We’ve all seen the expert witness take the stand in movies or on television: wearing a sharp suit jacket and probably looking condescendingly over the rims of her glasses on more than one occasion.
The attorney who hired her asks her opinion and the testimony she gives is exactly what the jury needed to hear to convict the criminal or bankrupt the businessman. In real trial practice today, expert witnesses are often an expensive but necessary evil when difficult questions of causation or damages arise. What is often overlooked in media portrayals is the pre-trial hurdles an attorney must jump through to get the expert witness on the stand. Before an expert can testify at trial, he or she must be vetted by the judge in a proceeding commonly known as a Daubert hearing. Understanding the standards applied in these hearings can be crucial to the success of a case.
For the sake of brevity, this blog addresses only federal court cases. Admissibility of expert testimony in federal courts is governed by Federal Rule of Evidence 702. Generally, witnesses can only give “lay” opinions on topics such as the speed a vehicle was going or a person’s emotional state. But, if a witness qualifies under Rule 702 as an “expert,” he or she is allowed to give their opinion on issues requiring “scientific, technical, or other specialized knowledge.” Under FRE 702, the witness must be an expert in their field and be found to have applied their methods reliably to the facts of the case. The testimony sought to be admitted must be helpful to the fact finder and based on reliable methodology, using information sufficient to support its findings.
Prior to the landmark case of Daubert, the standard applied by the majority of courts in admitting expert testimony came from the case of Frye v. United States[1]. This was a stringent standard, requiring that the basis for an expert’s opinion be a “technique [which] is ‘generally accepted’ as reliable in the relevant scientific community.”[2] Strict application of the “general acceptance” requirement had resulted in the exclusion of testimony regarding many newly-developed scientific methodologies, such as DNA testing. The Supreme Court granted certiorari in Daubert to resolve a sharp circuit split that had developed when courts started rejecting the “general acceptance” standard of Frye.
Between the time of Frye’s decision and Daubert’s filing, a critical event occurred: the Federal Rules of Evidence were published and adopted by a large number of states. This raised the question of whether the Rules incorporated or replaced Frye. The Court’s answer in Daubert was emphatic and changed the landscape of expert testimony at hearing: “Given the Rules' permissive backdrop and their inclusion of a specific rule on expert testimony that does not mention “‘general acceptance,’” the assertion that the Rules somehow assimilated Frye is unconvincing.”[3]
However, not wanting to leave the lower courts to interpret the FRE without guidance, the Daubert opinion went on to provide considerations for evaluating expert testimony under FRE 702. Daubert thus established the two-fold test applicable in determining whether the requirements for expert testimony admissibility were met in a particular case: a lower court must ensure that the testimony being offered “both rests on a reliable foundation and is relevant to the task at hand.”[4]
While a few states still use the Frye standard or a combination of the two, Nebraska, South Dakota, and Iowa have all adopted the Daubert standard.[5] The 8th Circuit has addressed the “reliable foundation” question and determined that, where there are questions as to whether the testimony is reliable, they go to the weight to be given the testimony, rather than acting as a bar to the testimony coming in at all.[6] This allows more expert testimony to be heard by juries in this circuit than in states where issues as to his or her reliability prevent the expert witness from testifying at trial.[7] Until this circuit split is resolved by the Supreme Court, parties relying on expert testimony are far better off in courts which allow the testimony to be heard.[8] It is a consideration not to be overlooked when deciding where to bring an action, particularly if it is against an entity with a nationwide presence.
Here at Goosmann, we regularly handle complex litigation cases which require expert testimony. We have a solid, working understanding of the hurdles which must be jumped in order to get expert testimony in front of a jury. If you need litigation assistance in the Siouxland area, give us a call at 712-226-4000.
[1] 54 App. D.C. 46, 293 F. 1013 (1923).
[2] Daubert, at 584, quoting Frye, 54 App. D.C. at 47, 293 F. at 1014.
[3] Daubert at 589.
[4] Id. at 597.
[5] In fact, all states in the 8th Circuit have adopted Daubert, except North Dakota. Farm Bureau Mut. Ins. Co. of Ark., Inc., v. Foote, 14 S.W. 3d 512 (Ark. 2000); Ganrud v. Smith, 206 N.W.2d 311 (Iowa 1973); State v. Mack, 292 N.W. 2d 764 (Minn. 1980); House Bill 153, signed into law March 28th, 2017 (repealing Section 490.065 RSMo and replacing it with admissibility standards mirroring those of Daubert); Schafersman v. Agland Coop., 631 N.W. 2d 862 (Neb. 2001); State v. Hofer, 512 N.W.2d 482 (S.D. 1994). North Dakota expert testimony admissibility is governed by North Dakota Rule of Evidence 702. State v. Hernandez, 707 N.W. 2d 449 (N.D. 2005).
[6] Adams v. Toyota Motor Corp., 867 F.3d 903, 910 (8th Cir. 2017), as corrected (Aug. 14, 2017); Johnson v. Mead Johnson & Co., LLC, 754 F.3d 557 (8th Cir. 2014) (“As long as the expert’s scientific testimony rests upon “good grounds, based on what is known” it should be tested by the adversary process with competing expert testimony and cross-examination, rather than excluded by the court at the outset.”).
[7] In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 745 (3d Circ. 1994) (“Daubert’s requirement that the expert testify to scientific knowledge—conclusions supported by good grounds for each step in the analysis—means that any step that renders the analysis unreliable under the Daubert factors renders the expert’s testimony inadmissible.”) (emphasis in original).
[8] The 7th, 8th, and 9th Circuits have held that expert testimony is admissible, even given reliability concerns, so long as it meets the Daubert standards, and the factfinder can then determine the appropriate weight to give the evidence. Manpower, Inc., v. Insurance Company of Pennsylvania, 732 F.3d 796 (7th Cir. 2013); Johnson v. Mead Johnson & Co., LLC, 754 F.3d 557 (8th Cir. 2014); United States v. Chischilly, 30 F.3d 1144 (9th Cir. 1994). The 2nd, 3rd, 6th, and 10th Circuits had adopted the “any step” exclusionary approach. Amorgianos v. Amtrak, 303 F.3d 256 (2d Cir. 2002); In re Paoli R.R. Yard PCB Litig., 35 F.3d 717 (3d Circ. 1994); Tamraz v. Lincoln Elec. Co., 620 F.3d 665, at 667 (6th Cir. 2010); AG of Oklahoma v. Tyson Foods, 565 F.3d 769 (10th Cir. 2009).
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