Daubert. The committee notes associated with
the amendments echo strongly the notions articulated here and in
the scholarly literature, including the importance of the scientific
method, (which is mentioned twenty-seven times in the Advisory Committee
notes and commentary that accompany the amendments to rule 702)
in determining the admissibility of expert testimony.
The proposed rules, along with excerpts of the Committee
Notes, are reproduced here with added language in italics and deleted
language struck through.
Proposed Rule 701. Opinion
Testimony by Lay Witnesses If the witness is not
testifying as an expert, the witness’ testimony in the form of opinions
or inferences is limited to those opinions or inferences which are
(a) rationally based on the perception of the witness,
COMMITTEE NOTE
Rule 701 has been amended
to eliminate the risk that the reliability requirements set forth
in Rule 702 will be evaded through the simple expedient of proffering
an expert in lay witness clothing. Under the amendment, a witness’
testimony must be scrutinized under the rules regulating expert
opinion to the extent that the witness is providing testimony based
on scientific, technical, or other specialized knowledge within
the scope of Rule 702. See generally Asplundh Mfg. Div. v. Benton
Harbor Eng’g, 57 F.3d 1190 (3d Cir. 1995). By channeling testimony
that is actually expert testimony to Rule 702, the amendment also
ensures that a party will not evade the expert witness disclosure
requirements set forth in Fed.R.Civ.P. 26 and Fed.R.Crim.P.16 by
simply calling an expert witness in the guise of a layperson. . . . The amendment does not
distinguish between expert and lay witnesses, but rather between
expert and lay testimony. . . . The amendment makes
clear that any part of a witness’ testimony that is based upon scientific,
technical, or other specialized knowledge within the scope of Rule
702 is governed by the standards of Rule 702 and the corresponding
disclosure requirements of the Civil and Criminal Rules. The amendment is not
intended to affect the “prototypical example[s] of the type of evidence
contemplated by the adoption of Rule 701 relat[ing] to the appearance
of persons or things, identity, the manner of conduct, competency
of a person, degrees of light or darkness, sound, size, weight,
distance, and an endless number of items that cannot be described
factually in words apart from inferences.” Asplundh Mfg. Div. v.
Benton Harbor Eng’g, 57 F.3d 1190, 1196 (3d Cir. 1995).
. . .
The amendment incorporates
the distinctions set forth in State v. Brown, 836 S.W.2d 530, 549
(1992), . . . In Brown,
the court declared that the distinction between lay and expert witness
testimony is that lay testimony “results from a process of reasoning
familiar in everyday life”, while expert testimony “results from
a process of reasoning which can be mastered only by specialists
in the field.” The court in Brown noted that a lay witness with
experience could testify that a substance appeared to be blood,
but that a witness would have to qualify as an expert before he
could testify that bruising around the eyes is indicative of skull
trauma. That is the kind of distinction made by the amendment to
this Rule. Proposed Rule 702. Testimony
by Experts If scientific, technical,
or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training,
or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the principles
and methods reliably to the facts of the case.
COMMITTEE NOTE
Rule 702 has been amended
in response to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), and to the many cases applying Daubert, including
Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999). In Daubert
the Court charged trial judges with the responsibility of acting
as gatekeepers to exclude unreliable expert testimony, and the Court
in Kumho clarified that this gatekeeper function applies to all
expert testimony, not just testimony based in science. See also
Kumho, 119 S.Ct. at 1178 (citing the Committee Note to the proposed
amendment to Rule 702, which had been released for public comment
before the date of the Kumho decision). The amendment affirms the
trial court’s role as gatekeeper and provides some general standards
that the trial court must use to assess the reliability and helpfulness
of proffered expert testimony. Consistently with Kumho, the Rule
as amended provides that all types of expert testimony present questions
of admissibility for the trial court in deciding whether the evidence
is reliable and helpful. Consequently, the admissibility of all
expert testimony is governed by the principles of Rule 104(a). Under
that Rule, the proponent has the burden of establishing that the
pertinent admissibility requirements are met by a preponderance
of the evidence. See Bourjaily v. United States, 483 U.S. 171 (1987).
Daubert set forth a
non-exclusive checklist for trial courts to use in assessing the
reliability of scientific expert testimony. The specific factors
explicated by the Daubert Court are (1) whether the expert’s technique
or theory can be or has been tested--that is, whether the expert’s
theory can be challenged in some objective sense, or whether it
is instead simply a subjective, conclusory approach that cannot
reasonably be assessed for reliability; (2) whether the technique
or theory has been subject to peer review and publication; (3) the
known or potential rate of error of the technique or theory when
applied; (4) the existence and maintenance of standards and controls;
and (5) whether the technique or theory has been generally accepted
in the scientific community. The Court in Kumho held that these
factors might also be applicable in assessing the reliability of
non-scientific expert testimony, depending upon “the particular
circumstances of the particular case at issue.” 119 S.Ct. at 1175.
No attempt has been
made to “codify” these specific factors. Daubert itself emphasized
that the factors were neither exclusive nor dispositive. Other cases
have recognized that not all of the specific Daubert factors can
apply to every type of expert testimony. In addition to Kumho, 119
S.Ct. at 1175, see Tyus v. Urban Search Management, 102 F.3d 256
(7th Cir. 1996) (noting that the factors mentioned by the Court
in Daubert do not neatly apply to expert testimony from a sociologist).
See also Kannankeril v. Terminix Int’l, Inc., 128 F.3d 802, 809
(3d Cir. 1997) (holding that lack of peer review or publication
was not dispositive where the expert’s opinion was supported by
“widely accepted scientific knowledge”). The standards set forth
in the amendment are broad enough to require consideration of any
or all of the specific Daubert factors where appropriate. Courts both before and
after Daubert have found other factors relevant in determining whether
expert testimony is sufficiently reliable to be considered by the
trier of fact. These factors include: (1) Whether experts
are “proposing to testify about matters growing naturally and directly
out of research they have conducted independent of the litigation,
or whether they have developed their opinions expressly for purposes
of testifying.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 43
F.3d 1311, 1317 (9th Cir. 1995). (2) Whether the expert
has unjustifiably extrapolated from an accepted premise to an unfounded
conclusion. See General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)
(noting that in some cases a trial court “may conclude that there
is simply too great an analytical gap between the data and the opinion
proffered”). (3) Whether the expert
has adequately accounted for obvious alternative explanations. See
Claar v. Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994) (testimony
excluded where the expert failed to consider other obvious causes
for the plaintiff’s condition). Compare Ambrosini v. Labarraque,
101 F.3d 129 (D.C.Cir. 1996) (the possibility of some uneliminated
causes presents a question of weight, so long as the most obvious
causes have been considered and reasonably ruled out by the expert).
(4) Whether the expert
“is being as careful as he would be in his regular professional
work outside his paid litigation consulting.” Sheehan v. Daily Racing
Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997). See Kumho Tire Co.
v. Carmichael, 119 S.Ct. 1167, 1176 (1999) (Daubert requires the
trial court to assure itself that the expert “employs in the courtroom
the same level of intellectual rigor that characterizes the practice
of an expert in the relevant field”). (5) Whether the field
of expertise claimed by the expert is known to reach reliable results
for the type of opinion the expert would give. See Kumho Tire Co.
v. Carmichael, 119 S.Ct.1167, 1175 (1999) (Daubert’s general acceptance
factor does not “help show that an expert's testimony is reliable
where the discipline itself lacks reliability, as, for example,
do theories grounded in any so-called generally accepted principles
of astrology or necromancy.”); Moore v. Ashland Chemical, Inc.,
151 F.3d 269 (5th Cir. 1998) (en banc) (clinical doctor was properly
precluded from testifying to the toxicological cause of the plaintiff’s
respiratory problem, where the opinion was not sufficiently grounded
in scientific methodology); Sterling v. Velsicol Chem. Corp., 855
F.2d 1188 (6th Cir. 1988) (rejecting testimony based on “clinical
ecology” as unfounded and unreliable). All of these factors
remain relevant to the determination of the reliability of expert
testimony under the Rule as amended. Other factors may also be relevant.
See Kumho, 119 S.Ct. 1167, 1176 (“[W]e conclude that the trial judge
must have considerable leeway in deciding in a particular case how
to go about determining whether particular expert testimony is reliable.”).
Yet no single factor is necessarily dispositive of the reliability
of a particular expert’s testimony. See, e.g., Heller v. Shaw Industries,
Inc., 167 F.3d 146, 155 (3d Cir. 1999) (“not only must each stage
of the expert’s testimony be reliable, but each stage must be evaluated
practically and flexibly without bright-line exclusionary (or inclusionary)
rules.”); Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d
1311, 1317, n.5 (9th Cir. 1995) (noting that some expert disciplines
“have the courtroom as a principal theatre of operations” and as
to these disciplines “the fact that the expert has developed an
expertise principally for purposes of litigation will obviously
not be a substantial consideration.”). A review of the caselaw
after Daubert shows that the rejection of expert testimony is the
exception rather than the rule. Daubert did not work a "seachange
over federal evidence law," and "the trial court's role as gatekeeper
is not intended to serve as a replacement for the adversary system."
United States v. 14.38 Acres of Land Situated in Leflore County,
Mississippi, 80 F.3d 1074, 1078 (5th Cir. 1996). As the Court in
Daubert stated: “Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but admissible
evidence.” 509 U.S. at 595. Likewise, this amendment is not intended
to provide an excuse for an automatic challenge to the testimony
of every expert. See Kumho Tire Co. v. Carmichael, 119 S.Ct.1167,
1176 (1999) (noting that the trial judge has the discretion “both
to avoid unnecessary ‘reliability’ proceedings in ordinary cases
where the reliability of an expert's methods is properly taken for
granted, and to require appropriate proceedings in the less usual
or more complex cases where cause for questioning the expert's reliability
arises.”). When a trial court,
applying this amendment, rules that an expert’s testimony is reliable,
this does not necessarily mean that contradictory expert testimony
is unreliable. The amendment is broad enough to permit testimony
that is the product of competing principles or methods in the same
field of expertise. See, e.g., Heller v. Shaw Industries, Inc.,
167 F.3d 146, 160 (3d Cir. 1999) (expert testimony cannot be excluded
simply because the expert uses one test rather than another, when
both tests are accepted in the field and both reach reliable results).
As the court stated in In re Paoli R.R. Yard PCB Litigation, 35
F.3d 717, 744 (3d Cir. 1994), proponents “do not have to demonstrate
to the judge by a preponderance of the evidence that the assessments
of their experts are correct, they only have to demonstrate by a
preponderance of evidence that their opinions are reliable. . .
. The evidentiary requirement of reliability is lower than the merits
standard of correctness.” See also Daubert v. Merrell Dow Pharmaceuticals,
Inc., 43 F.3d 1311, 1318 (9th Cir. 1995) (scientific experts might
be permitted to testify if they could show that the methods they
used were also employed by “a recognized minority of scientists
in their field."); Ruiz-Troche v. Pepsi Cola, 161 F.3d 77, 85 (1st
Cir. 1998) (“Daubert neither requires nor empowers trial courts
to determine which of several competing scientific theories has
the best provenance.”). The Court in Daubert
declared that the “focus, of course, must be solely on principles
and methodology, not on the conclusions they generate.” 509 U.S.
at 595. Yet as the Court later recognized, “conclusions and methodology
are not entirely distinct from one another.” General Elec. Co. v.
Joiner, 522 U.S. 136, 146 (1997). Under the amendment, as under
Daubert, when an expert purports to apply principles and methods
in accordance with professional standards, and yet reaches a conclusion
that other experts in the field would not reach, the trial court
may fairly suspect that the principles and methods have not been
faithfully applied. See Lust v. Merrell Dow Pharmaceuticals, Inc.,
89 F.3d 594, 598 (9th Cir. 1996). The amendment specifically provides
that the trial court must scrutinize not only the principles and
methods used by the expert, but also whether those principles and
methods have been properly applied to the facts of the case. As
the court noted in In re Paoli R.R. Yard PCB Litig., 35 F.3d 717,
745 (3d Cir. 1994), "any step that renders the analysis unreliable
. . . renders the expert's testimony inadmissible. This is true
whether the step completely changes a reliable methodology or merely
misapplies that methodology."
. . .
Subpart (1) of Rule
702 calls for a quantitative rather than qualitative analysis. The
amendment requires that expert testimony be based on sufficient
underlying “facts or data.” The term “data” is intended to encompass
the reliable opinions of other experts. See the original Advisory
Committee Note to Rule 703. The language “facts or data” is broad
enough to allow an expert to rely on hypothetical facts that are
supported by the evidence. Id. When facts are in dispute,
experts sometimes reach different conclusions based on competing
versions of the facts. The emphasis in the amendment on “sufficient
facts or data” is not intended to authorize a trial court to exclude
an expert’s testimony on the ground that the court believes one
version of the facts and not the other. There has been some
confusion over the relationship between Rules 702 and 703. The amendment
makes clear that the sufficiency of the basis of an expert’s testimony
is to be decided under Rule 702. Rule 702 sets forth the overarching
requirement of reliability, and an analysis of the sufficiency of
the expert’s basis cannot be divorced from the ultimate reliability
of the expert’s opinion. In contrast, the ``reasonable reliance''
requirement of Rule 703 is a relatively narrow inquiry. When an
expert relies on inadmissible information, Rule 703 requires the
trial court to determine whether that information is of a type reasonably
relied on by other experts in the field. If so, the expert can rely
on the information in reaching an opinion. However, the question
whether the expert is relying on a sufficient basis of information--whether
admissible information or not--is governed by the requirements of
Rule 702.
Proposed Rule 703. Bases
of Opinion Testimony by Experts The facts or data in
the particular case upon which an expert bases an opinion or inference
may be those perceived by or made known to the expert at or before
the hearing. If of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the subject,
the facts or data need not be admissible in evidence in order for the opinion or inference
to be admitted. Facts or data that are otherwise inadmissible shall
not be disclosed to the jury by the proponent of the opinion or
inference unless the court determines that their probative value
in assisting the jury to evaluate the expert’s opinion substantially
outweighs their prejudicial effect. COMMITTEE NOTE
. . .
When information is
reasonably relied upon by an expert and yet is admissible only for
the purpose of assisting the jury in evaluating an expert’s opinion,
a trial court applying this Rule must consider the information’s
probative value in assisting the jury to weigh the expert’s opinion
on the one hand, and the risk of prejudice resulting from the jury’s
potential misuse of the information for substantive purposes on
the other. The information may be disclosed to the jury only if
the trial court finds that the probative value of the information
in assisting the jury to evaluate the expert’s opinion substantially
outweighs its prejudicial effect. If the otherwise inadmissible
information is admitted under this balancing test, the trial judge
must give a limiting instruction upon request, informing the jury
that the underlying information must not be used for substantive
purposes. See Rule 105. In determining the appropriate course, the
trial court should consider the probable effectiveness or lack of
effectiveness of a limiting instruction under the particular circumstances.
The amendment governs
only the disclosure to the jury of information that is reasonably
relied on by an expert, when that information is not admissible
for substantive purposes. It is not intended to affect the admissibility
of an expert's testimony. Nor does the amendment prevent an expert
from relying on information that is inadmissible for substantive
purposes. |
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