Key Factors In-House Counsel Need To Know When Selecting A Forensic Expert - Part I

Thursday, January 1, 2009 - 01:00

(Editor's note: This is the first part of a two-part article.)


For corporate counsel to select and hire a professional to offer expert witness services, it is critical to be familiar with not only the statutory framework governing the admissibility of expert witness testimony (e.g., the Federal Rules of Evidence and the Federal Rules of Civil Procedure), but also the case law that brought the system to where it is today.

Juries often are presented with testimony from experts, who interpret evidence using knowledge beyond the purview of the average lay person. Measures are therefore in place to protect the integrity of the fact-finding process from unreliable expert testimony. This task belongs to the trial judge, though the judge's role and the standard of evidentiary review have changed. The most important of these changes came with the Supreme Court's 1993 decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. 1In order to fully understand Daubert , it is important to understand its predecessors.

The Frye "General Acceptance" Test

Since the 1920s, the admissibility of expert scientific evidence was governed by the " Frye test." Frye v. United States 2included expert witness testimony in an early form of a lie detector test. Government counsel objected on grounds that the test was experimental and unreliable. The Washington D.C. Court of Appeals sustained that objection, declaring that for expert testimony to be admitted, its basis "must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Although courts widely adopted the Frye test, the "general acceptance" standard was often criticized for being too restrictive, disqualifying expert testimony based on novel, but relevant scientific approaches.

Daubert - The Trial Judge as "Gatekeeper"

The Daubert plaintiffs alleged that a mother's prenatal ingestion of a prescription drug caused birth defects. They offered testimony from several experts, based on animal studies, chemical structure analyses and unpublished "reanalysis" of previously published human statistical studies. The trial court cited Frye in determining that this evidence did not meet the applicable "general acceptance" standard. The Court of Appeals agreed and affirmed.

On appeal to the Supreme Court, the plaintiffs claimed that the 1973 adoption of the Federal Rules of Evidence superceded the Frye test. They noted that Federal Rule of Evidence 702 (the rule broadly governing the admissibility of expert testimony) did not incorporate a "general acceptance" standard, instead stating:

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.3

In Daubert , the Supreme Court ruled that the Federal Rules of Evidence, not Frye, provide the standard for admitting expert scientific testimony. The Court further noted that although Rule 702 had relaxed the traditional barriers to "opinion" testimony, it still provides appropriate protection by assigning to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. Among the factors cited as bearing on this determination, the Court included:

• Whether the theory or technique in question can be (and has been) tested;

• Whether it has been subjected to peer review and publication;

• Its known or potential error rate;

• The existence and maintenance of standards controlling its operation; and

• Whether it has attracted widespread acceptance within a relevant scientific community.

While subsequent cases relied on the " Daubert factors" as a sort of checklist, it has since been established that Daubert only mandates two tests that must be satisfied under Rule 702:

• Relevance - The evidence assists the trier of fact in determining a fact at issue.

• Reliability - The testimony must be "derived by the scientific method" and "supported by appropriate validation," thus being "grounded in the methods and procedures of science" and constituting "scientific knowledge" under Rule 702.

Since Daubert , the trial judge has been described as acting in the role of gatekeeper when considering the admissibility of expert evidence. It remained unclear whether the Court intended this role to extend to other-than-scientific expert evidence. The 1999 case of Kumho Tire Co. v. Carmichael 4clarified this issue.

Kumho Tire - Applying the Principles of Daubert to Non-Scientific Expert Testimony

In Kumho Tire , the plaintiffs asserted that a fatal accident had been caused by a blowout resulting from a tire defect, offering the testimony of a tire failure analyst. Based upon his physical inspection of the tire and the absence of certain specific, physical symptoms of tire abuse, the expert testified the blowout must have been caused by a defect. The District Court granted the defendant's motion to exclude this testimony on the grounds that the expert's methodology failed to satisfy Rule 702. It cited four factors discussed in Daubert - testing, peer review, error rates, and "acceptability" in the relevant scientific community - as arguments against the reliability of the expert's methodology.

The Eleventh Circuit reversed the District Court, asserting that Daubert was limited to the scientific context, and thus not applicable to this expert's testimony, which it characterized as skill or experience based. However, the Supreme Court overruled the Circuit Court, citing Rule 702's requirement that expert testimony embody "scientific, technical, or other specialized knowledge," and thus, that Daubert's gatekeeping principles extend to all expert testimony, scientific or not. It favored granting discretion to district courts regarding the substance of their Daubert/Kumho analyses and to the procedures through which evidentiary issues are resolved.

Experts should recognize that their oral testimony and/or written reports may be challenged on Daubert grounds at several different points during the proceeding. They should understand when Daubert issues may arise during the course of litigation and keep it in mind not only when preparing the report but also when preparing for deposition and trial.

Specifically, a testifying expert can expect to encounter Daubert issues/ challenges at four discrete points in a civil matter, namely during:

1. Outset of most civil actions in pre-trial conferences;

2. Discovery/deposition proceedings;

3. "Motion to strike" hearings; and

4. Submission of expert's report pursuant to rule 702 of the Federal Rules of Evidence.


Although experienced expert witnesses are quite familiar with the requirements of Daubert and the Federal Rules, it is important for corporate counsel to remain aware of the issues. This is of particular importance throughout the selection process.

Your expert should provide full disclosure as to theories and methodology in preparing his or her report. There may not be an opportunity to supplement a report that provides too little at the onset. Discuss with your expert whether the work described in his or her report could be duplicated by another expert in the same field. Finally, ensure that your expert is thorough in disclosing all of the material considered, and ask your expert to address the obvious objections by specifying the reasons competing techniques were rejected, and why they deemed unhelpful or otherwise did not rely on data that might have been considered pertinent.

This article was intended to supply corporate counsel with a brief overview of the current Daubert regime. In Part II of this article, we will address in more detail the expert's qualifications, content of the expert's report and other factors that may give rise to a Daubert challenge. 1Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

2Frye v. United States, 54 App. D. C. 46, 293 F. 1013 (1923).

3 It should be noted that Federal Rule 702 was amended, in part as a result of the Daubert debate, to read as follows: "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".

4Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).

John J. Scott, MBA, CPA, ABV, ASA, and Hutch Hubbard are Directors in RSM McGladrey Inc.'s New York office.

Please email the authors at or with questions about this article.