Daubert: The Emerging Profile
By: Tyron Elliott, Esq.
With impact and pervasiveness reminiscent of the way the Miranda ruling affected criminal law, the decision in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed 2d 469, is changing the landscape of civil litigation. It began with what seemed to be a reasonably narrow change in the way scientific expert testimony would be considered by the Federal courts. It gave out guidelines for the admission of testimony regarding testing of the theory or technique used, examination of peer review and publication, examination of the actual error rate and examination of the general acceptance of the theory in the scientific community. As the progeny of Daubert began to emerge, however, the extent and implications of the ruling have spread like ripples on a pond. Some decisions have carved out small but definite distinctions in its applications and others have made great leaps in expanding its scope. With awareness that the impact of Daubert is still in flux this article will examine how the Supreme Court and some of the Circuit Courts have refined and shaped the impact of this case in the few years since its arrival.
Any complete analysis requires a reading of Daubert itself but the principal effect of the case was to toss out the old standard of analysis for expert testimony set forth in Frye v. United States, 293 F. 1013 (CADC 1923) and change not only the rules for admission of such testimony but the duty of the trial judge in deciding admissibility. In Frye the judge had only to determine if the proffered opinion was of a type that had found acceptance in a relevant field of study by the general scientific community. Frye's broad standard was narrowed by Daubert and the judge became the arbiter of all aspects of validity using the Daubert guidelines. Under Frye the judge simply had to decide if other scientists had used this approach. Under Daubert the judge becomes the scientist and must make the threshold decision as to whether the particular opinion is " based on valid scientific reasoning and principles".
Both Daubert and Frye standards had to fit into the mandates of Rule 702 of the Federal Rules of Evidence which states that 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.
It is not enough, then, just to look at the Daubert standards and try to see if the expert testimony provides a fit. Daubert standards are now considered by many courts as one prong of a three pronged test the expert must pass in order to have that expert's testimony allowed in evidence. First, the expert must be qualified to testify competently regarding the matters he intends to address, that is, he must prove that he is, in fact, an expert. Second, his methods must meet the Daubert standards. Third, the testimony must assist the trier of fact to understand the evidence or to determine a fact in issue and thus comply with Rule 702. See City of Tuscaloosa, et al. v. Harcos Chemicals, Inc., et al. 158 F.3d 548 (11th Cir. 1998).
In the beginning many Circuit Courts sought to limit the application of Daubert by simply concluding that it applied only to scientific expert testimony. [ See Iacobelli Constr., Inc. v. County of Monroe, 32 F. 3d 19 (2nd Cir. 1994) and Tamarin v. Adam Caterers, Inc., 13 F.3rd 51]
One of the better statements of the use of the common sense approach is found in Sorensen v. Miller, 97 F.3d 1452 ( 6th Cir. 1997) when, quoting Berry v. City of Detroit, 25 F.3d 1342 ( 6th Cir. 1994) the court said:
If one wanted to explain to a jury how a bumblebee is able to fly, an aeronautical engineer might be a helpful witness... On the other hand, if one wanted to prove that bumblebees always take off into the wind, a beekeeper with no scientific training at all would be an acceptable expert if a proper foundation were laid for his conclusions.
As we go through the permutations of Daubert it is well to remember that in many instances this is still a good rule. Most of the innocent approach to nonscientific expert evidence changed, however, with the decision in Kumho Tire Co. v. Carmichael, 199 S.Ct. 1167, 143 L.Ed.2d 238 (1999). In Kumho the Supreme Court said : " We conclude that Daubert's general holding setting forth the trial judge's general ' gatekeeping ' obligation applies not only to testimony based on 'scientific' knowledge, but also to testimony based on 'technical' and other specialized knowledge." Anticipating that the question would then be raised as to whether the Duabert factors would also have to be considered in nonscientific cases the court went on to state: " We also conclude that a trial court may consider one or more of the more specific factors that Daubert mentioned when doing so will help determine that testimony's reliability. But, as the Court stated in Daubert, the test of reliability is 'flexible', and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination." Many cases prior to Kumho are of little value because they took the " nonscientific approach". And as those that did are making their way to circuit courts they are being reversed in light of Kumho. ( See Jaurequi v. Carter Manufacturing Co. 173 F.3d 1076 (8th Cir. 1999)]
The statement in Kumho about broad latitude being given to district courts was an echo of the other landmark interpretive decision issued in 1997 when the court held in General Electric Co. v. Joiner, 522 U.S. 136,143 that the courts of appeal are to apply the " abuse of discretion" standard when reviewing a district court's reliability determination. The latter ruling simply means that, for the practitioner, the ruling of the district judge is not going to be overturned unless it is patently erroneous. The chance for a second look has been greatly diminished.
One other pronouncement in Kumho that is often overlooked is the brief explanation about applying Daubert's " general acceptance factor", as they term it, to what may be called junk science. The court said that there is no need to worry about applying the standards if the field or discipline itself lacks reliability. As examples the court cited the fields of astrology and necromancy. Even if the usual methodologies in those fields are followed the fields aren't reliable per se. In Kumho, then the court set up a test in the nature of a pre-Daubert exam of the field itself. It that is found unreliable by the court then no further inquiry as to Daubert standards is necessary.
Another issue with lasting implications addressed in Kumho is how the expert may be determined to be reliable. The court pointed out that in some cases the reliability of the particular expert testimony may be based upon some scientific foundation and the training, skill, or knowledge of the expert in that foundation must be examined. In other cases the relevant reliability concerns may focus " upon the personal knowledge and experience" of the expert. Circuit courts have, at times, struggled with that distinction.
A good example of the way the circuit courts have wrestled with these issues is found in Michigan Millers Mutual Insurance Insurance Corporation v. Benefield, 140 F.3d 915 (11th Cir. 1998), a case decided while Kumho was wending its way to the Supreme Court. In Michigan Millers the district court had stricken the testimony of an expert on the origin of a fire. The appellants tried to argue that, since their expert testified on the basis of his experience and skill, the Daubert criteria did not apply. The Eleventh Circuit first found that, no matter what the expert claimed, his testimony was science based, rather than experience based. They found that the expert claimed to be an expert in fire sciences and had used the scientific method in making his observations. They observed that the use of " science" to explain how something occurred has the potential to carry great weight with a jury.
One the standard was set the court then moved to review the analysis of the trial judge in looking at the expert's opinions. Using the Joiner language the court found that even if there is data properly gathered the district court may find that the expert failed to make a " rational" connection between the data and his opinion. The language cited from Joiner states: " Nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert."
What Kumho and following cases like Michigan Millers show us is that the trial court may first look at the field itself and decide that it is or is not reliable per se. If it is the latter, discussion ends and the evidence is excluded. Assuming that hurdle is cleared the court may then decide if the field is such that it requires " scientific" testimony. If it is not one that requires scientific testimony the court may then examine the individual expertise of the witness based on experience, skill or training. If it does require scientific testimony the court must decide if there is a reliable nexus between the data and the opinion to be offered. If that reliability is not shown, as in Michigan Millers, then the evidence can be excluded at that stage.
For the opposite result where the court found the expert on cause and origin of a fire properly based his opinion on his " experience and training" see Talkington v.Cricket BV,152 F.3d 254 (4th Cir. 1998).
The Tenth Circuit has taken a similar approach in applying strict nexus requirements. In Mitchell v. Gencorp, 165 F.3d 778 (10th Cir. 1999) the plaintiffs tried to prove exposure to products such as Toluene, Xylene, Hexane and Haptene by a warehouse worker caused chronic myleogenous leukemia. The court first recognized that under Pennsylvania law the plaintiff, in a toxic tort case, must show the levels of exposure that are actually harmful to humans in general and then show his own levels of exposure before recovery can be had. The court found the experts failed to do this and thus the " good grounds" test was not met. The court quoted from Rosen v. Ciba-Geigy Corp, 78 F.3d 316,318(7th Cir. 1996) summing up its attitude by saying: " Under the regime of Daubert ...a district judge asked to admit scientific evidence must determine whether the evidence is genuinely scientific, as distinct from being unscientific evidence offered by a genuine scientist." For a similar result see Moore v. Ashland Chemical, Inc. et al., 151 F.3d 269 (5th Cir. 1998). The dissent in Moore laments, however, the fact that the court seems to be saying that a clinical medical expert, correctly using and applying generally accepted clinical medical methodology may not express an opinion that a particular chemical caused, aggravated, or contributed to a person's disease unless that opinion is corroborated by hard scientific methodology.
This focus on the nexus between the methodology and the opinion, particularly an opinion about causation, is a popular Daubert test. The Eighth Circuit, in the case of Blue Dane Simmental Corporation v. American Semmental Association, et al., 178 F.3d 1045 (1999) excluded the testimony of an expert economist that the causes of market fluctuation of the price of the Simmental cattle could be shown by before-and-after economic modeling. The court pointed out that his method did not consider all the " independent variables" that could affect the conclusion and that he could not show other economists used this method to determine causation. There was also a lack of articles or papers showing this method had ever been used. Citing Joiner, the court said there was simply too great an analytical gap between the data and the opinion, a phrase we will hear often.
Even though providing rigorous standards, Daubert cannot be used in all complex scientific cases to exclude testimony. In Kennedy v. Collagen Corporation, 161 F.3d 1226 (9th Cir. 1998) the facts seemed ready made for the plaintiff's hopes to be dashed by a Daubert exam and, at the district level, they were. But the circuit court reversed and found that the expert should have been allowed to have his say. The plaintiff alleged that she had developed atypical systemic lupus erythematosus from the injection of a product called Zyderm, a substance made from the skin, tendons, and connective tissue of bovine animals. The product was designed to remove wrinkles. The circuit court made a narrow distinction in its reversal of the lower court. The district court had excluded the testimony because the expert could not produce scientific studies showing that Zyderm caused lupus and because there was an absence of consensus in the medical community on whether it did. In a point that will be important for future litigants the court said the trial judge failed to distinguish between the threshold question of admissibility and the persuasive weight to be accorded such testimony by a jury. In taking this view the circuit court reached the flip side of the Michigan Millers case. In effect, they said that if you examine the methodology of the expert in this case it is sound enough to let a jury decide if proximate cause is there even though it may not be enough to prove causation. It does not have to prove causation. In this case the expert showed the ingredients of Zyderm induced the body to produce autoimmune antibodies that are the hallmark of autoimmune disease and backed that up with scientific studies. He then examined the patient and showed through the timing of her disease that she had elevated levels of antihistone antibodies commonly found in patients with a condition known as " drug-induced lupus". The circuit court particularly faulted the district court for emphasizing the lack of epidemiological studies, pointing out that other circuits have allowed scientists to reach conclusions as to causation without these kind of studies and they faulted his objection to the expert giving an opinion as to causation which they say is permitted by other circuits as long as it is based upon methods reasonably relied upon by experts in their fields. See, e.g, Zuchowicz v. United States, 140 F.3rd 381,387 (2nd Cir. 1998).
When their theories are exposed to the Daubert test some experts may well ask "what am I doing here?" In Black v. Food Lion, 171 F.3d 308 (5th Cir. 1999) the plaintiff's expert was trying to prove her fall in the defendant's store caused hormonal damage that led to fibromyalgia. After a review of the literature which shows fibromyalgia to be of unknown etiology and after an observation of other literature showing no link between trauma and fibromyalgia the court painted the expert into the corner of having said she had eliminated all other causes so this had to be it. The court delivered the coup de main by saying: " This is not an exercise in scientific logic but in the fallacy of post-hoc prompter-hoc reasoning, which is as unacceptable in science as in law." In many ways it seems that Daubert is giving district courts the incentive to apply stricter standards of logic, correctly or not.
The latest decision of the Supreme Court continues to give little comfort to those who would, by pleading ignorance, try to escape some of the harshness of Daubert. In Weisgram v. Marley Co., Case No. 99-161, decided February 22, 2000, the court dealt with a situation where the district court was lax in making the Daubert exam or applying the Daubert rulings even though Daubert challenges were being made by the other side all during the proceedings. When the circuit court found the Daubert standards were not met the plaintiff argued to the Supreme Court that he would have shored up his case by other means if he had known his expert testimony would be thrown out under Daubert. In effect, he said the district judge didn't enforce Daubert so why should I have to meet the tests in retrospect. The Supreme Court said: " Since Daubert, moreover, parties relying on expert evidence have had notice of the exacting standards of reliability such evidence must meet… It is implausible to suggest, post Daubert, that parties will initially present less than their best expert evidence in the expectation of a second chance should their first try fail… A litigant's failure to buttress its position because of confidence in the strength of that position is always indulged in at the litigant's own risk."
In summary, it appears that the application of Daubert is gradually become more precise and, perhaps, more rigorous. The attorney contemplating a Daubert challenge must ask the same questions of his case and his witness as the circuit courts are asking and be prepared to meet a challenge to the validity of the field of expertise of his expert, be prepared to prove the qualifications of his expert by experience where appropriate and by training where appropriate, and, finally he must be comfortable that the opinion his expert is about to offer is based on some literature in that field somewhere and otherwise provides the analytical fit the court will be seeking. The attorney needs to prepare a Daubert checklist for each case.
Daubert may well be considered a minefield newly laid for the advocate but at least the careful practitioner can now learn where most of the big ones are buried.