Applying Daubert v. Merrell Dow Pharmaceuticals to Filter Expert Testimony Qualifications

Oftentimes lawyers employ expert witnesses to help prove their theory of liability, whether in a medical malpractice lawsuit, a personal injury lawsuit, or a product liability lawsuit. These expert witness can range from a general surgeon who might testify as to how the defendant doctor violated the standard of care, to a life care planner who could calculate the plaintiff’s lost future earnings following a construction site injury, or an engineer testifying regarding a product’s design defects. Whatever the type of expert witness, one thing remains constant: an expert witness’s testimony is often key in proving one’s case.

Given the valuable nature of expert witness testimony, it is essential that the expert is qualified to provide the opinions that are the subject of his or her testimony. It is common for both plaintiff and defense lawyers to challenge the qualifications of the opposing side’s expert witnesses. Because of the important nature of expert witness qualification issues, the United States Supreme Court has often spoken on the subject the acceptability of expert witnesses to testify, but most widely examined and cited is the product liability case of Daubert v. Merrell Dow Pharmaceuticals.

In Daubert, the Court considered the admissibility of the testimony of the plaintiff’s expert witness, who was interpreting the epidemiology studies of other doctors. The expert’s testimony was rejected by the trial court in the U.S. Court of Appeals for the Ninth Circuit under the Frye standard, taken from Frye v United States, 293 F. 1013 (D.C. Cir. 1923) .

The U.S. Supreme Court held in Daubert that the adoption of Federal Rule of Evidence 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'” (509 U.S. at 589). Instead, the Court substituted a case-specific view by the trial judge, applicable not only to “unconventional” evidence, but to other scientific evidence.

Accordingly, when the trial judges were faced with expert scientific testimony, the court must determine, pursuant to Rule 104(a), whether the expert would be 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 would require a preliminary assessment as to whether the reasoning and the methodology could be properly applied to the facts in the case. The Supreme Court noted that it was confident that a federal judge could apply this review.

Federal trial courts were assigned the task well beyond the general acceptance test of Frye: validation of the scientific technique that the expert uses, in its broader application and its case-specific use. General Electric Co. v. Joiner, 522 U.S. 136, 146-147 (1997), decided a few years after Daubert, there the Supreme Court emphasized the importance of the trial court’s gatekeeper role, holding that the trial court’s determination is subject to “abuse of discretion” standard on appeal and excluding expert evidence when the available data and the opinion do not match.

In the Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court held that the Daubert standard extended to all fields in which experts have technical or specialized knowledge. The issue on expert testimony in Kumho was that of a tire engineer’s opinion testimony. In 2000, the drafter’s of the federal rules amended the Federal Rules of Evidence 702 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. Fed.R.Civ. 702.

The Daubert case has set the standard regarding the admissibility of expert witness testimony at federal court. Under Daubert, a judge may exclude expert witness testimony that is not based upon sufficient facts or data, is not the product of reliable principles and methods, or where the expert witness has not applied the principles and methods reliably to the facts of the case. Lawyers will regularly face Daubert motions to exclude expert testimony.

For example, in a Northern District of California case, Oracle USA, Inc. et al. v. SAP, et al., 296 F.Supp.2d 1140 (N.D.Cal. 2003), the plaintiff’s argument to exclude one of defendant’s expert witness was denied based on weight, not admissibility. The court held that the expert witness qualified to offer opinions at issue and his methodology satisfied the requirements of Rule 702. These decisions that apply these evidentiary rules are done on a case by case basis.

Kreisman Law Offices has been handling Illinois personal injury cases and Illinois product liability lawsuits for over 35 years in and around Cook County, including Oak Lawn, Oak Park, Palatine and Evanston.