Tag Archives: Daubert Standard

Using Expert Witnesses in Arbitration Proceedings

Arbitration clauses are common in commercial contracts. Some employment agreements and user agreements (the online contracts that consumers never read before clicking “I agree”) also contain arbitration clauses. 

Arbitration has been promoted as a cost-effective alternative to courtroom litigation. That may or may not be true. The filing fee to start an arbitration can be considerably larger than the fee for filing a lawsuit. Arbitrators charge a daily fee; judges are paid by the public. Court reporters charge the same fee for depositions, whether the discovery is conducted in a civil action or an arbitration.

On the other hand, the motions that extend civil litigation are usually curtailed in arbitration. Cases generally proceed more quickly in arbitration, resulting in lower attorneys’ fees for clients who pay lawyers by the hour.

Expert Witness Disclosure and Discovery in Arbitration Proceedings

Plaintiffs frequently ask an expert witness to evaluate a case before they decide whether the case is worth pursuing. For example, when a consumer purchases a product from an online vendor that injures the consumer, a lawyer might want an engineer to examine and test the product to decide whether the product’s design made it unreasonably dangerous. A lawyer may rely on that opinion when they lawyer decides to bring a product liability case.

In federal court, a consulting expert’s opinion is not usually discoverable. If the lawyer wants the expert to testify in court, however, the lawyer must disclose the expert and the expert must prepare a report that complies with federal rules. Communication between the expert and a lawyer might be shielded from discovery, but — as is true of the rule shielding the opinions of a consulting expert — courts have created a minefield of exceptions that may expose experts to broader discovery than a party anticipates.

Disclosure of experts tends to be less strict in arbitration proceedings. Arbitration agreements often limit discovery. They might do so expressly or by requiring adherence to arbitration rules that streamline discovery (such as the JAMS Comprehensive Arbitration Rules & Procedures). 

The JAMS rules require a document exchange and the identification of witnesses, including experts. They require production of “any written expert reports that may be introduced at the Arbitration Hearing” but they do not require experts to prepare reports. The rules also allow the deposition of experts by agreement or for good cause. The absence of an expert report may be good cause for taking the expert’s deposition.

When the agreement is silent, arbitrators control discovery. They generally require document exchanges, but they might not permit depositions or require experts to prepare reports. 

The limited disclosure and discovery rules in arbitration might be an advantage for parties who use expert witnesses. Lawyers may be able to speak more freely with consulting experts. Lawyers may also be more confident that documents prepared by an expert for the expert’s own use will be protected from discovery.

Admissibility of Expert Opinions

In federal court, litigants must satisfy the Daubert standard before an expert witness can testify. Federal judges interpret Daubert inconsistently, making it difficult to predict whether an expert opinion will be admitted.

State courts follow their own standards. They often modify the Daubert or Frye standards or create a hybrid rule. Litigants are challenged to assure that expert testimony fits within a state’s standard of admissibility.

Unless the arbitration agreement imposes a particular standard on the admission of expert testimony, arbitrators are likely to consider the testimony of an expert without considering admissibility of the expert’s opinion. Daubert factors that address the reliability of the expert’s methodology or the sufficiency of the facts that inform the expert’s opinion will generally determine the weight the arbitrator gives to the expert’s opinion rather than the opinion’s admissibility.

Advantages of Expert Testimony in Arbitration

In jury trials, lawyers prepare experts to explain technical language in simplified language. While experts may want to use technical jargon to enhance their credibility, they need to help jurors understand their jargon so that jurors do not become lost in the complex analysis that underlies the expert’s opinion.

Arbitrators are often chosen because they have experience deciding cases within a particular field. An arbitrator who has heard experts testify in similar cases will not necessarily need a “simplified” version of an expert’s reasoning. While jurors who do not understand an expert’s testimony cannot ask for clarification, an arbitrator is free to do so. Arbitration may therefore streamline an expert’s testimony while making it more likely that the decision-maker understands the expert’s opinion.


Screening Experts for Conflicts of Interest and Bias

Lawyers must consider several factors when they choose an expert witness. The expert’s qualifications, reputation, and ability to communicate effectively are key considerations. The expert’s location and the lawyer’s budget are practical issues.

The potential for a conflict of interest is a factor that lawyers tend to forget. Fortunately, actual conflicts are rare. Experts are also challenged when they allegedly show a clear bias for the party that hired them. While those challenges are not usually successful, lawyers need to think about the issue of bias before retaining an expert witness.

Courts are reluctant to disqualify experts based on perceived conflicts or claims of bias. Courts tend to view those issues as going to credibility rather than admissibility. 

Even if a potential conflict does not bar an expert from testifying, lawyers want to hire credible experts. Lawyers need to consider possible challenges to an expert’s credibility based on perceived conflicts or allegations of bias. Screening experts for conflicts and bias should therefore be part of the lawyer’s assessment of potential experts.

Prior Work for an Adverse Party

Courts have the power to exclude an expert’s testimony when the expert has provided services to the opposing party. Courts exercise their power to bar the testimony of an expert who has “switched sides” when they deem it necessary “to protect the integrity of the adversary process, protect privileges that otherwise may be breached, and promote public confidence in the legal system.” 

Whether the expert will be disqualified generally depends on whether the expert received confidential information from the party that is relevant to the current lawsuit. A lawyer’s mental impression of the strengths and weaknesses of relevant claims against that lawyer’s client is an example of confidential information.

When there is a dispute about the expert’s receipt of confidential information, courts ask whether it was reasonable for the adverse party to believe that it had entered into a confidential relationship with the expert. If so, they examine the evidence to decide whether confidential information was actually shared with the expert.

Lawyers need to balance the risk of conflict against the reality that hiring an expert who was once retained by the opposing party may be advantageous. An expert’s willingness to work for both sides might be seen as evidence of the expert’s impartiality. Of course, it might also be seen as evidence that the expert is a “hired gun,” but that is a challenge facing every retained expert in every case.

When an expert has worked for the adverse party, lawyers nevertheless need to be wary. There is always a risk that the opposing party will claim that it shared confidential information with the expert. A lawyer will need to explore the expert’s relationship with the opposing party in detail and will need to assess the risk that the expert might be disqualified. If that risk is significant, the lawyer should consider whether conflict-free experts with similar qualifications are available.

The screening process should start by asking the expert whether she has any past experience with the adverse party or its lawyers. Conducting an online search for cases in which the expert testified will provide at least partial confirmation that the expert has no conflict. Still, since experts do not always testify and since it is difficult to learn of past employment as consulting experts, it is important to have a candid conversation with a potential expert witness about any contact the expert has had with an opposing party, even if the expert did not testify for that party.


Bias is often alleged by an opposing party. An expert’s consistent employment by a particular industry or group of litigants might give rise to claims of bias, but those claims are attacks on credibility that juries should resolve.

Bias may also be reflected in unreliable methodologies or a selective application of facts. Courts might disqualify experts for bias indirectly by applying the Daubert standard more strictly when there is evidence that bias may have affected the reliability of an expert’s conclusions.

Some courts have suggested that experts who base opinions on experiments or research done outside the context of litigation are more likely to produce reliable results than experts who are hired by a particular industry or group to form opinions that are specific to a lawsuit. After Daubert was remanded to the Ninth Circuit, Judge Kozinski wrote that “experts whose findings flow from existing research are less likely to have been biased toward a particular conclusion by the promise of remuneration; when an expert prepares reports and findings before being hired as a witness, that record will limit the degree to which he can tailor his testimony to serve a party’s interests.” 

That line of thought suggests that courts might be more inclined to exclude experts when they have not conducted research or expressed opinions about a particular subject before they are hired to present expert testimony. Selecting an expert who has researched a scientific question outside the context of litigation might therefore avoid claims of bias.

Still, the fact that an expert has not conducted research prior to being retained does not mean that the expert’s methodology will be tainted by bias. Courts are more likely to be troubled when, for example, an expert prepares peer-reviewed writings and fails to disclose “her potential bias because of her direct involvement in litigation in the . . . cases on which she reported.” 

Experts may also demonstrate bias when they prepare reports that contradict prior writings or testimony given in other cases if the contradictions cannot be explained by the differing facts that the expert considered. To screen against potential claims of bias, lawyers should always review an expert’s past writings and testimony to determine whether it might conflict with opinions the expert will be asked to express.

gun and bullets

Court to Evaluate Validity of Forensic Ballistics

A Virginia court will evaluate the validity of forensic ballistic and firearm examination.

The Crime

On February 17, 2018, 74-year-old Mary Jackson and her pregnant granddaughter, 33-year-old Tiffany Byers, were found shot to death at home. The body of Byers’ husband, 45-year-old Aaron Byers, was later found in a shallow grave on a property owned by 37-year-old Paul Brock.

Justin Collins, who was Mary Jackson’s grandson and Tiffany Byers’ brother, testified that he was at the property at the time of his grandmother’s and sister’s shooting. Collins said that he heard a gunshot and did not see the shooter, but heard his sister say, “Paul, you shot me.” Collins later identified a photo of Paul Brock as a person that he recognized as previously visiting his home.

Brock was charged with three counts of capital murder, fetal homicide, tampering with physical evidence, and being a first-degree felony offender in connection with the deaths. Brock would later admit to killing Aaron Byers, but said it was done in self-defense. Brock claims that he had nothing to do with the deaths of Mary Jackson and Tiffany Byers.

The Forensic Examination

A forensic examiner took apart and examined the bullets that were used to kill Mary Jackson, Tiffany Byers, and Aaron Byers. She examined the pieces under a microscope and determined “that the lands and grooves on each individual bullet were of similar agreement, which is what they call it to determine if they were fired from the same gun … all the bullets from all the bodies came from the same weapon.”

The Commonwealth wanted to present this evidence, but Brock’s defense team objected. The court held a Daubert hearing to determine whether the evidence should be admitted.

The Daubert Hearing

Gregory Klees, an examiner with the Bureau of Alcohol Tobacco Firearms and Explosives, testified as an expert witness for the Commonwealth. Klees testified that the firearms testing was valid and that the theories and techniques of ballistics examination have been subject to review for over 100 years. When asked whether he knew of any jurisdictions that did not allow firearms examination testimony, Klees responded, “Except for some individual court cases, I don’t know of any standard or federal courts that have excluded it all together.”

Brock’s defense team called Dr. Jeff Salyards, a Principal Analyst with Compass Scientific Consulting and former Chief Scientist for the US Army Criminal Investigation Laboratory as an expert witness. Dr. Salyards noted his concern with the validity of the peer-review process used by ballistic examiners. Dr. Salyards testified that until recently, the firearms examination field did not use blind review studies. Dr. Salyards also stated that the average industry error rate of less than 2 percent could be attributable to the way that studies surrounding the forensic science had been set up.

At the conclusion of the hearing, Whitley County Circuit Court Judge Dan Ballou ordered both sides to submit briefs on their arguments. The case is scheduled for one additional status hearing prior to Brock’s jury trial, which is scheduled to begin on September 8, 2021. 

Judge in courtroom

Mississippi Affirms Conviction Based on Groundless Expert Testimony

Curtis Valentine, while driving at a high speed, failed to maintain control of his vehicle on a sharp curve. Valentine’s vehicle left the road and crashed into a tree. His front-seat passenger died.

Police officers who investigated the crash reported that Valentine was “acting crazy,” “irate, walking around,” and “constantly yelling.” Connie Dolan, an officer of the sheriff’s department who was described as an accident reconstruction expert, observed no skid marks. She smelled the odor of marijuana in the vehicle.

Dolan requested a warrant to obtain a sample of Valentine’s blood. After his blood was drawn at a hospital, Valentine was told that his passenger had died. Valentine “went ballistic” and shoved Dolan.

A few days later, Dolan interviewed Valentine in his home. Valentine said that he smoked marijuana the night before and the morning of the crash. He also said that he had taken Xanax that was prescribed to his mother. He admitted that he had taken his eyes off the road.

Prosecution’s Expert Testimony

A toxicologist at the Mississippi Crime Lab. Alyssa Bailey, testified that Valentine’s blood had tested positive for THC, Topamax (an anti-seizure medication), and Xanax. Bailey claimed that Valentine was under the influence of all three drugs.

Bailey testified that Xanax and Topamax are central nervous system depressants that can impair reaction times. She testified that those drugs can also affect judgment, motor function, and coordination. She also testified that THC can impair reaction time. She concluded that Valentine had smoked marijuana “fairly recently.”

Defense Expert Testimony

Dr. James O’Donnell, an expert in pharmacology, testified for the defense. Dr. O’Donnell testified that the trace amount of THC in Valentine’s blood was insufficient to have any clinical effect.

The lab reports contained no measurement of the other two drugs, making it impossible to say that they had an effect on Valentine. Based on the reports and on his observations of Valentine on body cam recordings, O’Donnell expressed the opinion that Valentine was not under the influence of any drug.

Sufficiency of Evidence

A jury found Valentine guilty of “aggravated DUI causing death.” In Mississippi, driving under the influence means driving while the ability to control a vehicle is lessened due to a state of intoxication.

On appeal, Valentine argued that the prosecution presented no evidence that he was under the influence. The state supreme court disagreed and affirmed the conviction.

Valentine maintained that the accident occurred because he was speeding. Mississippi precedent establishes that speeding is not evidence of being under the influence of an intoxicant.

The state supreme court noted that Valentine wasn’t just speeding but was driving at 70 to 90 mph when he approached a curve that was controlled by a 20-mph speed limit. The court seemed to think that “speeding really fast” is evidence of intoxication even if a lesser speeding offense is not. No expert testimony suggested that driving at any particular speed is a sign of intoxication.

The accident reconstruction expert testified that Valentine should have seen the curve and the speed limit sign. Drivers are frequently involved in accidents that they should have avoided. That fact does not establish their intoxication.

The accident reconstruction expert also testified that Valentine was having a “rage episode” at the scene and later when he was in the hospital. Accident reconstruction is based on principles of engineering, not psychology. Someone who was just involved in an accident and whose lover had just died might well respond to tragedy with rage. Hysterical behavior after a crash is not evidence of intoxication before a crash. The reconstruction expert’s testimony falls fall short of proof of intoxication.

Toxicologist’s Unsupported Testimony

The court was satisfied that intoxication was established by the toxicologist’s testimony. Yet the toxicologist had no scientific basis for her opinion. No studies establish a level of THC in blood that is consistent with intoxication. In fact, the National Institute of Justice recently reported that “there is little evidence correlating a specific THC level with impaired driving.”

Xanax can certainly affect driving skills, but the defense expert testified that the lab results did not establish the amount of Xanax that was present in Valentine’s blood. That testimony was apparently uncontradicted. The scientific evidence established only that Valentine used drugs at some point. It did not establish that he was under the influence of those drugs when he was driving.

As the dissent noted, Bailey did not testify about the amount of Xanax that is needed to have an impact on a driver’s ability to drive safely. Nor did she testify that the amount of Xanax in Valentine’s blood was sufficient to impair the ability to control a vehicle. Rather, she gave conclusory but unsupported testimony that Valentine was under the influence. The dissent concluded that Bailey’s testimony did not satisfy Mississippi’s legal standard for DUI “because Bailey could not and did not say whether the drugs had lessened Valentine’s normal ability for clarity and control.”

Proposed Jury Instruction

Bailey should never have been allowed to testify that Valentine was “under the influence” because she had no scientific data to form that expert opinion. In fact, she testified that, in her expert opinion, having any intoxicating substance in a driver’s blood means that the driver is under the influence of that substance.

Bailey’s testimony was outrageous. There is no scientific basis for the view that having a measurable amount of a drug in a driver’s blood causes a driver to be under the influence of that drug. It is for that reason that some states have enacted laws making it unlawful to operate a vehicle with any detectable amount of an unlawful drug in the driver’s blood. Those laws save the prosecution the trouble of proving that the drug made any difference in the driver’s ability to drive safely. Mississippi has no such law.

To counter Bailey’s testimony, the defense asked the court to instruct the jury that that the mere consumption of a drug is insufficient to prove that a criminal defendant was driving “under the influence” of an intoxicant. The trial judge instead gave the standard instruction that the state was required to the state to prove that the defendant was “driving in a state of intoxication that lessens a person’s normal ability for clarity and control.”

Since “under the influence” means a lessening of the normal ability to control a vehicle, Bailey’s testimony allowed the jury to conclude that the mere consumption of drugs lessens the ability to control a vehicle. The standard instruction did nothing to counter the prejudicial impact of Bailey’s blatantly false testimony.

As the dissent noted, “Valentine’s proposed jury instruction was an accurate statement of the applicable Mississippi law and was needed not only to inform the jury of all the elements of the offense but also to provide the jury a correct statement of Mississippi law on the element of driving under the influence, which had been stated incorrectly by the State’s toxicology witness.” In its eagerness to uphold a conviction, the majority was unmoved by the dissent’s reasoned analysis.

Lessons Learned

It isn’t clear whether Valentine’s lawyer moved to exclude the toxicologist’s testimony on the ground that it failed to satisfy the Daubert standard. It seems likely that the testimony blindsided the lawyer at trial. 

Valentine’s lawyer objected to the toxicologist’s unfounded testimony when it was offered on the ground that it misstated the law. He offered his own expert’s testimony to counter the notion that unmeasured quantities of drugs prove impairment of the ability to control a vehicle. He also proffered a jury instruction that would have corrected the toxicologist’s misstatement of the law. Valentine was nevertheless convicted and his conviction was inexplicably upheld on appeal. 

Mississippi purports to follow the Daubert standard. Bailey’s testimony was unsupported by a reasonable scientific methodology because no scientific literature establishes that the presence of any amount of Xanax or TCH in a person’s drug affects the ability to control a vehicle. Bailey appears to have given that testimony to help the prosecution obtain a conviction, not because the testimony is grounded in science. Sadly, some court decisions all but ignore the Daubert standard in criminal cases and allow experts to favor the prosecution with slanted testimony. The Mississippi Supreme Court’s decision is an unfortunate example of such a case.


Missouri Adopts Daubert

To large corporations, insurance companies, and their lobbyists, Missouri is a “judicial hellhole.” To consumers and injury victims, Missouri is a state where business lobbyists have not made it impossible for them to win fair compensation when they are harmed by corporate wrongdoing. Both perspectives are poised to change.

Corporate lobbyists have been fierce advocates for the Daubert rule, which (from their perspective, at least) restricts the admissibility of expert testimony, potentially making it more difficult for plaintiffs to win cases. They realized their dream with the election of Eric Greitens as governor. One of the legislature’s first agenda items was to pass a Daubert bill. Gov. Grietens signed the bill into law in March.

According to Gov. Grietens, Missouri’s adherence to the Frye standard allowed “trial lawyers to come to Missouri, pick our pockets, and hurt our businesses.” The governor cited no example of a verdict against a business that was undeserved. He also failed to identify any “crooked trial lawyers” or “shady witnesses” who affected the outcome of a Missouri trial, although he derided them at the signing ceremony. While the governor’s incendiary language reflects the view of insurance industry lobbyists, it detracts from even the appearance of fair-minded lawmaking.

Again citing no evidence, the governor suggested that the Frye standard “makes us less competitive than other states — at a time when we are fighting for every single job.” Signing the bill, the governor said, sent “a signal to the rest of the country that Missouri is open for business.” Opponents of the bill argued that it sent a message that businesses will no longer be held accountable when their negligent conduct harms consumers.

Daubert in the States

The Daubert standard is named after a United States Supreme Court decision that changed the federal standard for admitting expert testimony. The Daubert standard requires trial judges to act as a gatekeeper to prevent juries from hearing expert testimony unless the expert has applied a reliable methodology in a reliable way to facts that are sufficient to support the expert’s conclusion.

The Missouri legislature’s last attempt to enact a Daubert bill was vetoed by Gov. Jay Nixon, a Democrat. The Florida legislature recently passed a Daubert bill, but the Florida Supreme Court declined to adopt it. A large majority of states have adopted at least part of the Daubert standard, but making a state-by-state comparison is difficult because courts that implement some version of the Daubert rule do not always agree upon its meaning.

Does Daubert Matter?

In a routine case, the standard for expert witness admissibility makes no difference. A treating physician who testifies about the injuries a patient suffered in a car accident will be allowed to give the same testimony regardless of the standard. Daubert hearings in routine cases, however, might drive up the cost of litigation and place an unnecessary burden on overworked judges.

Some lawyers, including some legal scholars, see the Daubert standard as restricting expert testimony by keeping “junk science” out of the courtroom. While Daubert advocates tend to view “junk science” in the context of toxic tort and product liability claims that can only be proved with expert evidence, the Daubert standard has also been used in criminal cases to restrict questionable expert testimony about cellphone location data and the ability to match a bitemark to a suspect.

Other lawyers, including some legal scholars, view Daubert as liberalizing the admissibility of expert testimony. They point out that expert opinions based on new or novel scientific techniques were excluded under the Frye standard because they were not “generally accepted” by the scientific community, but are admissible under Daubert if the new methodology is reliable.

Both of those views have some merit. Daubert both restricts the admissibility of expert evidence by keeping juries from hearing unreliable opinions while opening the door to reliable opinions that are based on new views of science. But in any particular case, how Daubert should be applied is up to the judge, and judges have widely varying views about their gatekeeping role.

Some judges seem to expect experts to express opinions with certainty, which is contrary both to the probabilistic nature of science and to the burden of proof in civil cases. Some judges distrust experts, particularly in civil cases (such as pharmaceutical injury claims) where causation is particularly difficult to prove. Those judges are inclined to resist admitting expert testimony.

Other judges believe it is for the jury, not the judge, to decide whether an expert opinion is trustworthy. Those judges, who tend to recognize that judges are trained in law, not science, are more inclined to admit expert testimony.

Different judges may therefore apply the same Daubert standard to similar facts and arrive at different results. One scholarly analysis concluded that court decisions applying Daubert have been “nonuniform, inconsistent, and irreconcilable.” In the end, notwithstanding the state’s rancorous Daubert debate, how Missouri judges feel about expert evidence may be more important than the standard they apply.

Florida Supreme Court

Florida Supreme Court Rejects Daubert Rule

The Florida Supreme Court has rejected a legislative attempt to impose the Daubert standard of expert witness admissibility on Florida courts. As ExpertPages earlier reported, the Florida Bar’s Board of Governors asked the Florida Supreme Court to set aside a legislative attempt to force the state’s judiciary to use the Daubert standard when deciding whether to admit expert testimony.

The Board of Governors narrowly sided with lawyers who represent injury victims when it asked the Court to reject Daubert. They argued that Daubert benefits corporations and other powerful defendants by restricting the evidence that might be used to prove their wrongdoing. The business and insurance community, on the other hand, contended that Daubert provides a safeguard against the use of “junk science” to sway juries.

The Legislature v. The Court

Florida courts have historically followed the Frye standard to determine the admissibility of expert testimony. As applied in Florida, the Frye standard requires trial judges to exclude expert testimony that is based on a new or novel scientific methodology unless it is grounded in principles that have gained general acceptance in the relevant scientific community.

The Florida legislature passed a law that purported to require Florida courts to follow the Daubert standard of expert witness admissibility. That standard generally requires judges to determine the reliability of expert testimony and to exclude opinions that are not based on the reliable application of a reliable methodology to sufficient facts or data.

While it is the legislature’s responsibility to make law, the Florida Supreme Court considers it the judiciary’s responsibility to craft the procedural rules that govern court proceedings. Since rules of evidence are generally regarded as procedural rules rather than substantive laws, the Florida Supreme Court has the power to decide whether evidentiary rules enacted by the legislature will be followed by the courts, at least to the extent that they are procedural.

Florida Bar Recommendation

The Florida Bar’s Code and Rules of Evidence Committee recommended that the Florida Supreme Court decline to adopt the legislatively enacted Daubert standard. The Committee’s Majority Report noted that the legislature wanted to prohibit “pure opinion testimony” in Florida courts, while Florida courts have long endorsed the admissibility of “pure opinions” from qualified experts.

Florida precedent establishes that “pure opinion testimony,” such as a doctor’s diagnosis or a psychologist’s conclusion that a defendant is not competent to stand trial, does not need to satisfy the Frye standard. “Pure expert opinions” are those that are based on training and experience and that might assist the jury even if other experts might dispute them.

Florida precedent cautions trial courts to “resist the temptation to usurp the jury’s role in evaluating the credibility of experts.” Whether conclusions drawn by experts are credible is a question for juries, not judges, to resolve. The Committee argued that a litigant’s constitutional right to trial by jury would be diminished if judges were to decide in the first instance whether an expert’s conclusions are reliable.

The Committee also raised practical objections to Daubert, noting that the standard places an unreasonable burden on courts and litigants while prompting judges to make inconsistent decisions that are based on their own preferences rather than a consistent rule of law. In the end, however, it was the constitutional concern that carried the day in the Florida Supreme Court.

Florida Supreme Court Rejects Daubert

In a brief opinion, the Florida Supreme Court noted that it typically follows a policy of adopting procedural rules that the state legislature enacts. When the Court has doubts about the constitutionality of a procedural change, however, the Court may decline to adopt it.

The Court noted that the Committee raised “grave constitutional concerns” about the impact that the Daubert rule would have on the right to a jury trial and on access to the courts. For that reason, the Court declined to adopt the legislature’s changes to Florida’s rule regarding expert witness admissibility.

The argument that the Daubert standard is unworkable, that it leads to inconsistent results, and that it increases the cost of litigation might have played a behind-the-scenes role in swaying the Florida Supreme Court. Court decisions applying Daubert have been described as “nonuniform, inconsistent, and irreconcilable.”

Constitutional concerns, on the other hand, have not prevented the federal government and the majority of states from adopting the Daubert rule. The Florida Supreme Court made no attempt to address or resolve those concerns, but merely indicated that they were sufficiently grave to warrant its rejection of the Daubert rule “to the extent it is procedural.”

Whether some or all of the Daubert standard is substantive or procedural is a question that will probably need to be resolved in a future case. It is generally recognized, however, that rules governing the admissibility of evidence are procedural since they tell courts how to conduct trials without affecting the substantive rights of litigants. It is therefore likely that the Supreme Court’s decision spells the death of Daubert in Florida, at least for the near future.

Car Crash

Engineering Expert Not Required to Test Alternative Product Design Before Testifying

When product liability cases are based on the claim that a product was defectively designed, plaintiffs typically offer proof that a better design would have produced a safer product. In Quilez-Velar v. Ox Bodies Inc., the Court of Appeals for the First Circuit was asked to decide whether an expert witness should be permitted to testify about an allegedly safer alternative design when the expert had not tested that design. The Court affirmed the decision of the federal District Court of Puerto Rico to permit the expert testimony.

Facts of the Case

Maribel Quilez-Bonelli was driving a Jeep Liberty on a highway overpass in the City of San Juan, Puerto Rico. Maribel struck the rear of a truck that was either stopped or moving very slowly. The truck was owned by the Municipality of San Juan and was operated by San Juan employees.

Since heavy trucks are made to ride higher off the ground than cars, a car that rear-ends a truck may roll under the truck. When that happens, the top of the car is usually destroyed, resulting in fatal injuries to the driver and passengers.

Maribel’s Jeep traveled under the truck. The truck body hit Maribel in the head. She died from her injuries.

Wrongful Death Lawsuit

Most commercial trucks are required to have rear underride guards. An underride guard hangs down from the back of the truck. Its purpose is to keep a car from passing beneath the truck in the event of a rear-end collision. The San Juan truck had a rear underride guard that was manufactured by Ox Bodies, Inc., but the underride guard failed to prevent the Jeep from rolling under the truck.

Maribel’s husband and other family members sued the Municipality of San Juan and certain other defendants in a Puerto Rico court. They eventually sued Ox Bodies in federal court. They alleged that the rear underride guard attached to the back of San Juan’s truck was defectively designed.

A trial was held in the federal case. The judge instructed the jury that if the product’s design caused Maribel’s death, the burden was on Ox Bodies to prove that the benefits of the design outweighed its risks. The judge also instructed the jury that it could consider the feasibility of alternative designs in making that decision.

The jury found Ox Bodies liable and awarded Maribel’s family $1.2 million in wrongful death damages. The jury found that Ox Bodies was 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} at fault for the accident and that the San Juan employees were 80{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} at fault. The jury assigned no negligence to Maribel.

Ox Bodies appealed. Among other grounds, Ox Bodies contended that the trial judge should not have allowed Maribel’s expert witness to testify about an alternative design that could have made the underride guard safer.

Daubert Challenge

Before the trial, Ox Bodies filed a Daubert motion to exclude the testimony of Perry Ponder, a mechanical engineer who testified as an expert witness for Maribel’s family. Ponder has professional experience designing, testing, and teaching about underride guards.

According to Ox Bodies, Ponder’s report included no scientific analysis or calculations to support his opinion that an alternative design would have produced a safer underride guard. Ox Bodies also complained that Ponder did not actually construct and test the design that he believed to be safer.

The trial court did not hold a Daubert hearing because Ox Bodies did not ask for one. Instead, Ox Bodies relied on Ponder’s deposition testimony and expert report. The court ruled that Ox Bodies failed to demonstrate that Ponder needed to conduct additional calculations or testing in order to reach an opinion about the comparative safety of an alternative design. The court therefore denied the motion to exclude Ponder’s testimony.

Ponder’s Trial Testimony

At trial, Ponder testified that the underride guard’s design was defective because it left 16 inches on both sides of the truck’s rear end with no protection and because the underride guard was not sufficiently braced against potential impacts. He also opined that the crash protection built into the Jeep was rendered ineffective because the Jeep went under the truck instead of being stopped by the underride guard.

Ponder testified that a guard that covered the entire width of the back end, supported by diagonal bracing and a vertical support, would have been a safer design. On cross-examination, Ponder testified that he did not build or crash test his proposed alternative design. He acknowledged that his design had never been adopted by manufacturers of tilt or dump beds. Ox Bodies renewed their objections to Ponder’s testimony based on those admissions, but the trial court decided that the jury would be allowed to consider Ponder’s expert testimony.

Appellate Decision

On appeal, Ox Bodies argued that Ponder should not have been allowed to testify about the alternative design because he did not test it before offering his opinion that it represented a safer alternative. Ox Bodies contended that his testimony was unreliable because it was not based on adequate data.

The Court of Appeals concluded that Ox Bodies’ argument was based on “a profound misunderstanding of Daubert.” While testing is “one of the most common and useful reliability guideposts,” the First Circuit has never required an expert to build and test an alternative product design before concluding that the design is safer.

Ponder based his conclusion on information from several sources, including crash test data and studies of underride guard deigns. Ponder testified that the information was transferable to underride guards for any kind of vehicle. He also based his conclusions on stress calculations and photogrammetry analysis. Ponder explained why he rejected Ox Bodies’ claim that the calculations performed by its own expert were necessary to determine the superiority of the alternative design.

Following First Circuit precedent, the Court held that juries should ordinarily decide whether to believe expert testimony that is arguably “shaky.” Ox Bodies had ample opportunity to cross-examine Ponder and it presented its own expert testimony. Whether Ponder’s testimony was worthy of belief was for the jury to decide.

Courts that take a less liberal view of Daubert might disagree with the First Circuit’s reasoning. It is important to understand, however, that the gatekeeping role belongs to the trial judge, while an appellate court plays a more limited role when it reviews the trial court’s decision. Since the trial judge applied Daubert to the facts in a reasonable way, the Court of Appeals did not disturb the court’s ruling.

Meade and Prettyman Courthouse

D.C. Court of Appeals Adopts Daubert

The court that first adopted the Frye standard of expert witness admissibility has formally jettisoned that standard in favor of the Daubert standard. The D.C. Court of Appeals has now joined the federal courts and the majority of states in accepting Daubert as the standard under which the admissibility of expert testimony should be evaluated.

Evidence in the D.C. Court System

The District of Columbia Court of Appeals, like the District itself, is an oddity in American law. The District falls under federal jurisdiction but in most respects it operates as a state. An elected D.C. Council has the power to pass laws, but the laws are subject to the approval of Congress. The District’s trial courts, although operated by the federal government, are separate from the federal courts that decide federal cases. Trial court decisions in the District are appealed to the D.C. Court of Appeals, which describes itself as “the equivalent of a state supreme court.”

The District has not codified its own rules of evidence. Courts in the District are not bound by the Federal Rules of Evidence, although they often turn to the federal rules for guidance. In many instances, the D.C. Court of Appeals has adopted the federal rule, although sometimes in modified form to retain elements of common law rules it has historically followed.

The Competing Standards of Frye and Daubert

The Frye standard for the admission of expert testimony asks whether the expert’s opinion was based on principles that had been generally accepted within the relevant scientific community. The Frye standard was created by the D.C. Court of Appeals in Frye v. United States, a case it decided in 1923. Most states adopted the Frye standard in the years that followed.

State court reliance on the Frye standard changed dramatically after the United State Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals. The Daubert decision interpreted Rule 702 of the Federal Rules of Evidence to require a broader test for expert evidence admissibility than Frye imposed. Under Daubert, judges ask whether the expert’s opinion is based on sufficient facts or data, whether the proposed evidence is based on a reliable methodology, and whether the expert has reliably applied the methodology to the facts.

Unlike the Frye standard, the Daubert standard does not require expert opinions to be based on theories that have gained widespread acceptance, provided that the expert applied a reasonable methodology in a reasonable way to facts that are sufficient to allow the expert to form an opinion. In that sense, Daubert broadened the universe of admissible expert evidence, although many of its proponents praise it for narrowing the range of “junk science” and other unreliable expert evidence that can be admitted in a trial.

Motorola v. Murray

All of the judges on the D.C. Court of Appeals participated in the court’s decision in Motorola v. Murray. The case involved a claim that long-term exposure to cell-phone radiation causes brain tumors. After weeks of pretrial hearings, the trial judge decided that most of the testimony offered by the plaintiffs’ experts would be admissible under the existing Frye standard, but most would be inadmissible under a Daubert standard.

According to the trial judge, the different results were attributable to court decisions that limited the Frye inquiry to whether an expert’s methodology was generally accepted and thus presumptively reliable. Unlike Daubert, the Frye standard did not allow courts to ask whether the expert applied the methodology in a reliable way. Under Frye, that question was for the jury to decide.

D.C. Abandons Frye Standard

In Motorola, the D.C. Court of Appeals recognized that the Daubert standard “in some respects relaxed traditional barriers to opinion testimony.” Opinions that are based on the reliable application of a reliable methodology to sufficient data are admissible even if the methodology has not been generally accepted. At the same time, the Daubert standard, unlike Frye, examines the expert’s application of the methodology. Under both Daubert and Frye, whether the expert’s conclusions are correct is for the jury to decide — but only if the judge allows the expert to testify.

The court recognized that Frye has been criticized for being “antiquated and out-of-step with modern science.” At the same time, the court noted that Daubert has been faulted “for producing inconsistent results, for making unqualified judges evaluate the work of scientists, and for invading the province of the jury.”

The court decided to adopt Daubert in both civil and criminal cases because it believed that Daubert, despite its flaws, will lead to “better decision-making by juries and trial judges alike.” Noting that the transition from Frye to Daubert will be difficult and that decisions in individual cases will probably be inconsistent, the court expressed confidence that trial courts would be guided by decisions of other jurisdictions that have adopted the widely-used Daubert standard. Finding definitive guidance might be challenging, however, given that appellate courts often disagree about the proper scope of a judge’s gatekeeping role under Daubert.

The court also cautioned that Daubert requires “a delicate touch” if judges are to avoid substituting their own judgment for conclusions that a jury should draw. The judge’s role as a gatekeeper is meant to prevent unsound evidence from reaching the jury. It is not meant to be a replacement for the adversary system of justice. The court noted that reliable applications of reliable methodologies can produce conflicting opinions, and emphasized that judges must take care not to evaluate the expert opinion itself. Only a jury can decide whether an opinion is credible.

Concurring Opinion Cites Doubtful Forensic Evidence

Judge Easterly’s notable concurring opinion urged judges applying Daubert to give special scrutiny to the opinions of forensic experts, even if the judges have grown used to admitting expert forensic opinions routinely under Frye. Judge Easterly called attention to expert methodologies that have been justly criticized as causing wrongful convictions. In particular, Judge Easterly called on trial court judges to pay special attention to the PCAST report and its recommendations for applying Daubert to dubious scientific methodologies that contribute to unreliable criminal convictions.

Photo Credit: Meade and Prettyman Courthouse, by AgnosticPreachersKid, CC BY-SA 3.0.

Court Allows Securities Expert to Testify Over Daubert Objections

Court Allows Securities Expert to Testify Over Daubert Objections

To meet the Daubert standard of admissible expert testimony, the expert must be qualified and the expert’s opinion must be based on reliable data. When should the judge, acting as a gatekeeper to shield the jury from speculative or unfounded testimony, exclude the expert’s opinion? Conversely, when should the judge trust the jury to decide whether an expert is qualified and whether the expert’s opinion is reliable?

Those questions go to the heart of the many conflicting interpretations of the Daubert standard. A district court judge in the Southern District of New York recently applied the Second Circuit’s liberal standard of expert witness admissibility in deciding that a securities expert should be permitted to testify as an expert, despite his limited experience with the kind of securities that were at issue in the case and despite arguable flaws in his analysis.

Facts of the Case

The Securities and Exchange Commission (SEC) sued Revelation Capital Management and its CEO, who was also its founder and sole shareholder. The SEC accused Revelation of violating a rule that prohibits short selling, and then purchasing, certain securities. The rule applies to a “firm commitment offering.”

Revelation based its defense on the premise that the securities, offered by a Canadian fund, involved a “best efforts offering” rather than a “firm commitment offering.” The difference between the two securities underwritings has to do with whether the selling agent guarantees the sale of all offered shares to the issuer or merely promises to use its best efforts to sell them.

Since the difference between “firm commitment” and “best efforts” underwritings will be obscure to the average juror, the SEC wanted to rely on an expert witness to fortify its position. The SEC notified Revelation that it intended to call Guy Erb to testify about the meaning of “firm commitment” as that term is understood in the securities industry, and to express the opinion that the Canadian securities involved a firm commitment offering, not a best efforts offering.

Revelation notified the SEC that (in addition to its securities expert) it intended to call Dennis Dumas as an expert witness. Revelation, a Bermudian company, wanted Dumas to testify about the factors that companies outside the United States consider when they determine whether a foreign securities transaction will be subject to American law. Dumas’ expert report expressed the opinion that the Canadian offering was not consistent with offerings that fall within the jurisdiction of American law.

Each party moved to exclude the other party’s expert witness. The court decided that the SEC’s expert should be allowed to testify but barred the testimony of Revelation’s expert.

Expert Testimony Regarding Applicability of SEC Rules

The district court easily decided that Dumas’ testimony was not relevant. Dumas proposed to testify that market participants such as Revelation would not have understood that the transaction was subject to SEC rules. The court concluded that whether the SEC’s rules applied was a legal issue for the court to decide, not a factual issue for the jury to resolve. Revelation’s understanding (or misunderstanding) of the rules was not relevant to the legal issue and did not provide a defense for the jury to consider. Since Dumas’ proposed testimony was not relevant to any issue of fact, the court excluded his testimony.

Challenge to Qualifications of SEC’s Expert

A more difficult question involved Revelation’s contention that Erb was not qualified to testify as an expert. Revelation contended that Erb was unqualified because he had experience with only a handful of securities underwritings, all of which were firm commitments. According to Revelation, Erb’s lack of experience with best efforts underwritings, and his minimal experience in general, made him an unqualified to testify.

Applying the Daubert standard of admissibility, the court asked whether Erb had “superior knowledge” that was relevant to the subject matter of his testimony. The court relied on Second Circuit precedent, which it characterized as having a “liberal thrust” and a “general approach of relaxing the traditional barriers to opinion testimony.” Notably, that approach is at odds with the view that Daubert and Rule 702 of the Federal Rules of Evidence are meant to restrict the admissibility of expert evidence.

The court was not disturbed that Erb’s experience was not “directly on point.” The court noted that expertise in a “closely related field” can substitute for experience in a pertinent specialized area. Erb had a quarter century of experience in international finance and a dozen years of experience working in the securities industry. He has handled international securities underwritings, including firm commitment offerings. The fact that he has not directly handled best efforts underwritings did not disqualify him from opining about the securities industry’s understanding of the difference between the two. To the extent that Erb’s qualifications can be challenged, the court decided that the challenge should be made during cross-examination, giving the jury a chance to evaluate how Erb’s experience affects the credibility of his opinions.

Challenge to Reliability of Expert Opinion

Revelation also based its Daubert challenge on the alleged unreliability of Erb’s opinions. Revelation contended that Erb failed to consider sufficient facts and data to justify his opinion. In support of that contention, Revelation pointed to documents and witness statements that allegedly contradicted Erb’s expert opinion.

Again turning to Second Circuit precedent, the district court noted that “not every flaw in an expert opinion warrants exclusion of the testimony.” An opinion is unreliable only when the data is inadequate to support the expert’s conclusion or when the expert’s reasoning or methodology is incapable of producing a reliable result. The existence of data that might contradict the expert’s opinion goes to the weight the jury should give the opinion, not to its admissibility.

The court noted that Erb identified the difference between firm commitment and best efforts offerings by referring to standard reference materials in the securities industry. Erb then examined how the Canadian securities were offered for sale and compared those practices to the practices that he had observed in his own experience. He pointed to specific facts and documents that supported his opinion.

Revelation pointed to a number of arguable errors and flaws in Erb’s opinion. While Erb arguably failed to address clauses in the offering documents that might undermine his opinion, the court decided that the failure goes to the weight that his opinion should be given, not to its admissibility. And while Erb’s report may have cited an inapplicable regulation and may have failed to analyze certain disclosure rules, those flaws in his analysis were not so substantial that they completely undermined the basis for his opinion. Other experts (including Revelation’s) might differ with Erb’s opinion and might rely on other evidence as the basis for their differing opinions, but the fact that an expert opinion might be challenged by another expert does not render it inadmissible.

The court noted that the concept of reliability is “fluid,” which might be a nice way of saying that some courts will find an expert’s opinion to be reliable and therefore admissible while other courts will exclude the same opinion as unreliable. The line between a flawed opinion that is admissible and a flawed opinion that the jury should not hear is not easily drawn.

In this case, again applying a liberal view of admissibility, the court decided that Erb had sufficient grounds for his opinion to remove it from the realm of conjecture, and that he did not deliberately twist facts or manipulate data. That was enough to persuade the court that the jury should make the final conclusion as to its reliability.

Minnesota Considers Switch to Daubert Standard

Minnesota Considers Switch to Daubert Standard

The movement to require judges to follow the Daubert standard when they decide whether to admit expert testimony in a trial has met with success in a majority of states. The next state to make the change may be Minnesota. An advisory committee is considering whether the Minnesota Supreme Court should replace the state’s version of the Frye standard with the Daubert test. Whether the proposal will gain traction is unclear.

The Politics of Daubert

The push for the Daubert standard is often political. Insurance companies and businesses that manufacture or sell products usually believe that the Daubert standard favors defendants in civil suits. For that reason, they lobby state legislatures to adopt Daubert, a standard that is widely seen as giving judges greater authority to evaluate and reject unreliable expert testimony.

On the other hand, plaintiffs’ lawyers usually oppose the adoption of Daubert on the ground that it favors the interests of businesses over those of victims. Missouri’s governor recently vetoed the state’s legislative adoption of Daubert because (in his view) the standard hurts injury victims by increasing the cost of litigation.

In some states, the legislature’s decision to enact a Daubert rule does not assure that courts will embrace the rule. For example, the Florida legislature enacted a Daubert standard, but the Florida Supreme Court may decide that the authority to change the state’s rules of evidence is vested in the state judiciary, not the legislature. The court will soon decide whether to accept or reject the legislature’s Daubert rule.

Unlike Missouri and Florida, the impetus to change the rule in Minnesota is coming from a rules committee, not from state lawmakers. Minnesota’s rules of evidence are generally fashioned by the state’s supreme court. The court has noted that is has “primary responsibility under the separation of powers doctrine” to create rules of evidence, while recognizing an obligation to follow “reasonable” rules of evidence enacted by the state legislature.

To Change or Not to Change?

Until 1980, Minnesota relied on the Frye test of admissibility. The court admitted expert testimony if it was based on a scientific technique that was generally accepted in the relevant scientific community. Minnesota modified that test in 1980 by adding the requirement that expert testimony, to be admissible, must have a scientifically reliable foundation. Minnesota’s modified test has come to be known as the Frye-Mack standard.

The Minnesota Supreme Court’s Advisory Committee on the Rules of Evidence is studying a proposal to replace the Frye-Mack standard with the Daubert standard. The committee’s chair commented that the committee has “a general sense that there is dissatisfaction with Frye-Mack among Minnesota judges and lawyers.” At the same time, the chair made clear that he was speaking for himself, not for the committee.

Dissatisfaction with Frye-Mack is probably strongest among lawyers who represent the business community, just as dissatisfaction with Daubert tends to be strongest among lawyers who represent plaintiffs. In a large majority of cases, the standard makes no difference, since most expert testimony is likely to be admitted under either standard. In cases where expert evidence is more controversial, however, the more restrictive Daubert standard usually favors defendants over plaintiffs, since plaintiffs must often rely on expert testimony to meet their burden of proof.

Given that dynamic, it isn’t surprising to read in Minnesota Lawyer that “most in the plaintiffs’ bar wants the Minnesota courts to stick with Frye-Mack, while the defense bar would welcome a switch to Daubert.” Whether judges are also divided is unknown, but retired Minnesota Supreme Court Justice Paul Anderson told Minnesota Lawyer that Frye-Mack is a workable standard that is supported by a consistent and well-established body of precedent. Judges may support the Frye-Mack standard simply because they are familiar with it.

On the other hand, Justice Anderson observed, the Daubert standard has been the subject of varied interpretations in state and federal courts. Some courts emphasize that Daubert liberalized the admissibility of expert testimony, while Daubert’s detractors insist that the standard encourages judges to usurp the role of jurors in deciding whether expert opinions have merit. Justice Anderson asks “Why should we force our attorneys to read the entrails of multiple, conflicting opinions from across the country to try to figure out a new standard?”

What Will Minnesota Do?

Whether the advisory committee will recommend a change is far from a foregone conclusion. The committee expects to solicit public comment in the coming months. As the issue makes its way onto the radar of Minnesota’s litigators, the committee will need to sift through a variety of conflicting opinions.

Regardless of the advisory committee’s recommendation, the Minnesota Supreme Court might not be inclined to change the current rule. The court unanimously rejected Daubert (and reaffirmed Frye-Mack) in a 2000 decision that questioned whether judges are any more capable than juries of resolving disagreements among experts about the reliability of an expert’s methodology. The court also observed that federal courts have failed to apply Daubert uniformly and that its adoption in Minnesota would upset a settled rule that produces consistent results. Even if the advisory committee recommends adopting Daubert, the court might decide that no changes have occurred since 2000 that would warrant a significant revision of Minnesota law.