Kumho

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11Jan2000

Kumho

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expert witness qualificationsIn March of 1999, the Supreme Court issued its decision in the case of Kumho v. Carmichael (97-1709). The case addressed expert witness qualifications and what the trial court’s role is in admitting or excluding an expert’s testimony. While the case specifically dealt with the admissibility of information at trial, any party may want to consider these factors when selecting or deposing an expert.

Background

In 1923, the D.C. Court of Appeals ruled on the admissibility of scientific evidence in Frye v. United States (64 App. D.C.46, 47). In this case, covering admissibility of a test done using a systolic blood pressure deception test, an early form of polygraph, the court ruled that expert opinion based on scientific technique would only be admissible if the expert’s procedures were “sufficiently established to have gained general acceptance in the particular field in which it belongs.”

The “general acceptance” standard set in Frye held the field for half a century. In 1975, Federal Evidence Rule 702 expanded expert testimony beyond scientific subjects stating 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.”

Daubert

The conflict between Frye and the Rules of Evidence was addressed by the Supreme Court in 1993 in the case Daubert v. Merrell Dow Pharmaceuticals (509 U.S. 579). The court held that, “Frye made ‘general acceptance’ the exclusive test for admitting expert scientific testimony. That austere standard, absent from and incompatible with the Federal Rules of Evidence, should not be applied in federal trials.” The court then provided guidance to the trial courts in assessing the validity of scientific knowledge, “Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test. But some general observations are appropriate.” The court then laid out criteria which the courts could use in deciding the admissibility of the testimony:

“…whether the theory or technique can be (and has been) tested, whether it has been subjected to peer review and
publication, its known or potential error rate, and the existence and maintenance of
standards controlling its operation, and whether it has attracted widespread acceptance
within a relevant scientific community. The inquiry is a flexible one, and its focus must
be solely on principles and methodology, not on the conclusions that they generate."
[quoting from the case syllabus]”

The court also recognized that, “Vigorous cross examination, presentation of contrary evidence and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”

Chief Justice Rehnquist, however, in a partial dissent accurately predicted that “countless more questions will surely arise when hundreds of district judges try to apply its teaching to particular offers of expert testimony.”

Joiner

In December 1997, the Supreme Court again addressed the issue of admissibility of scientific testimony in General Electric Company, et al., v. Joiner, et ux. This case addressed what standard of review appellate courts should use in reviewing the exclusion of experts by the district courts. The court concluded that “abuse of discretion is the proper standard by which to review a district court’s decision to admit or exclude scientific evidence.” The court further ruled that “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. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.”

Kumho

As Chief Justice Rehnquist had predicted, there were “countless more questions” not only at the district court level, but in the circuit courts as well. Ten of the circuits had ruled on whether or not Daubert applied to non-scientific expert testimony, and they were evenly split on the issue. The issue was important to state cases as well as federal because, although Rule 702 and Daubert technically only applied to federal cases, 46 states had adopted Rule 702 in whole or in part, and 33 states had adopted Daubert principles. In its current session, the court therefore decided to address this issue, accepting for review the case of Kumho vs. Carmichael.

The case was closely watched by both plaintiff and defense attorneys, as well as insurance companies, law enforcement groups and members of the scientific community who contributed nearly two dozen amicus briefs.

The Kumho case did not deal with scientific evidence, as had Daubert and Joiner, but rather with expertise based on experience. More complete discussions of the facts and issues of the case are contained in the court’s decision and in the briefs cited below.

On March 23, the court issued its decision holding 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. See Fed. Rule Evid. 702. 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.”

For More Information

The decisions in the Daubert, Joiner and Kumho cases, including the dissents and syllabi, are available from Cornell’s Legal Information Institute at http://www.law.cornell.edu/.

You can look forward to seeing seminars on the Kumho decision at your upcoming bar association conferences. The ABA has scheduled an internet conference on the decision and the ATLA’s National College of Advocacy will be presenting an Internet/telephone seminar analyzing its impact on future litigation.

Mealey Publications will be covering the decision in their conferences on toxic torts and Y2K litigation. They also have a monthly publication Mealey’s Daubert Report which will keep you abreast of the latest rulings in the area. Mealey’s can be reached at 1-800-Mealeys or www.mealeys.com.

Several of the amici have posted their briefs on the Internet which can provide further insight into the issues involved and their ramifications. The Solicitor General’s brief is posted at www.usdoj.gov/osg/briefs/1998/3mer/1ami/97-1709.mer.ami.html. Others include the Trial Lawyers for Public Justice (www.tlpj.org/briefs/kumho.htm) and various law enforcement organizations (www.fire-investigators.org/KUMHO.htm).

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