Admissibility of Expert Testimony in Federal Court
Both Utah and Federal District Courts have complicated rules regarding the admission of opinion testimony from expert witnesses. Today, we will focus on the Federal Rules of Evidence, leaving the law applicable to presenting expert opinion in Utah District Court for another day.
Pursuant to Federal Rules of Evidence Rule 702, expert testimony is only admissible if “the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue” Fed. R. Evid. Rule 702. As the Supreme Court has explained, “[t]his condition goes primarily to relevance.” Daubert v. Merrell Dow Pharms., 509 U.S. 579, 591 (U.S. 1993). In other words, does the proposed testimony have the reliability necessary to avoid misleading a jury, and does it relate to the facts of the case in a way that will help the jury to better decide the case?
Under the rules established in the Supreme Court in the Daubert and Kumho Tire opinions, the trial court has a "gatekeeper" function under Federal Rule of Evidence 702. Goebel v. Denver & Rio Grande Western R.R., 215 F.3d 1083, 1087 (10th Cir. Colo. 2000) (citing Daubert, 509 U.S. at 591 and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). “This gatekeeper function requires the judge to assess the reasoning and methodology underlying the expert's opinion, and determine whether it is scientifically valid and applicable to a particular set of facts.” Id.
Much of the extensive (and often oppressive) litigation over the admissibility of expert testimony focuses on whether the expert’s testimony can pass muster with the trial court judge through this “special gatekeeping obligation” imposed on the trial judge to “ensure that an opinion offered by an expert is reliable.” United States v. Velarde, 214 F.3d 1204, 1208 (10th Cir. 2000) (quoting United States v. Charley, 189 F.3d 1251, 1266 (10th Cir. 1999), cert. denied, 528 U.S. 1098 (2000)). In many cases, Rule 702’s reliability requirement serves the function of “mak[ing] certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire, 526 U.S. at 152. Put another way, expert evidence must meet “exacting standards of reliability” in order to be admitted. See Weisgram v. Marley Co., 528 U.S. 440, 455 (2000).
Admitting only proper expert testimony is particularly critical in jury trials, since juries may afford undue weight to the pronouncements of a witness advertised as an "expert." Sharp v. Chase Manhattan Bank USA, N.A. (In re Commercial Fin. Servs.), 350 B.R. 559, 565 (Bankr. N.D. Okla. 2005). However, it is unclear whether the training and experience of a federal court judge gives the court the necessary understanding of complicated testimony based on “scientific, technical, or other specialized knowledge” to determine whether a particular opinion meets the “exacting standards of reliability” required by the rules in order to be admitted. See Weisgram v. Marley Co., 528 U.S. 440, 455 (2000).
To assist in this difficult task, the district court judge has been given some guidance. The judge has been told to assess factors such as “(1) whether the opinion has been subjected to testing or is susceptible of such testing; (2) whether the opinion has been subjected to publication and peer review; (3) whether the methodology used has standards controlling its use and known rate of error; (4) whether the theory has been accepted in the scientific community.” Truck Ins. Exchange v. MagneTek, Inc., 360 F.3d 1206, 1210 (10th Cir. 2004).
The party seeking to offer the expert testimony bears the burden of demonstrating that the expert’s proposed testimony meets the requirements discussed above. See In re Breast Implant Litig., 11 F. Supp. 2d 1217, 1222 (D. Colo. 1998) (“The Plaintiffs have the burden of proving that the testimony of their expert witnesses is admissible pursuant to Fed. R. Evid. 702 and the standards set forth in Daubert.”); see also Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 970 n.4 (10th Cir. 2001) (proponent of an expert bears the burden of demonstrating admissibility). The United States Supreme Court has “held that . . . the testimony of all experts whose data, principles, methods, or application are called into question must be assessed for relevance and reliability as a precondition to admissibility.” Kinser v. Gehl Co., 184 F.3d 1259, 1271 (10th Cir. 1999).
Often when litigating Daubert motions in federal court, there is a sense that the court and the parties are forced to engage in a process that is somewhat specious. The idea that lawyers can properly argue and judges can accurately assess, for example, the qualifications of one cardiologist based on testimony from another cardiologist (often one who has been hired by an adverse party specifically to seek disqualification of the opposing expert) is questionable. There is some relief for the lawyers when the parties can get an evidentiary hearing and at least hear the testimony directly from the experts. However, in the end, arguments must still be made and the judge must ultimately rule. Having argued these motions before, I can personally attest that it is overwhelming to approach an entirely new discipline and argue intelligently before the court regarding issues based on a couple of weeks of research and a few days of cramming with my expert.
There is some argument for a more relaxed application of the Daubert standard, and some courts have issued opinions that recognize the difficult assumptions inherent in Rule 702 motions. The Tenth Circuit Court of Appeals “recognizes that the district court need not ‘recite the Daubert standard as though it were some magical incantation, or apply all of the reliability factors suggested in Daubert or Kumho.’ ” Goebel v. Denver and Rio Grande Western Railroad Company, 215 F.3d 1083, 1089 (10th Cir.2000) (quoting Ancho v. Pentek Corp., 157 F.3d 512, 518 (7th Cir.1998)). As United States District Court Judge Dee Benson has previously noted “[t]he gatekeeper inquiry under Rule 702 is ultimately a flexible determination, keeping in mind that rejection of expert testimony has been the exception rather than the rule.” Ruff v. Ensign-Bickford Indus., Inc., 171 F. Supp. 2d 1226, 1232 (D. Utah 2001). “What is necessary is that the expert arrived at his…opinion by relying upon methods that other experts in his field would reasonably rely upon in forming their own, possibly different opinions.” Id.
Litigating admissibility of expert testimony is a difficult and often highly technical task. Attorneys whose practice includes a significant focus on litigation in areas where challenges to expert testimony are common (such as product liability, commercial litigation or medical malpractice) often feel constantly immersed in these disputes. However, finding a lawyer with experience presenting and defending expert testimony is critical in finding the right lawyer to handle your case. When looking for a lawyer to review your case, make sure you ask what experience they have with the substantive area in dispute and their experience dealing with expert witnesses that may be required.