Daubert and Its Progeny: Admissibility of Expert Testimony in Federal Court

by Michael B. Bogdanow
Meehan, Boyle, Black & Bogdanow, P.C. Boston, Massachusetts
and Craig Todaro, Northeastern University School of Law, Class of 2001

I. Introduction

In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786 (1993), the Supreme Court abandoned the “general acceptance” test as the sole determinant in admission of scientific expert testimony in favor of a broader examination, which included such factors as whether the opinions have been or can be tested, whether they have been subjected to peer review or published, their rate of error, and their general acceptance in the field. In Kumho Tire v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999), the Supreme Court expanded the scope of the Daubert test by holding that the test applies to all expert testimony, whether scientific or non-scientific. Trial judges have used a pre-trial “Daubert/Kumho” hearing to assist in determining the admissibility of expert testimony, and have turned to other admissibility standards such as Fed. R. Evid. 702 (whether the testimony assists the trier of fact) and Fed. R. Evid. 403 (whether the testimony will confuse the jury) to exclude or admit testimony without resorting to the complicated format introduced in Daubert and expanded in Kumho. In turn, appellate courts since Kumho have focused on whether the trial judge abused his discretion in admitting or excluding the testimony and, in some cases, have examined, without focusing on the Daubert factors, whether the expert testimony satisfied other evidentiary standards such as whether there was an adequate factual foundation for the expert’s testimony.

II. Daubert v. Merrell Dow

In Daubert, the Supreme Court abandoned the “general acceptance” test used by trial judges to determine the admissibility of expert testimony. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786 (1993). In this case, the plaintiffs sued the defendant drug manufacturer for birth defects allegedly caused by the drug Bendectin. The plaintiffs, in response to a motion for summary judgment, offered experts to testify to the link between the ingestion of Bendectin and certain birth defects. The District Court concluded that the opinions of the plaintiffs’ experts were not generally accepted in their field and granted the defendant’s motion for summary judgment. The Ninth Circuit Court of Appeals affirmed. On appeal to the Supreme Court, the plaintiffs argued that the “general acceptance” test set forth in Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923) was “superseded by the adoption of the Federal Rules of Evidence.” Daubert, 113 S.Ct. at 2793. The Court agreed and abandoned the “general acceptance” test used by Federal courts for 70 years. In its place, the Court announced that trial judges have the role of “gatekeeper” to ensure “that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Id., 113 S.Ct. at 2795. The Court stated that the trial judge should determine whether the reasoning and methodology is “scientifically valid” and whether “that reasoning properly can be applied to the facts in issue.” Id., 113 S.Ct. at 2796.

The Court presented a four factor test to assist trial judges in determining whether the theory or technique is scientific knowledge and whether it will assist the jury: whether the theory or technique has been tested or can be tested (Id., 113 S.Ct. at 2796); whether the theory or technique has been subjected to peer review and publication (Id., 113 S.Ct. at 2797); whether there is a known or potential rate of error (Id., 113 S.Ct. at 2797); and whether the theory or methodology has been generally accepted within the scientific community. Id., 113 S.Ct. at 2797. The Court stressed that the inquiry should be flexible and focus on the principles and methodology rather than the conclusions they generate. See id., 113 S.Ct. at 2797. Finally, the Court cautioned trial judges, in their role as gatekeepers, to be mindful of other evidentiary rules such as Fed. R. Evid. 703 and Fed. R. Evid. 403. See id., 113 S.Ct. at 2798. After Daubert, the question remained as to whether this new test and role for trial judges extended to “non-scientific” expert testimony. In 1999, the Supreme Court answered that question in the affirmative.

III. Expansion of Daubert into Non-Scientific Testimony

In Kumho, the Supreme Court expanded the scope of the Daubert test to include all forms of expert testimony. Kumho Tire v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999). In this case, the plaintiffs claimed that a defective tire caused their car to overturn. The plaintiffs offered a mechanical engineer to testify that a defect in the tire was the cause of the blowout. The District Court judge, on the defendant’s motion, excluded the expert and granted summary judgment. The judge concluded that the expert’s testimony was subject to a Daubert review even though it was “technical” rather than “scientific,” and that, based on such review, the expert’s methods were not reliable. The Eleventh Circuit reversed and remanded, finding that the judge erred in applying the Daubert test to non-scientific testimony. The Supreme Court reversed, concluding that “it would prove difficult, if not impossible, for judges to administer evidentiary rules under which a ‘gatekeeping’ obligation depended on a distinction between ‘scientific’ knowledge and ‘technical’ or ‘other specialized’ knowledge, since there is no clear line dividing the one from the others and no convincing need to make such distinctions.” Kumho, 119 S.Ct. at 1174-1175. The Court then looked at the trial judge’s decision to exclude the expert, in light of the Daubert test and the wide latitude of discretion granted to trial judges in determining whether an expert’s opinion is relevant and reliable. The Court found that the trial judge had not abused his discretion in excluding the expert, noting that the expert met none of the Daubert criteria and that the methodologies used could not reliably determine the cause of the tire’s separation.

IV. How the Gatekeeping is Performed

In Daubert, the Court provided a general idea as to the nature of the gatekeeping role.

“Faced with a proffer of expert scientific testimony, then, 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 properly can be applied to the facts in issue.” Daubert, 113 S.Ct. at 2796. On remand from Daubert, the lower court’s unease with this new task was clearly evident: “Our responsibility, then, unless we misread the Supreme Court’s opinion is to resolve disputes among respected, well credentialed scientists about matters squarely within their expertise, in areas where there is no scientific consensus as to what is or what is not ‘good science,’ and occasionally to reject such expert testimony because it was not ‘derived by the scientific method.’ Mindful of our position in the hierarchy of the federal judiciary, we take a deep breath and proceed with this heady task.” Daubert v. Merrell Dow, 43 F.3d 1311, 1316. (9th Cir. 1995). By broadening the circle of “experts” to be subjected to the gatekeeping process, Kumho has only expanded the unease that judges already may have felt.

In cases since Kumho, some trial judges have determined the admissibility of expert opinion through the use of a pre-trial “Daubert hearing.” See American Computer Innovators, Inc. v. Electronic Data Systems Corp., 1999 WL 1021049, *5 (D.Mass. 1999) In American Computer Innovators, the defendant sought a pre-trial hearing to exclude the testimony of the plaintiff’s damages expert, offered to show the profits the plaintiff would have derived from an association with the defendant’s client. The defendant argued that there was no foundation evidence to suggest the defendant’s client would have agreed to such an association. After the hearing at which the expert appeared, the judge concluded that exclusion of the testimony would turn on the factual foundation for the opinion, rather than on the Daubert factors. The judge concluded that the expert’s testimony was only relevant upon the fulfilment of a condition of fact – the plaintiff’s ability to publicly associate with the defendant’s client. See American Computer Innovators, 1999 WL 1021049 at *5. However, the judge concluded that if this condition is fulfilled, then the expert’s testimony would be admissible, although it “may be ‘shaky’.” Id., 1999 WL 1021049 at *5. The judge noted that the expert has experience on this issue, the scope of his expertise is specialized, and his analysis includes appropriate comparisons to other companies. Id., 1999 WL 1021049 at *5. Therefore, there were sufficient indicia of reliability, as long as the factual foundation was sound.

In Saia v. Sears Roebuck and Co., Inc., 47 F.Supp.2d 141 (D.Mass. 1999), the defendant moved to exclude the testimony of an expert offered by the plaintiff to testify about the monetary value of the plaintiff’s loss of enjoyment of life. The judge held a “Daubert/Kumho” hearing prior to trial, at which the plaintiff’s expert appeared. Saia, 47 F.Supp.2d at 143. After the hearing the judge concluded, using the factors illustrated in Daubert, that the expert’s testimony regarding “hedonic” damages – calculation of loss of enjoyment of life – was unreliable and would not assist the jury. First, the judge questioned the “testability” of the calculations based on the models. The expert admitted during the hearing that his theories could not be tested. Second, the judge concluded that the expert’s methodology was not generally accepted because other courts had rejected his testimony. Third, the judge pointed out that the methodology had not received enough professional exposure and scrutiny. In addition, the judge concluded that the methodology rested on the unreliable assumption that there is a certain monetary “value” of life of an average person and that the methodology used to calculate the loss of enjoyment of life did not take into account any facts about the plaintiff. Id., 47 F.Supp.2d at 145-149. Finally, the judge alluded to Fed. R. Evid. 702 (whether testimony will assist the trier of fact) and Fed. R. Evid. 403 (whether probative value of evidence is substantially outweighed by the danger of confusion) in finding further reasons to exclude the testimony: “the qualitative and quantitative value of the loss of…enjoyment of life, as it might be included in the pain and suffering he may have endured, can be calculated independently by the jury without the assistance, if not the confusion, of Dr. Smith’s testimony.” Id., 47 F.Supp.2d at 150.

V. Standard of Review

On appeal, the standard for reviewing a judge’s decision to admit or exclude expert testimony is “abuse of discretion.” See General Electric Co. v. Joiner, 522 U.S. 136, 138-139 (1997); Kumho at 1171; Irvine v. Murad Skin Research Laboratories, 1999 U.S. App. Lexis 29846 at *17 (1st Cir. 1999). There are two ways in which appellate courts have reviewed a lower court’s decision to exclude or admit expert testimony: whether there was an abuse of discretion by the judge in his application of the Daubert factors to determine reliability (United States v. Oladipo Salimonu, 182 F.3d 63 (1st Cir. 1999)); and whether the expert’s testimony had an adequate factual basis so as to be deemed reliable. See generally Irvine, 1999 U.S. App. Lexis 29846.

In United States v. Oladipo Salimonu, the First Circuit Court of Appeals reviewed the trial court’s exclusion of a linguistics expert. Before trial, the district judge conducted a voir dire to determine the admissibility of the defendant’s expert, who was to testify that a voice on the government’s tape recording was not that of the defendant. During this hearing the linguist testified that he had no training in voice identification or comparison. Salimonu, 182 F.3d at 73. He stated that he “knew of no studies to determine the rate of error for this kind of identification.” Id. Finally, he testified that “a lay person without linguistics training would be able to discern the same differences that he had by listening to the tapes.” Id., 182 F.3d at 73. The district judge excluded the evidence, emphasizing the lack of an error rate and that, under Rule 702, the testimony would not assist the trier of fact. Id., 182 F.3d at 73. The defendant appealed his conviction, alleging that the trial judge erred in excluding the expert witness. The First Circuit concluded that it was within the trial court’s discretion to apply the Daubert test in considering the admissibility of this testimony. Id., 182 F.3d at 73. The Court also stated that it was within the discretion of the trial judge to conclude that the testimony would not assist the trier of fact, irrespective of the application of the Daubert test. Id., 182 F.3d at 73.

In Irvine, the First Circuit Court of Appeals reviewed the district court judge’s admission of a damages expert. Irvine v. Murad Skin Research Laboratories, 1999 U.S. App. Lexis 29846 (1st Cir. 1999). In this case, the trial judge allowed the plaintiff’s expert to testify regarding loss of future profits. On appeal the defendant alleged that the trial judge erred when not striking the expert’s testimony, contending that the expert’s testimony was unreliable since the expert based his calculations of lost profits only on the assumption that the defendant’s product made up 100% of the plaintiff’s sales. Initially, the First Circuit focused on the standards of Daubert/Kumho, stating that this type of expert testimony is subject to a Daubert review, that the trial judge has broad latitude in determining the admissibility of an expert, and that the trial judge’s decision will only be reversed for an abuse of discretion. Irvine, 1999 U.S. App. Lexis 29846 at *18. However, for the remainder of the opinion, the Court did not discuss the factors used by the judge to admit the testimony, the qualifications of the expert, or the reliability of his methodology. Rather, the Court reviewed the expert’s testimony to determine whether the expert’s calculations were based on adequate factual data. The First Circuit ultimately agreed with the defendant and remanded the case for a new trial, concluding that since there was no evidence to establish the percentage of income derived from the defendant’s products, the “testimony was unreliable.” Irvine, 1999 U.S. App. Lexis 29846 at *20. Thus, the Court used the “reliability” factor which is at the heart of the gatekeeping process, but its decision was based essentially on the lack of reliability of the factual foundation of the testimony, rather than the Daubert factors such as testability, publication, error rate or general acceptance.

VI. Conclusion

In the past seven years the Supreme Court has changed the fundamental role of trial judges by expanding, in Daubert, the analyses by which trial judges admit or exclude expert testimony and by broadening, in Kumho, the scope of testimony subjected to this kind of review. Trial judges have used a pre-trial Daubert/Kumho hearing to assist in determining the admissibility of expert testimony and have turned to other admissibility standards such as Fed. R. Evid. 702 (whether the testimony assists the trier of fact) and Fed. R. Evid. 403 (whether the testimony will confuse the jury) to exclude or admit testimony without turning to the complicated format introduced in Daubert and expanded in Kumho. In turn, appellate courts since Kumho have focused on whether the trial judge abused his discretion in determining admission and, in some cases, have determined whether, without focusing on the Daubert factors, the expert testimony satisfied other evidentiary rules, such as whether there was an adequate factual foundation for the expert’s testimony. Practitioners should focus on the reliability of the expert testimony, and should be prepared to support or oppose admission based on a reliability analysis that is directly tailored to the specific issues and opinions involved in the case. Irvine, 1999 U.S. App. Lexis 29846 at *17 (“trial court has ample discretion in devising the appropriate criteria for its determination on a case by case basis”). Practitioners should also carefully follow proposed changes to the Federal Rules of Evidence which are currently undergoing review by the Supreme Court and which, if adopted, would essentially codify the Daubert and Kumho decisions.