Tag Archives: Daubert

Expert Witness writing report

What Every Lawyer Needs to Know about Experts Daubert Standard Reports

The Federal Rules of Civil Procedure require experts to prepare a written report if they are retained to testify. State rules may or may not impose the same obligation. Even when state rules do not demand production of a report, a judge’s scheduling order might require a testifying expert to do so.

Lawyers often tell the expert that they need a report, advise the expert of the deadline for its production, and await the result. If an expert has a track record of writing excellent expert reports, further guidance may not be necessary. In most cases, however, a lawyer should remind the expert of the need to describe the expert’s methodology in detail.

The Basics

In federal court, every report must include:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;

(ii) the facts or data considered by the witness in forming them;

(iii) any exhibits that will be used to summarize or support them;

(iv) the witness’s qualifications, including a list of all publications authored in the previous 10 years;

(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and

(vi) a statement of the compensation to be paid for the study and testimony in the case.

Lawyers should make certain to provide an expert witness with a list of the report’s required contents. If the governing state rule differs from the federal rule, lawyers should make sure the expert follows the applicable rule.

Description of Methodology

While the federal rule does not use the word “methodology,” the Daubert decision requires experts to base their opinions on reliable methods. Describing the expert’s methodology — the process by which the expert formed opinions — is an essential part of explaining the “basis and reasons for” each opinion the expert will express.

When judges decide that expert testimony is inadmissible, they usually conclude that the expert report failed to describe a reliable methodology. Experts may take it for granted that they use reasonable methods to arrive at opinions, but the Daubert decision requires experts to “show their work.” 

Experts should provide a step-by-step description of the process by which they formed each opinion. For example, it isn’t enough for an accident reconstruction engineer to write “I examined the accident scene and determined that the defendant’s car was traveling at 80 mph when the collision occurred.” That’s a statement of an opinion, not an explanation of the methodology that produced the opinion.

Instead, the expert should describe the observations she made at the accident scene, including measurements of skid marks, the distances that accident debris traveled from the point of impact, and any other facts that inform her opinion. The expert should then explain the principles of physics that the expert used to make conclusions about the vehicle’s speed. The expert should describe the mathematical calculations that establish the relationship between the facts and the expert’s conclusion about the vehicle’s speed. Describing the process that the expert followed to reach an opinion is usually the most important part of an expert report.

As another example, a vocational expert who assesses future employability should explain the sources of information (including doctor’s reports, the injury victim’s work history and education, and interviews) that inform the expert’s opinions about work limitations. The expert should then describe the method used to assess job availability, including consultation with databases that describe jobs in the economy that a person with the victim’s limitations can perform. The report should cite evidence that those methods are traditionally used by vocational experts to form opinions about employability.

Establishing the Reliability of a Methodology

Supreme Court decisions that address reliability have focused on scientific opinions. They describe factors that scientists have identified as affecting experimental reliability. Have the study results been published and peer reviewed? Have other scientists replicated the results? Was the experiment conducted according to accepted standards? Did the experimental procedure have a known error rate? Is there a consensus within the relevant scientific community concerning the validity of the results of studies that inform an expert’s opinion?

When an expert’s opinion is based on an assessment of scientific studies, the expert establishes reliability by discussing all of the relevant studies, by explaining why some of those studies produced more reliable results than others, and by articulating the reasoning that guided the expert’s acceptance of particular study results. Cherry-picking results that support the expert’s opinion while ignoring less favorable results is not a sign of reliability.

Many experts offer opinions outside the realm of “hard science.” While judicial decisions that focus on scientific opinions do not necessarily fit well with opinions that do not derive from experimental studies, some judges are inflexible in their insistence that experts should always discuss error rates and other reliability factors that simply don’t apply to the expert’s analysis. Experts should take care to explain why their methodologies are reliable, even when the methodologies are not based on an analysis of experimental studies.

For example, an expert in the History of Science provided an expert opinion about the validity of Michael Mann’s climate change studies in Mann’s lawsuit claiming that he was defamed by bloggers. The expert testified that her methodology was “reading and thinking.” The court concluded that “reading and thinking” is not an expert methodology because everyone, including jurors, can read and think.

The expert could have explained that, throughout history, scientists have identified specific methodologies that produce reliable results. She could have identified those scientists and explained why the scientific community embraced the scientific method and rejected alternative means of forming opinions. She could then have explained whether Mann followed the scientific method, comparing his work to the expectations of scientists who have developed and refined that method over the years.

The expert likely had that literature review in mind when she talked about “reading and thinking,” but she didn’t show her work. By condensing the process of evaluating literature into the phrase “reading and thinking,” the expert failed to persuade the judge that she used a reliable methodology to evaluate Mann’s work.

There is little doubt that the expert was qualified to opine about the reliability of Mann’s methods. She likely thought that her own method — identifying the factors that determine reliability and applying those factors to Mann’s research — was self-evident. The court’s rejection of her testimony should be a lesson to lawyers about the need to remind experts that their reports must identify a detailed methodology and must explain why the methodology is reliable.

Expert Testimony May Be Necessary to Counter ShotSpotter Evidence

The latest technology to capture the attention of law enforcement is called ShotSpotter. The manufacturer claims that hidden microphones installed in neighborhoods can tell the difference between gunshots and other loud noises. Rather than waiting for someone to report a shooting, police agencies that rely on the technology dispatch officers to the location where the shots were allegedly fired.

The technology has generated criticism. Apart from concerns about the concentration of microphones in black neighborhoods, the Electronic Frontier Foundation is worried that police agencies might use the microphones to eavesdrop on private conversations. Whether the ShotSpotter system reduces gun violence seems doubtful. 

From the standpoint of an expert witness blog, the question is whether defense attorneys should use expert witnesses to challenge ShotSpotter evidence in court. There is good reason to think that Daubert challenges should be filed, and experts employed, whenever ShotSpotter evidence is a critical component of the prosecution’s proof.

Investigations of ShotSpotter 

A recent investigation calls into question the evidentiary value of ShotSpotter reports. Last year, Michael Williams brought a shooting victim to a Chicago hospital. Williams said the victim was shot during a drive-by shooting. After the victim died, the police arrested Williams for the victim’s murder. Why Williams would bring the victim to a hospital if Williams intended to kill him is a question that raises serious doubt about Williams’ guilt.

The police built their case on video and ShotSpotter evidence. The video evidence showed only that Williams’ car had stopped in the 6300 block of South Stony Island Avenue at 11:46 p.m. on the night of the shooting. The police contended that the victim was shot at that location. No video evidence supports that contention.

The police contend that they received a “shots fired” alert from ShotSpotter at the Stoney Island location. In fact, company records show that “19 ShotSpotter sensors detected a percussive sound at 11:46 p.m. and determined the location to be 5700 South Lake Shore Drive—a mile away from the site where prosecutors say Williams committed the murder.” The company’s algorithms identified the sound as an exploding firework.

Company records show that “a ShotSpotter analyst manually overrode the algorithms and ‘reclassified’ the sound as a gunshot.” Months later, a different ShotSpotter employee manually changed the alert’s coordinates to a South Stony Island Drive location near the place where Williams’ car can be seen on camera.

The evidence suggests that ShotSpotter changed its data to support the theory that Williams shot the victim. Williams’ lawyer filed a motion that challenged the ShotSpotter evidence, arguing that it failed to meet the Illinois standard for the admissibility of expert opinions. Rather than defending against the motion, prosecutors agreed not to use ShotSpotter evidence against Williams. 

Daubert Challenges to ShotSpotter Evidence

The investigation suggests that the Chicago incident was not an isolated example of ShotSpotter tailoring its conclusions to match law enforcement theories. In a carefully worded statement, ShotSpotter denied that it has ever “altered the information in a court-admissible detailed forensic report based on fitting a police narrative.” The statement claims that ShotSpotter is “100{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} accurate,” a claim of certainty that many reputable forensic science experts condemn. The statement asserts that ShotSpotter has been admitted over ten Frye challenges and one Daubert challenge, but it does not state how many challenges to admissibility have succeeded.

ShotSpotter commissioned a report by CSG Analysis, a “police officer-owned and operated company,” that is filled with unsurprising praise of ShotSpotter. The report does not purport to be based on a scientific analysis. Rather, it is based on interviews with police officers in cities that have paid to install ShotSpotter. 

Despite the report’s obvious credibility issues, the authors acknowledge that false positives — sounds that could be caused by trucks, dumpsters, construction, church bells, and all the other sources of concussive sound — are a significant operational problem with ShotSpotter. In two of the seven jurisdictions where interviews were conducted, half of the ShotSpotter alerts were believed to be false positives. A recent study found that Chicago police officers investigated 40,000 ShotSpotter alerts in a 21-month period that resulted in no evidence that shots had been fired.

Challenges to ShotSpotter Evidence

ShotSpotter claims that its analysts can identify actual gunshots when evidence is needed for court. The analysts allegedly perform a deeper dive into the data than the system’s algorithms perform. ShotSpotter contends that a more reliable human analysis explains why results are changed after police agencies contact ShotSpotter. Since one purpose of algorithms is to eliminate human bias, one might wonder whether second-guessing algorithms calls either the algorithms or the analyst’s opinions into question.

The admissibility of ShotSpotter evidence, whether generated by algorithms or humans, is not a foregone conclusion. A Daubert challenge should focus on whether ShotSpotter results been accepted by any independent scientific community, whether its analytical system has been peer reviewed, whether it has a known error rate, and whether conclusions drawn by analysts have been verified by independent testing. The National Juvenile Defender Center has compiled materials, including transcripts of testimony that ShotSpotter witnesses have given at Daubert/Frye hearings, that may guide those challenges.

Notably, a California appellate court reversed a conviction based on ShotSpotter evidence because the trial court did not hold a pretrial hearing to determine whether the evidence was reliable. The court noted the dearth of appellate opinions considering the admissibility of ShotSpotter evidence and concluded that courts could not assume the reliability of the novel technology.

ShotSpotter offers to supply prosecutors with expert witnesses who will testify in court for $350 an hour with a two-hour minimum. Retaining a defense expert with a background in acoustic science may be critical to countering those experts and to bringing a successful Daubert challenge. 

North Carolina

N.C. Supreme Court Adopts Daubert, Excludes Use of Force Expert

Charles McGrady was convicted in North Carolina of murdering his cousin, James Shore Jr. McGrady admitted that he shot Shore but claimed that he acted in self-defense. The trial court denied his request to call a “use of force” expert in his defense.

On appeal, the state’s highest court decided that the federal Daubert standard of expert witness admissibility now applies in North Carolina. Applying that exacting standard, it affirmed the lower court’s exclusion of the expert testimony.

Facts of the Case

McGrady and Shore lived across from each other in a trailer park. They had a long history of combative behavior.

McGrady testified that the night before the shooting, Shore threatened to kill him. The next day, McGrady drove his golf cart to his mailbox. His son, seated next to him, was armed with an assault rifle. McGrady was carrying a 9-millimeter handgun.

As McGrady was driving back to his trailer, he saw Shore shouting and moving toward him. McGrady activated a tape recorder that captured much of the argument between the two men. McGrady accused Shore of threatening to kill him. Shore accused McGrady of shining a spotlight on him the previous night. Another witness testified that it was not a spotlight but the laser sight of an assault rifle that McGrady pointed at his cousin.

The men exchanged a variety of threats. According to McGrady’s son, Shore approached the golf cart and began to shake it. McGrady testified that Shore also threatened them with a knife.

McGrady asked his son to hand him the assault rifle “to defuse the situation,” an act that prompted Shore to reach for the rifle. Whether Shore actually grabbed the rifle was disputed by the witnesses.

McGrady testified that Shore pointed the rifle at his son’s head. McGrady then shot Shore with his handgun. McGrady fired seven shots, four of which struck Shore.

McGrady argued that he acted in self-defense and in defense of his son. To bolster that defense, he wanted to call Dave Cloutier as an expert in “the science of the use of force.” The trial court denied that request and McGrady was convicted of murder.

Admissibility of Expert Testimony in North Carolina

In 2011, the North Carolina General Assembly amended Rule 702(a) of North Carolina’s Rules of Evidence. The version that the legislature adopted tracked the language of the federal rule governing the admissibility of expert testimony. The federal rule is commonly known as the Daubert standard, based on a United States Supreme Court case that defined the trial court’s responsibility in applying the rule.

In 2004, the North Carolina Supreme Court had concluded that “North Carolina is not, nor has it ever been, a Daubert jurisdiction.” The Court was concerned that “the ‘exacting standards of reliability’ demanded by the federal approach” required judges to invade the province of the jury by evaluating “the substantive merits of the scientific or technical theories undergirding an expert’s opinion.”

In McGrady’s appeal, the Court overruled that precedent and held that the “the meaning of North Carolina’s Rule 702(a) now mirrors that of the amended federal rule.” According to the Court, “the General Assembly has made it clear that North Carolina is now a Daubert state.”

The Court concluded that federal precedent construing the Daubert standard should guide North Carolina cases. Of course, as ExpertPages has often noted, federal courts have adopted varying interpretations of the federal rule. Some interpretations are more liberal and others are more restrictive in defining the judge’s role as the “gatekeeper” of expert evidence.

North Carolina had a fairly liberal standard for the admission of expert evidence before the legislature adopted the Daubert standard. The Court concluded that its prior cases will continue to guide judges, but only to the extent that they are not inconsistent with Daubert. For the most part, cases that decided whether expert testimony would be helpful to the jury and whether the expert was qualified to testify will still be good law in North Carolina. The key difference between the old and new standards is that a judge’s assessment of whether expert testimony is reliable will be more rigorous than it was in the past.

McGrady’s Expert

McGrady expected his use of force expert to provide three opinions:

  • the “pre-attack cues” and “use of force variables” present in the interaction between McGrady and Shore made McGrady’s perception of an imminent, deadly assault reasonable and justified the use of deadly force;
  • McGrady’s actions and testimony are consistent with those of someone experiencing the sympathetic nervous system’s “fight or flight” response; and
  • the shots that hit Shore in the back can be explained by reaction times.

The North Carolina Supreme Court concluded that the trial judge did not abuse his discretion in disallowing that testimony. The appellate court agreed that McGrady’s perception of a likely assault was within the jury’s common knowledge and that an explanation of cues (such as threats and the display of a weapon) and variables (such as the age and size of the participants in the dispute) would not add anything to what jurors already understood.

The Court also agreed that Cloutier was not qualified to offer expert testimony about the stress responses of the sympathetic nervous system. Cloutier was not a doctor. He claimed to have “basic knowledge” of brain functioning based on taking college psychology courses, reading articles, and teaching police officers how to deal with stress responses. The Court concluded that while Cloutier “may have been eminently qualified to testify about standard police practices regarding the use of force, he was far less qualified to testify about the sympathetic nervous system.” Whether Cloutier was adequately qualified was a judgment call, and the trial court’s judgment was not so obviously wrong that the court could be said to have abused its discretion.

Finally, the appellate court agreed that Cloutier’s proposed testimony regarding reaction times was unreliable. Cloutier would have testified that a person can turn his body in less time than it takes to perceive a threat and fire a weapon, so Shore might have been facing McGrady when McGrady decided to shoot, but might have turned his back to McGrady before the shots were fired. The trial court thought the proposed testimony was unreliable because Cloutier based his opinion on reaction time studies, but admitted that factors such as clothing, injuries, and initial body position can affect reaction time. Those factors would seem to go to the weight a jury should give to Cloutier’s testimony rather than its reliability. In fact, use of force experts routinely testify about reaction times in cases where the police shoot a suspect in the back. The same standard presumably should apply to civilian defendants, but the Court concluded that the trial court did not abuse its discretion in deciding that Cloutier’s testimony was unreliable.

Implications for Expert Witnesses

In the end, the McGrady case is more important for its definitive ruling that North Carolina now follows the Daubert standard than for its application of that standard to Cloutier’s expert testimony. Other trial judges applying the same standard may have concluded that some parts of Cloutier’s testimony were admissible. In fact, use of force experts are common when police officers are on trial, so the McGrady decision should not be read as prohibiting use of force expert testimony in every case.

Statue of justice

Court Excludes Testimony of Medical Expert Who Declined to Consider Conflicting Studies

Do expert witnesses who rely on scientific studies have an obligation to explain why they did not rely on studies that produced different results? A divided panel of the U.S. Court of Appeals for the First Circuit ruled that they do. While the holding may be questionable, the decision provides guidance to medical and other science-based experts who may be asked about studies that do not support their conclusions.

Facts of the Milward decision

Brian Milward sued the Rust-Oleum corporation (and other paint manufacturers) after he was diagnosed with Acute Promyelocytic Leukemia (APL). Milward spent his adult life working as a pipefitter and refrigerator technician. He contended that exposure to benzene in paint products caused his cancer.

To succeed in his toxic tort case, Milward needed to prove that benzene is capable of causing APL (general causation) and that benzene exposure actually caused his APL (specific causation). Expert testimony is required to make each of those showings.

The court eventually determined that Milward’s expert in general causation would be permitted to testify. Milward retained occupational medicine physician Dr. Sheila Butler to testify regarding specific causation. Rust-Oleum challenged that testimony.

Dr. Butler based her opinion on three theories. First, she testified that there is no safe level of benzene exposure. She did not base that conclusion on epidemiological studies, but on her examination of the impact benzene has on the human organism and the disease process. Dr. Butler concluded that benzene likely caused Milward’s APL because he was exposed to benzene and all benzene exposures are unsafe.

Second, Dr. Butler testified that certain epidemiological studies have established that the exposure to specified quantities of benzene increases an individual’s “relative risk” of developing APL. Since Milward’s exposure was higher than the amounts found to be hazardous, Dr. Butler concluded that benzene exposure was likely the cause of his APL.

Third, Dr. Butler ruled out other potential causes of APL, such as obesity and smoking. Her “differential diagnosis” resulted in the conclusion that benzene caused Milward’s APL because it was the only significant potential cause that she could not rule out.

District Court’s Ruling

Rust-Oleum brought a Daubert motion to exclude Dr. Butler’s testimony. The Daubert decision requires the district court to assure that expert testimony is based on a reliable foundation. The district court granted that motion, which resulted in the dismissal of Milward’s case on summary judgment for lack of proof that benzene caused his APL.

The district court rejected Dr. Butler’s conclusion that every exposure to benzene increases the risk of APL because “it could not be tested with any known rate of error.” Milward did not challenge that ruling on appeal.

The district court determined that Dr. Butler’s “differential diagnosis” theory was flawed because she could not rule out idiopathic causes of Milward’s APL (causes that cannot be scientifically explained), but merely “ruled in” benzene exposure as a cause. The court reached that conclusion despite Dr. Butler’s testimony that every disease has a cause. While it is impossible to rule out unknown causes, when all known causes but one can be ruled out, it is reasonable to believe that the remaining known cause is the most likely cause of the disease. Milward’s attorneys apparently made no serious challenge to the district court’s ruling on appeal and the court of appeals rejected it with little analysis.

Since the “differential diagnosis” theory and the “no safe level of exposure” theory were both rejected without significant legal analysis, the appeal turned on the district court’s exclusion of Dr. Butler’s “relative risk” theory. The district court found that Dr. Butler’s “relative risk” analysis was flawed because she relied on certain epidemiological studies while disregarding a study that reached contrary results. The court of appeals agreed.

Appellate Court’s Analysis

Dr. Butler relied on studies that defined an exposure level to benzene that elevates the risk of acquiring APL. A competing study found no correlation between benzene exposure levels and the onset of APL. Dr. Butler testified that she did not consider the competing study because she believed that there is no safe level of exposure to benzene. She said that she therefore had no need to consider conflicting studies. The court of appeals concluded that Dr. Butler did not use a reliable methodology because she failed to make a reasoned analysis of studies that supported her position and studies that did not.

Milward’s lawyers argued that Dr. Butler’s methodology was sound because she relied upon reliable studies. In their view, the fact that Dr. Butler did not consider every study did not negate the reliability of the studies that supported her opinion. The appellate court, however, considered it “self-evident that, when an expert engages in a relative risk analysis in the manner that Dr. Butler did here, the district court is on firm ground” when it requires the expert to explain why she relied upon certain studies and disregarded those with contrary results.

Whether Milward’s methodology was unreliable because she did not consider a study that conflicted with her opinion is a close question. Since her opinion was supported by studies she considered to be reliable, a different court (like the dissenting judge) might hold that her failure to consider conflicting studies goes to the weight the jury should give to her testimony, not to its admissibility. Indeed, in a similar case, the Court of Appeals for the Seventh Circuit held that “Rule 702 did not require, or even permit, the district court to choose between those two studies at the gatekeeping stage.”

The Dissenting Opinion

Judge Thompson’s forceful dissent might persuade other courts to answer the question differently. Judge Thompson noted that Dr. Butler is an experienced physician who specializes in the treatment of veterans who were exposed to toxic substances during their military service. The judge thought that Dr. Butler was well qualified by her own experience to diagnose the cause of Milward’s APL without reference to any studies at all.

The dissent notes that Dr. Butler did not claim an inability to compare the sole study that challenged her opinion to other studies, but testified instead that she had no need to do so. She regarded her own experience as sufficient to validate the studies upon which she relied. According to the dissent, it was for the jury, not the judge, to decide how much weight to give to an opinion that was grounded both in relevant experience and in scientific literature.

Judge Thompson’s dissent includes “a short primer on expert opinions” that is recommended reading for anyone who wants to have a better understanding of how district judges should exercise their limited “gatekeeping” role when they decide whether expert testimony is admissible under Daubert. The opinion notes that Daubert is meant to be a liberal standard that favors the admissibility of expert opinions. The dissent clarifies the application of Daubert to medical opinions, carefully distinguishing between admissible testimony that a jury might or might not find doubtful (since weighing competing studies is the job of the jury, not the judge) and inadmissible testimony that cannot be helpful to the jury because it lacks a sound scientific foundation.

Implications for Experts

In the case from the Seventh Circuit noted above, the court concluded that the expert should have been permitted to testify that benzene caused the plaintiff’s injuries. That expert explained why the studies that supported his opinion were more scientifically reliable than the studies that found no correlation between benzene exposure and leukemia.

The lesson to learn is that an expert who relies on studies that support her opinion should be prepared to discuss studies that reached conflicting or inconclusive results. The expert should be familiar with the universe of relevant studies and should be ready to explain why the studies upon which she relied are more reliable than those that do not support her opinions. If Dr. Butler had done that, there is little doubt that her testimony would have been admissible.

Gold Scales of Justice on wood table

Florida Continues to Debate Standard for Expert Testimony

Until the state legislature decided it was time for a change, Florida followed the Frye standard for the admissibility of expert testimony. The state legislature adopted a rule governing expert evidence that parallels Rule 702 of the Federal Rules of Evidence. Widely known as the Daubert standard, that rule arguably raises the bar for the admission of expert evidence.

ExpertPages analyzed a Florida appellate opinion in 2014 that provided the state’s first in-depth discussion of how Florida trial courts are to apply the new rule. That case rejected proposed medical testimony because the expert’s opinion was not based on scientific research. The expert would have testified that a stressful employment environment caused the premature birth of the plaintiff’s baby.

About 35 states have either adopted the Daubert standard (sometimes with slight modifications) or have interpreted their existing evidentiary rules as being consistent with Daubert. The Daubert standard is widely endorsed by the business community, which regards it as a check against expert opinions that are based on “junk science” or that are unsupported by scientific research or a reliable methodology. Critics of Daubert suggest that the standard is designed to make it more difficult for plaintiffs to recover damages from businesses and insurance companies for injuries that were caused by a defendant’s negligence.

Florida Debates Daubert

The Florida Bar is considering a proposed recommendation that the Florida Supreme Court abandon the Daubert standard and return to the Frye standard. A committee of the Florida Bar that considers procedural rules and codes (including the state’s evidence code) narrowly favored the rejection of Daubert. The Bar’s Board of Governors tabled the vote at a meeting on October 16, 2015, but placed the issue on the agenda of a meeting in December.

The separation of powers doctrine arguably gives the state Supreme Court the final say over rules of evidence governing expert testimony, regardless of the state legislature’s attempt to impose the Daubert standard on the state’s judicial system. Even if the Board of Governors decides to make the recommendation, it is not clear whether the Florida Supreme Court would give the Bar’s recommendation greater weight than the legislature’s attempt to amend the evidence code.

A lawyer from the state’s largest personal injury firm argues that “Daubert only benefits rich, powerful people, and corporations or insurance companies.” Plaintiffs’ lawyers argue that Daubert increases the cost of litigation by requiring judges to hold extensive hearings before ruling on the admissibility of expert testimony. Not surprisingly, the Orlando Sentinel reports that opposition to the proposed recommendation “is coming from business groups and defense counsel.” They argue that Daubert is an essential safeguard that protects litigants from verdicts that are based on unreliable expert testimony.

Does the Standard Matter?

For all the effort that lawyers make to convince courts to adopt standards that might favor the clients they represent, it seems likely that the standard makes little difference in most cases. In the Florida case that rejected expert testimony attributing a premature birth to a stressful work environment, the trial court applied the Frye standard in rejecting the proposed expert testimony. The appellate court applied the Daubert standard and arrived at the same result.

Some have argued that the Frye standard, which admits expert evidence only if it is based on principles that are generally accepted in the scientific community, is actually more restrictive than the Daubert standard. The Daubert decision condemns Frye’s “generally accepted” standard as being too rigid. By focusing on the reliability of the expert’s methodology rather than its general acceptance, the Daubert decision may have opened the door to the admission of evidence that would have been excluded under the Frye standard.

Daubert and Supreme Court cases that followed in its wake gave trial judges substantial discretion to admit or exclude expert testimony. Most expert testimony (a DNA analysis, for example) is relatively uncontroversial and will be admitted routinely. In toxic tort and product liability cases where expert testimony is more often challenged, whether the judge will admit borderline evidence often hinges upon how the judge views expert testimony in general. Some judges are skeptical of expert testimony while other judges trust juries to decide whether experts are worthy of belief.

Florida’s struggle with the choice between Daubert and Frye may therefore be much ado about nothing. A study by Professors Cheng and Yoon concluded that basing admissibility on the Daubert standard or the Frye standard “does not make any practical difference.” Judges who are inclined to let juries evaluate expert evidence will admit expert testimony using either standard while judges who are suspicious of expert testimony are more likely to exclude it, regardless of the standard that governs their decision.

Florida’s Third Circuit Issues First In-Depth Treatment of Daubert

A recent decision from Florida’s Third District Court of Appeal provided an in-depth discussion on the differences between the old Frye standard of expert witness admissibility and the currently used Daubert test. In Perez v Bell South, the Court considered expert witness testimony in a personal injury claim, and clarified for future litigants how the Daubert requirements differed from the state’s previous Frye test. Although the decision applies only to Florida, analyzing the case is useful to attorneys who need to be aware how Daubert expert witness admissibility rules compare to the older standard.

Perez v Bell South Emphasizes Use of Daubert

Maria Perez filed a personal injury claim on behalf of her developmentally disabled son, Osmany, against her former employer for negligently creating a stressful work environment that resulted Osmany being born 20 weeks early. Ms. Perez alleged that Bell South caused her such significant difficulty that she suffered a placental abruption, which led to Osmany’s premature birth and subsequent developmental deficits. As part of her case, Maria called upon the medical expert testimony of Dr. Isidro Cardella, a board-certified obstetrician and gynecologist. Dr. Cardella testified that, in his opinion, Bell South’s refusal to allow Ms. Perez frequent bathroom breaks or limit her working hours to 40 created such stress on her body that she suffered the placental abruption.

The trial court dismissed Dr. Cardella’s expert testimony and Ms. Perez’s case because it was based solely on his opinion as a medical expert. Applying the Frye test, the trial judge determined that an opinion not supported by medical evidence or research is inadmissible.  Ms. Perez appealed, arguing that “pure opinion” testimony does not fall within the guidelines of Frye. On appeal, Florida’s Third District Court correctly made the dispute over Dr. Cardella’s testimony moot by analyzing under the state’s newly adopted Daubert standard – clarifying for attorneys, and judges, how expert witness testimony, including opinion, is to be evaluated in the future.

Daubert Test v Frye Test

Created by the 1993 Supreme Court decision in Daubert v Merrell Dow Pharmaceuticals, the Daubert standard sets forth an evidentiary rule that determines whether or not expert witnesses are permitted to testify at trial. Over the last two decades, all federal jurisdictions and over half of the states have implemented the Daubert test, however, a number of states, including California and Illinois, have yet to make the switch. Relevant to the Perez case, Florida’s legislature enacted a law that made the Daubert standard the official state rule as of July 2013.

Prior to Daubert, courts analyzed expert witness testimony under a test established in the 1923 case, Frye v United States. The Frye test simply required courts to determine if an expert witnesses testimony was based on scientific methods that are “sufficiently established” in, and generally accepted by, the scientific community to which the expert belongs. As the Perez Court pointed out, the Daubert standard, as adopted by Florida’s legislature in 2013, requires additional analysis. Ensuring that an expert’s methods are accepted and established by the greater scientific community is one of many factors that a court must consider under Daubert, as now codified in Florida’s rules of evidence.

Florida courts must consider a number of factors to ensure expert witness testimony is scientifically reliable – most notably determined by analyzing an expert’s methodology and scientific knowledge. In addition to an expert’s approach being generally accepted, courts must also consider the level of peer review it has been subjected to, the error rate that can influence his results, and the existence of professional standards that govern the operation of an expert’s investigation. The Daubert standard requires courts to look at a variety of factors, and the Perez case noted that a simple Frye evaluation of expert witness testimony is no longer sufficient in Florida.

Understanding the Daubert Standard

Reviewing Dr. Cardella’s testimony through a Daubert lens, Florida’s Third District Court of Appeal arrived at the same conclusion – his testimony was inadmissible. The pathway to the correct decision is important, however, because, as Ms. Perez’s attorneys pointed out, a Frye analysis is not sufficient to evaluate a pure opinion testimony. Using the Daubert test, which applies to any expert witness testimony, Florida courts can determine the admissibility of an expert’s analysis of facts and his opinion of the case. Under Daubert, Dr. Cardella’s testimony still fell short because he did not back his conclusions with scientifically reliable support.

Attorneys who intend to use expert witnesses must understand the proper application of the Daubert standard and be prepared to use an expert who can provide reliable, scientific knowledge to support testimony. With limited exception, the Daubert standard controls expert witness admissibility, and, as Florida’s Perez v Bell South demonstrates, Daubert is more comprehensive and thorough than the once widely-used Frye test.

Accident Reconstruction Expert Testimony Rejected by Oklahoma Court of Appeals

An interesting expert witness case out of Oklahoma this past week, as the state’s Court of Appeals dismissed expert testimony regarding the cause of an accident that injured a 12-year-old boy who was struck by a car while walking in the street. On an appealed decision, Oklahoma’s second highest court rejected two accident reconstruction expert witnesses for taking their testimony beyond the facts, and speaking directly to the key determination of negligence.

Defense Accident Reconstruction Witnesses

The incident in Moore v Blackwell occurred in September of 2007 when 12-year-old Jerrit Moore was walking alongside an interstate service road in Norman, Oklahoma. The boys were walking at night without reflective clothing or lights of any kind, and decided to cross the street in order to walk with traffic. As they crossed, the defendant, Robert Blackwell, was driving along the road. Blackwell swerved to avoid the boys, who were in the middle of crossing, and clipped Jerrit, causing him injury. Jerrit’s father filed a negligence claim seeking $10,000 in damages for Jerrit’s injuries.

As part of his defense, Blackwell called the investigating police officer, Michael Thomson, and an accident reconstruction expert, Terry Harrison. Thomson testified that his investigation concluded that Jerrit, who was in the middle of the road, was more at fault than Blackwell. Officer Thomson did not issue a citation to Blackwell for the accident because, in his opinion, the driver had not acted inappropriately considering the circumstances.

Accident reconstruction expert Harrison reaffirmed Officer Thomson’s investigation by testifying that he found no negligence on the part of Blackwell. According to Harrison’s expert analysis of the accident, Blackwell was driving within the speed limit, recognized a danger in the road, and reacted appropriately considering the circumstances. Although striking Jerrit was unfortunate, accident experts Thomson and Harrison testified that, in their opinion, Blackwell was not negligent in striking the young man.

Oklahoma Court Rules Accident Reconstruction Expert Testimony Inadmissible

At trial, Moore unsuccessfully attempted to have both experts prevented from testifying before a jury ruled in favor of Blackwell due to lack of negligence. On appeal, the Oklahoma Court of Appeals agreed with Moore and sent the case back to trial without the specific testimony offered by Thomson and Harrison. Finding that the experts spoke to the ultimate issue in the case – negligence and the cause of the accident – the Oklahoma court found that both experts had failed to provide the type of testimony that was permissible for expert witnesses.

Judge Jane Wiseman wrote, “The ultimate opinions of these two witnesses that Blackwell was fault-free and that Jerrit Moore’s negligence caused the collision are not opinions requiring special skill or knowledge, nor do such opinions constitute technical matters requiring special skill to interpret the evidence and reach a conclusion.” Neither expert offered an analysis of the facts that required their particular expertise, but instead spoke only to which party’s negligence caused the accident. According to the Court, Oklahoma law requires experts to limit their testimony to opinions of the facts and not speak to issues of negligence or fault.

Dissent Supports Use of Accident Reconstruction Experts

The difference between testifying to negligence, and offering expert accident reconstruction opinion seems difficult to comprehend, and dissenting members of the Oklahoma Court of Appeals voiced a strong argument against the decision. Judge John Fischer claimed that the majority had misinterpreted the law, and under the Daubert standard, which has been adopted in Oklahoma, both of Blackwell’s experts offered reliable and scientifically sound testimony that interpreted the facts and allowed jurors to make the necessary decision regarding negligence.

Accident reconstruction experts walk a fine line between diagraming an accident and offering their opinion on which party is negligent. Attorneys in car accident negligence cases must be acutely aware of the relevant state law, and ensure that their accident reconstruction experts carefully word testimony to explain the cause of an accident without offering conclusions that experts are not permitted to make. In Moore v Blackwell, the defendant’s attorneys allowed his experts to drift away from offering technical analysis and instead speak directly to the ultimate question of negligence – violating Oklahoma’s standards for expert witness admissibility.