Daubert Standards And Hearings

By IMS ExpertServices ExpertServices

This outline presents the core concepts that an expert witness should know about Daubert and its requirements.

  1. The United States Supreme Court has established new flexible guidelines for admission of expert opinion; the guidelines emphasize the role of judges as gatekeepers, keeping from juries’ unreliable expert opinion and allowing into evidence reliable opinion.
  2. Federal Rule of Evidence 702, which deals with the testimony of experts, provides 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.”
  3. The Daubert/Kumho Standards
    • In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the U.S. Supreme Court emphasized the court’s gatekeeping role and held that expert testimony based in science can be excluded based on judicial determination of reliability.
    • The non-exhaustive list of factors in Daubert include whether a “theory or technique … can be (and has been) tested” whether the theory “has been subjected to peer review and publication” whether, with respect to a particular technique, there is a high known or potential rate of error whether there are “standards controlling the technique’s operation” and whether the theory or technique enjoys “general acceptance” within a “relevant scientific community.
    • The decision on what is excluded cannot be based on the conclusions reached by the expert.
    • In Kumho Tire Company v. Carmichael, 526 U.S. 137 (1999, the Court clarified that this gatekeeper function applies to all expert testimony, not just testimony based in science.
    • The Daubert factors are not a definitive checklist or test, Kumho explained. The inquiry is very flexible. The goal is to exclude unreliable expert testimony.
    • This gatekeeping requirement is to ensure that the proffered expert exercises the same intellectual rigor in the courtroom as does an expert in the relevant field. Kumho instructs us that relevant reliability concerns may focus upon personal knowledge or experience.
    • Kumho, 526 U.S. at 148-151, experts of all kinds tie observations to conclusions through the use of what Judge Learned Hand called general truths derived from … specialized experience. Hand, Historical and Practical Considerations Regarding Expert Testimony,*149 15 Harv. L.Rev. 40, 54 (1901).  Whether the specific expert testimony focuses upon specialized observations or not, the specialized translation of those observations into theory, a specialized theory itself, or the application of such a theory in a particular case, the expert’s testimony often will rest “upon an experience confessedly foreign in kind to [the jury's] own.” Ibid. The trial judge’s effort to assure that the specialized testimony is reliable and relevant can help the jury evaluate**1175 that foreign experience, whether the testimony reflects scientific, technical, or other specialized knowledge.
    • Daubert itself is not to the contrary. It made clear that its list of factors was meant to be helpful, not definitive. Indeed, those factors do not all necessarily apply even in every instance in which the reliability of scientific testimony is challenged. It might not be surprising in a particular case, for example, that a claim made by a scientific witness has never been the subject of peer review, for the particular application at issue may never previously have interested any scientist. Nor, on the other hand, does the presence of Daubert’s general acceptance factor 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.
  4. Strategic Considerations
    • Do not invent methodologies specifically for the litigation, unless there is special reason to do so. Courts are suspicious of such newly created methodologies.
    • It may be difficult to determine if one is rendering a scientific opinion (and thus more subject to the specific Daubert factors) or one which is based on experience and knowledge (and thus more subject to the Kumho flexibility). When are, for example, peer-reviewed analyses needed for a particular point?  Expert should – at the outset of a project – discuss with counsel the issues relevant to the Daubert standards.
    • No expert wants his or her opinion to be excluded from admission into evidence. The exclusion will, no doubt, be disclosed in any later cases in which the expert participates. The effort to work with counsel on admissibility is at least as important to the expert as to counsel.
  5. The Daubert Process
    • A party may request the court to hold a Daubert hearing and the hearing may take place before trial or during trial.
    • The focus will be on methodology and the factors relevant under Daubert/Kumho and not on whether the conclusions are correct.
    • The expert has no control over when or how this takes place.
    • Strategic Considerations: the comprehensiveness and tightness of the expert’s report will contribute to one avoiding a Daubert hearing. The expert should keep in mind that the testimony in a Daubert hearing, if inconsistent with trial testimony, may be used to the expert’s disadvantage during trial.

This outline was written by David Ferleger, an attorney located in Jenkintown, Pennsylvania. His experience includes arguing before the Supreme Court and teaching at the New York University Law School.

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