The Interplay Between Rules 401 - 403 - 702 - and - 703
The editors of The Litigator’s Handbook of Forensic Medicine, Psychiatry, and Psychology know there are numerous rule interactions which the cross examiner must utilize in attempting to limit or strike “junk science”. Clearly, FRE 401 - the basic rule of relevance - is the first level of attack. While an opinion may be of some scientific merit, it may not “fit” the facts in issue so as to lend proof or disproof. In this way, it is simply not relevant. Next, while an opinion may be relevant, it may not be helpful because it is not “beyond the ken” of the average juror [FRE 702]. Next, an opinion could be outside the fund of knowledge of the average juror, but proffered by an “expert” who is simply not schooled enough in the datum of his or her discipline to actually qualify as an “expert” [FRE 702]. Should the expert qualify, and the proposed opinion fall outside of the basic knowledge of the average juror, it may be based upon faulty reasoning or methodology [FRE 703]. In addition, the proposed expert and/or opinion may be relevant and scientifically reliable, but so confusing and/or lacking in specific validity as to be more prejudicial than probative [FRE 403]. With the help of the properly prepared cross examiner, all of these analytical decisions and more can be made by the gatekeeper.[1]
Three Kinds of “Fit” in Expert Evidence
In her work for the Federal Judicial Center’s Reference Manual on Scientific Evidence, professor Margaret Berger describes a two-pronged approach to voir dire and the proffered expert[2]:
“To ascertain whether a proposed expert is qualified to act as a witness, a court must undertake a two-step inquiry:
The court should determine whether the proffered expert has minimal educational or experiential qualifications in a field that is relevant to a subject which will assist the trier of fact.
If the expert passes this threshold test, the court should further compare the expert’s area of expertise with the particular opinion the expert seeks to offer. The expert should be permitted to testify only if the expert's particular expertise, however acquired, enables the expert to give an opinion that is capable of assisting the trier of fact.”Id.
Once this has been accomplished in voir dire, the cross examiner should endeavor to demonstrate how the expert’s particular background and training may not actually “fit” the facts in issue.[3] Indeed, the fact that an expert possesses a particular title or degree is not dispositive in qualifying the expert. Indeed, an expert’s credentials or experience may enable the expert to meet a threshold test; but before the expert is found qualified to offer an opinion about a particular issue, the gatekeeper must make further inquiry. The editors of The Litigator’s Handbook know that properly aided by well-prepared voir dire, the court must also decide whether the actual qualifications of the expert enable him or her to assist the trier of fact with regard to each controverted issue. This is the first level of “fit” necessary for the admission of proffered expert testimony, i.e. Does the proposed expert possess the kind of background and experience to “fit” the facts in controversy?
Next, the cross examiner must demonstrate whether the proffered expert is basing his or her opinion on methodology that is valid and reliable application to the facts of the case. The methodology utilized by an expert witness may not allow the expert to disregard facts or other evidence inconsistent with his opinions, or to disregard countervailing factors. The factual basis for an expert witness’s opinion must be accurate and precise.[4] The Supreme Court endorsed this approach in Daubert when it located within Rule 702 the obligation of the trial court to determine whether the proffered scientific evidence “properly can be applied to the facts in issue.” This is the second level of “fit”, and a properly prepared voir dire will aid the gatekeeper in analyzing it. The editors of The Litigator’s Handbook feel it is important to remember that the Supreme Court adopted terminology used by Judge Becker in United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985), and characterized this consideration as one of “fit”.[5] In this way, Rule 702, rather than Rule 703, is the proper vehicle for excluding expert opinions that do not meet this second level of “fit”.[6], [7]
The editors of The Litigator’s Handbook are not advocating the necessity of an exact fit between a proffered expert’s methodology and the facts of the case. It is sufficient if the expert’s orientation, background and methodology fit the facts with reasonable scientific specificity and go beyond subjective belief or unsupported speculation.[8], [9] We would emphasize however, that in assessing the admissibility of expert testimony, the primary focus of the federal courts is upon the Rule 702 requirement that the testimony fit the facts. When expert testimony fits the facts, it assists the trier of fact “to understand the evidence or to determine a fact in issue.”[10] As the Advisory Committee for the Rules and several federal circuits have explained, this kind of “fit” is the “touchstone” of Rule 702.[11]
The editors of The Litigator’s Handbook remind the reader that while this second level of “fit” and helpfulness is the essential part of Rule 702, it is “reasonable reliance” that is the touchstone of Rule 703. The second sentence of Rule 703 provides that an expert opinion need not be based upon admissible evidence. It is sufficient for an expert’s opinion to rest on data “reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.”[12] According to the Rule Advisory Committee, the goal is to allow experts to function essentially the same way in court as they do out of court. This is thought to provide for more realistic and useful expert testimony. The Advisory Committee reasoned, for example, that physicians base their diagnoses on statements from other medical personnel, patients, relatives, hospital records, objective tests and so forth. Even if the underlying information constitutes inadmissible hearsay, or is inadmissible for some other reason, the Federal Rules take the position that if it is good enough for the physician’s day-to-day “life-and-death decisions”, it should be a good enough basis for an expert’s opinion at trial.[13]
Under Rule 703, expert testimony may be derived from any one of the following three sources:
The expert’s first-hand knowledge of the facts acquired before the hearing.
Facts and data made known to the expert at the hearing.
Facts and data obtained outside of court other than from personal observation. Id.
Rule 703 allows an expert to base his or her opinion on facts or data perceived by or made known to the expert before the hearing. The editors of The Litigator’s Handbook feel this source of expert testimony is more expansive than under common law. In other words, Rule 703 permits, but does not require, an expert to testify on the basis of information obtained before the hearing by personal observation or examination. Rule 703 does not, however, allow an expert to base his/her opinion on assumptions and data that are so contrary to the evidence in the record, or on assumptions that are so speculative, that they amount to conjecture and speculation. Clearly, the Court has a duty to inquire into the trustworthiness of the underlying data; and it can exclude testimony where an expert has not reasonably based his/her opinion on trustworthy underpinnings.[14] Indeed, the Court's determination whether an expert is truly qualified for the circumstances of the particular case must take into account the fact that his/her opinion may be based on untrustworthy underpinnings.[15] Daubert and Kumho inform that this “trustworthiness” standard must be grounded in the reasoning and methodology of science.[16] By using the term “scientific”, said the Supreme Court, the witness implies a “grounding in the methods and procedures of science”.[17] The word “knowledge”, the Court instructed, “connotes more than subjective belief or unsupported speculation”. Id. The Court made it clear that:
“...in order to qualify as ‘scientific knowledge’, an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation - i.e., ‘good grounds’, based on what is known.” Id.113 S Ct at 2795; 125 L Ed 2d at 481.
“Good grounds” and “appropriate validation” point to the touchstones of science itself: reliability and validity. These considerations form the third level of “fit”. Even if (1) the expert’s background and knowledge of the discipline “fits”; and even if (2) the opinion the expert proposes is well oriented to “fit” the issues in controversy; if there are reliability and validity problems with the expert’s extrapolation to the issues, the opinion cannot pass muster under Daubert and Kumho.
[1]. See, i.e.: In re Paoli R.R. Yard PCB Litig.,. 35 F.3d 717, 742 (3d Cir. 1994), cert. denied. 513 U.S. 1090 (1995) The trial court’s gatekeeping role with regard to experts includes independent evaluation of reasonableness or data relied on by experts under Fed. R. Evid. 703. See, also:
2d Circuit United States v. Locascio, 6 F.3d 924. 938 (2d Cir. 1993), cert. denied., 511 U.S. 1070 (1994) Daubert principles interpreting Fed. R. Evid. 702 apply equally to Fed. R. Evid. 703.
5th Circuit See Allen v. Pennsylvania Eng’g Corp., 102 F.3d 194, 197 n.4 (5th Cir. 1996) Courts applying Daubert standard for admissibility of expert testimony should pay particularly close attention when expert witnesses depart from generally accepted scientific methodologies, because judge or jury is not equipped to evaluate scientific innovation; & Guillory v. Domtar Industries, Inc., 95 F.3d 1320, 1331 (5th Cir. 1996) The role of the district Judge as gatekeeper for expert evidence is designed to exclude evidence tainted by farce or fiction.
7th Circuit See Porter v. Whitehall Laboratories. Inc., 9 F.3d 607, 614 (7th Cir. 1993) The court properly excluded testimony not grounded in scientific method Daubert analysis.
8th Circuit See Sorensen by and through Dunbar v. Shaklee Corp., 31 F.3d 638, 650-651 (8th Cir. 1994) The court properly excluded testimony because scientific basis too speculative -Daubert analysis.
11th Circuit See Raynor v. Merrell Pharmaceuticals, Inc., 104 F3d 1371, 1374 (D.C. Cir. 1997) “Daubert creates no obvious bar to applying Rule 703 as we have done in the past”; This reviewing court found that the trial court properly excluded proffered expert testimony under Rule 702; Ambrosini v. Labarraque. 101 F.3d 129,133-134, 137-139 (D.C. Cir. 1996), cert. dismissed, - U.S. -, 117 S. Ct. 1572 (1997) As the gatekeeper concerning scientific evidence using Daubert standard, the district court must engage in a preliminary assessment as to whether reasoning or methodology underlying testimony is scientifically valid and whether reasoning or methodology properly can be applied to facts at issue; Ealy v. Richardson-Merrell, Inc., 897 F.2d 1159, 11611162 (D.C. Cir.), cert. denied, 498 U.S. 950 (1990) A pre-Daubert case in which the court excluded testimony as without scientific foundation in face of wealth of published contrary data.
[2]. Berger, M. (1994). Evidentiary Framework . In Reference Manual on Scientific Evidence. Washington, D.C. ( p. 44)
[3]. See Barrett v. Atlantic Richfield Co., 95 F.3d 375, 382 (5th Cir. 1996) Where an animal behaviorist was not qualified to testify about cause of observed chromosomal damage to rats or about any possible effects of similar exposure on humans. And see these cases where expertise & testimony were seen to be out of synch:
1st Circuit See Silva v. American Airlines, Inc., 960 F. Supp. 528, 531 (D. Puerto Rico 1997) Where the testimony of a civil engineer was excluded because he had never specifically worked with, tested, or studied aircraft interior safety hazards and because experts must have specific knowledge, not just capacity to acquire knowledge.
3d Circuit See Genty v. Resolution Trust Corp., 937 F.2d 899, 916-917 (3rd Cir. 1991) Court excluded a toxicologist’s testimony about causation due to lack of medical qualifications.
6th Circuit See United States v. Moses, 137 F.3d 894, 899-900 (6th Cir. 1998) A social worker was not qualified to testify that a child witness would be unable to testify in the defendant’s presence because of emotional trauma, since the record did not show that she had any “special skill or knowledge” about trauma.
[4]. See, i.e.: 31 Am. Jur. 2d Expert and Opinion Evidence §§ 247, 251 (1989).
[5]. Daubert 113 S. Ct. 2786, at 2796. The expert’s testimony must provide “a valid scientific connection to the pertinent inquiry.”
[6]. See, i.e.: Duffee v Murry, 91 F.3d 1410 (10th Cir. 1996) Daubert requires the Court to decide whether the methodology and reasoning of the expert are scientifically valid, and whether they are properly applied to the facts; U.S. v City of Miami, Fla., 115 F.3d 870 (11th Cir. 1997) Expert testimony must be supported by facts sufficient to permit a reasonable conclusion; Dolhite v Maugham, 74 F.3d 1927 (11th Cir. 1996) Expert opinions that are merely legal conclusions without specific reference to facts offered in case are excludable.
Courts generally examine the qualifications of the expert, and match them to the subject matter on which testimony is offered to see if there is a “fit”; Damon v Sun Co., 87 F.3d 1467 (1st Cir. 1996) Expert testimony based upon
evidence that does not have a proper factual foundation should not be allowed; Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F. 3d 69 (3rd Cir. 1996) Expert opinion excluded if opinion cannot be based upon the stated facts.
[7]. There are numerous examples of cases wherein the courts have found experts with sufficient case-specific expertise:
2d Circuit See, e.g., Enercomp, Inc. v. McCorhill Publishing, Inc., 873 F.2d 536, 550 (2nd Cir. 1989) A senior associate in corporate finance was qualified to testify on value of defendant’s assets in light of experience in field of mergers and acquisitions.
3d Circuit See. e.g., Dunn v. Hovic, 1 F.3d 1362, 1368 (3rd Cir.), cert. denied, -- U.S. --, 114 S. Ct. 650 (1993) An occupational medicine practitioner was allowed to testify as expert on asbestos in light of experience with other employers and his review of defendant's corporate records.
5th Circuit See, e.g., Myers v. Griffin-Alexander Drilling Co., 910 F.2d 1252, 1254 (5th Cir. 1990) An expert in hyperbaric medicine was qualified to testify on the effects of nitrogen on plaintif).
6th Circuit See, e.g., United States v. Metzger, 778 F.2d 1195, 1203-1204 (6th Cir. 1985). cert. denied, 477 U.S. 906 (1986) Admitted testimony of a witness who conducted thin-layer chromatography to test for presence of chemical, and who had attended numerous courses and seminars dealing with explosives.
8th Circuit See Williams v. Pro-Tec, Inc., 908 F.2d 345, 348 (8th Cir. 1990) In a pre-Daubert case, a mechanical engineer’s self-acknowledged lack of medical expertise went to the “weight” of his opinion about an eye injury rather than to the admissibility of his opinion.
10th Circuit See, e.g., Wheeler v. John Deere Co., 935 F.2d 1090, 1100 (10th Cir. 1991) A mechanical engineer with special expertise in safety design of mechanical equipment was qualified as expert in products liability action.
11th Circuit See. e.g., United States v. Hensel, 711 F.2d 1000, 1006 (11th Cir. 1983) A fire inspector was allowed to testify about the origins of a fire aboard a ship despite his alleged shortcomings in admiralty area.
[8]. Daubert 113 S Ct at 2795; 125 L Ed 2d at 481.
[9]. See, i.e.: DaSilva v. American Brands, Inc., 845 F.2d 356, 360-361 (1st Cir. 1988) In a pre-Daubert case, an appellate court rejected a defendan’s view that mechanical engineer with 23 years experience with machine design that was not qualified as expert because his design experience was not with the “specific machine” in question. See, Schmaltz v Norfolk & Western RY. Co., 878 F. Supp. 111 (N.D. Ill. 1995) Where the court noted that the suggested scientific testimony must “fit” the issue about which the expert is testifying; In re Paoli R.R. Yard PCB Litig., 35 F.3d 717. 742 (3rd Cir. 1994), cert. denied. 513 U.S. 1690 (1995) Admissibility depends in part on the proffered connection between the scientific research or test result to be presented and particular disputed factual issues in the case, i.e. the “fit” requirement. And see:
2d Circuit See Stagl v. Delta Air Lines, 117 F.3d 76, 81-82 (2nd Cir. 1997) A district court erred in concluding that well-trained person who lacked specific expertise in airport terminal design or baggage claim systems was insufficiently qualified to testify.
3d Circuit See Holbrook v. Lykes Bros. S.S. Co Inc., 80 F.3d 777, 781-783 (3rd Cir. 1996) Reviewing court determined that it was an abuse of discretion to exclude an exper’s testimony simply because the trial court did not deem witness to be the best qualified or to have the specialization that the court considered most appropriate. The appellate panel granted a new trial because the trial court disallowed the treating doctor’s testimony about decedent’s cancer because he was not a pathologist, oncologist, or expert in “definitive cancer diagnosis”.
4th Circuit See Garrett v. Desa Indus., Inc., 705 F.2d 721, 725 (4th Cir. 1983) A mechanical engineer was allowed to testify on problems with stud drivers because of his education even though he has no specific experience with stud drivers.
10th Circuit See Weese v. Schukman, 98 F.3d 542, 549-550 (10th Cir. 1996) A physician could testify that an expert witness, even though he had no experience in treatment for carbon monoxide poisoning, because physician was qualified to testify about another method of treatment for carbon monoxide poisoning that he believed met standard of care.
[10]. Remember, the court can always reach out to find another expert. See, i.e.: Stagl v Delta Air Lines, Inc. 117 F.3d 76 (2nd Cir. 1997) The court may consider the availability of other more qualified experts in deciding to exclude testimony on the grounds that the proposed expert is not sufficiently knowledgeable in the area.
[11]. See, i.e.: Federal Rule of Evidence 702 advisory committee and i.e.: Kopf v Skyrm, 993 F.3d 374, 377 (4th Cir. 1993).
[12]. The reform accomplished by the second sentence of FRE 703 has two practical effects. First, it reduces the need for firsthand knowledge on the part of experts. Second, the fact that an expert may testify without firsthand knowledge, when coupled with the principle that the underlying basis need not be set out before opinion testimony is given, substantially reduces the need for hypothetical questions. According to the Advisory Committee, the focus of the reasonable reliance standard is the quality and sufficiency of outside information and the manner of, and reasons for, its use.
[13]. Federal Rule of Evidence 703 advisory committee note.
[14]. See, i.e.: Zenith Radio Corp. v. Matsushita Electric Industries Company, 505 F. Supp. 1313. 1325 (E.D. Pa. 1981).
[15]. Id. at 1325 and n. 11. and see: Shatkin v McDonnell Douglas Corp., 565 F Supp. 93 (S.D.N.Y. 1983).
[16]. Daubert: 509 U S 579, 113 S Ct at 2797; 125 L Ed 2d at 484 - the “focus....must be solely on principles and methodology.”
[17]. Id. 113 S Ct at 2795; 125 L Ed 2d at 481.
