Assessing Expert Methodology - Daubert: In The Third Circuit And The District Of New Jersey - Part I

Thursday, April 1, 2004 - 00:00

Part II of this article appears in the May 2004 issue of The Metropolitan Corporate Counsel.In a typical federal case, the testimony of a qualified and effective expert is an essential component of a successful trial. In the decade since the United States Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc.,1 the Court has expanded the gatekeeper role of the federal trial courts to a broad spectrum of civil litigation, as the Third Circuit and district courts have refined the admissibility standard. From the inception of a federal case, a practitioner must anticipate and plan for a proceeding that may determine the outcome - the Daubert hearing.

Federal Rule Of Evidence 702 And The Daubert Decision

In Daubert, the Supreme Court established a detailed standard for a trial court's admission of expert opinion, based in large measure upon the trial judge's evaluation of the scientific foundation of the expert's opinion. Before Daubert, the central authority was the 70-year-old, two-page opinion of the U.S. Court of Appeals for the DC Circuit in Frye v. U.S.2 Frye required that expert testimony be premised upon scientific principle "sufficiently established to have gained general acceptance in the particular field in which it belongs."3 When Frye provided the governing test, the standard for the admission of expert testimony focused upon the question of scientific consensus rather than the quality of the scientific method.

Daubert is an interpretation of Federal Rule of Evidence 702, the language of which signaled a departure from the Frye general acceptance test. When Daubert was decided, the rule provided:

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.

In Daubert, a Bendectin products liability case, the Court considered the admissibility of the testimony of the plaintiff's expert interpreting epidemiological studies by others. The expert's testimony had been rejected by the trial court and the U.S. Court of Appeals for the Ninth Circuit under the Frye standard. The Supreme Court held that the adoption of Rule 703 had effectively overruled the Frye test, "given the Rules' permissive backdrop and their inclusion of a specific rule on expert testimony that does not mention 'general acceptance.'"4 It substituted a case-specific inquiry by the trial judge, applicable not only to "unconventional evidence" but to other scientific testimony.

Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify as to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology properly can be applied to the facts in issue. We are confident that federal judges possess the capacity to undertake this review.5

With that general introduction, the Supreme Court established the following factors for admissibility in the context of the Bendectin issue before it - factors that became the framework of the Daubert test:

1. whether the theory or technique that the expert contends constitutes scientific knowledge has been tested;

2. whether the theory or technique has been subject to peer review and publication (but publication is not dispositive);

3. the known or potential error rate and the existence or maintenance of standards controlling the technique's operation; and

4. "'general acceptance' can yet have a bearing on the inquiry," in the sense that widespread acceptance can be an indicator of reliability, and "a known technique which has been able to attract only minimal support within the community ... may properly be viewed with skepticism."6

The federal trial courts were thus assigned a substantial task, well beyond the parameters of the general acceptance test of Frye: validation of the scientific technique that the expert employs, in its broader application and its case-specific use. In General Electric Co. v. Joiner, decided a few years after Daubert, the Supreme Court underscored the importance of the trial court's gatekeeper role, holding that the district court's determination is subject to an "abuse of discretion" standard on appeal, and approving the exclusion of expert evidence when the data and the opinion are insufficiently connected.7

Yet an important issue remained to be determined: Was Daubert limited to scientific evidence such as the epidemiology at issue in that case, or did it extend to experts in other fields, including those whose methodology was less distinct? The Court answered that question in the affirmative in Kumho Tire Co. v. Carmichael, in which the contested expert was a tire engineer.8 There, the Supreme Court held that the Daubert standard extends to all fields in which experts have technical or otherwise specialized knowledge, and that the test may vary with the scientific, technical or other area of expertise at issue. Daubert's reach is broad indeed.

The drafters of the federal rules amended Federal Rule of Evidence 702 in 2000 to conform to the Supreme Court's definition of the district court's inquiry:

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.9

The rule thus confirmed the trial court's responsibility to understand and critically evaluate the expert's scientific or technical methodology, even when that evaluation could determine the outcome of a case.

The Supreme Court's articulation of general principles was not a comprehensive blueprint for the district court's gatekeeper function; indeed, Daubert was and remains the subject of voluminous commentary and vigorous debate. Few absolute rules apply to a process that is by its terms expert-specific, particularly when that process is governed by an abuse of discretion standard on appeal. However, opinions by the Third Circuit and of several district and magistrate judges in the District of New Jersey provide useful guidance to the practitioner seeking to admit or exclude expert evidence.
The Procedural Framework

In almost every case, a Daubert challenge will trigger an in limine hearing under Federal Rule of Evidence 104(a). In Daubert, the Supreme Court instructed trial courts to determine expert opinion admissibility as a preliminary inquiry under Rule 104(a), and to require proof by a preponderance of the evidence.10 The hearing is ordinarily requested by counsel, but may be directed by the Court.

The Third Circuit has confirmed that a Rule 104 hearing is usually, if not always, essential to Daubert gatekeeping. In In re TMI Litigation,11 the Court noted that while an in limine hearing is not absolutely mandatory, "when the ruling on admissibility turns on factual issues, at least in the summary judgment context, failure to hold a hearing may be an abuse of discretion." Quoting its prior holding in Padillas v. Stork-Gamco, Inc.,12 the Court held that a trial court might be compelled to hold an in limine hearing, even when the expert's proponent fails to request it, by virtue of its "independent responsibility for the proper management of complex litigation and because the plaintiff needs an opportunity to be heard on issues of scientific reliability and validity." However, the Court noted that "Padillas certainly does not establish that a District Court must provide a plaintiff with an open-ended and never-ending opportunity to meet a Daubert challenge until plaintiff 'gets it right." Note that the gatekeeper role is primarily focused upon evidence in a jury trial; "where the Court itself acts as the ultimate trier of fact at a bench trial, the Court's role as a gatekeeper pursuant to Daubert is arguably less essential."13

In the wake of Daubert, the use of expert affidavits or testimony to validate or criticize the disputed expert testimony has become increasingly popular among lawyers; such expert evidence affords to the trial court credible and valuable assistance on qualifications, methodology and scientific consensus.

The right to explore the opinions of experts called to testify about the opinions of other experts has its limits, however. In Magistrini v. One Hour Martinizing Dry Cleaning, the plaintiff challenged, on Daubert grounds, the affidavit prepared by defense experts critiquing the methodology of the plaintiffs' experts. The Court held that the "[p]laintiff's challenge asks this Court to act as a gatekeeper to itself, to undertake a hearing within a hearing and to exclude [the affidavit] from the Court's own consideration;" it declined to do so.14 The affidavit was admitted.

Counsel should anticipate the scheduling of an in limine hearing, most likely in the context of a summary judgment hearing, shortly before trial or during trial, at times on relatively short notice, and should be prepared to present their evidence for or against the admission of expert testimony in that hearing. Testimony by qualified experts other than the witness whose testimony is disputed can prove helpful to a district court. 1 509 U.S. 579 (1993).
2 293 F. 1013 (D.C. Cir. 1923).
3 293 F. at 1014.
4 509 U.S. at 589.
5 509 U.S. at 592-593 and n. 11.
6 Daubert, 509 U.S. at 593-94.
7 General Electric Co. v. Joiner, 522 U.S. 136, 146-147 (1997).
8 Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
9 Fed. R. Evid. 702.
10 509 U.S. 592 n. 10.
11 199 F.3d 158, 159 (3rd Cit. 2000).
12 186 F.3d 412 (3rd Cir. 1999).
13 Magistrini v. One Hour Martinizing Dry Cleaning, 180 F. Supp. 2d 584, 596 n. 10 (D.N.J. 2002), aff'd, No. 02-2331, 2003 WL 21467223 (3rd Cir. June 25, 2003); Gibbs v. Gibbs, 210 E3d 491 (5th Cir. 2000); Volk v. United States, 57 F. Supp. 2d 888 (N.D. Cal. 1999).
14 180 F. Supp. 2d at 597.

Anne M. Patterson is a Partner of Riker Danzig Scherer Hyland & Perretti LLP in Morristown, specializing in products liability and commercial litigation. This article was previously published in the February 2004 issue of New Jersey Lawyer Magazine, a publication of the New Jersey State Bar Association, and is reprinted here with permission.