Tag Archives: Frye 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.

Missouri Passes Daubert Bill, Governor May Veto

Missouri Passes Daubert Bill, Governor May Veto

States legislatures, bar associations, and courts are continuing to debate the appropriate standard for the admission of expert testimony. As an attempt to defeat the Florida legislature’s adoption of the Daubert standard heats up, the Missouri legislature has sent Governor Jay Nixon a bill that would replace the state’s current rule of expert testimony admissibility with a Daubert standard.

The Daubert standard

Having been adopted by the federal government and a majority of states, the Daubert standard is now familiar to lawyers and to expert witnesses. Judges applying Daubert generally see their role as that of a “gatekeeper.” Before allowing a jury to hear expert testimony, the judge must be satisfied that the expert’s testimony is both relevant and reliable.

Expert testimony is relevant under Daubert if it would help the jury decide the case and if:

  • the testimony is based on sufficient facts or data;
  • the testimony is the product of reliable principles and methods; and
  • the expert has reliably applied the principles and methods to the facts of the case.

To decide whether scientific principles and methods are reliable, Daubert requires the judge to consider whether the method that the expert used to form a scientific opinion:

  • can be and has been tested;
  • has been subjected to peer review and publication;
  • is not associated with an unacceptable error rate;
  • is controlled by standards; and
  • has attracted widespread acceptance within a relevant scientific community.

More ambiguous standards govern the evaluation of nonscientific expert testimony, which by its nature does depend upon the application of the scientific method.

The Missouri Bill

The bill that passed the Missouri House would adopt the Daubert standard in most trials. The current Missouri rule of expert evidence provides that an expert may testify in the form of an opinion if the opinion would help the jury (or the judge in a bench trial) “understand the evidence” or “determine a fact in issue,” provided the expert is “qualified as an expert by knowledge, skill, experience, training, or education.” To form an opinion, the expert may rely on any “reasonably reliable” facts that are “of a type reasonably relied upon by experts in the field.”

Like the Daubert standard, the current Missouri rule does not require experts to form opinions by using a methodology that has gained widespread acceptance. The Missouri rule therefore differs from the traditional Frye standard of admissibility. “Widespread acceptance” is a factor the court can consider under Daubert, but no single factor is controlling.

At the same time, the Missouri rule differs from Daubert, which does not require experts to rely on the kind of facts that would ordinarily be relied upon by other experts in the same field. In that sense, Missouri’s current rule might be more restrictive than the Daubert standard. It is therefore unclear whether the change proposed by the bill would benefit plaintiffs or defendants.

As a general rule, lawyers who represent businesses and insurance companies like Daubert because they believe it gives them an opportunity to prevent plaintiffs’ experts from testifying when their opinions are not based on customary or orthodox methodologies. Plaintiff’s lawyers and consumer advocates tend to view Daubert as improperly substituting the judge’s opinion for the jury’s in the assessment of a methodology’s reliability.

Daubert’s Unclear Impact

In reality, the distinction between the Daubert standard, the Frye standard, and the current Missouri standard is only important at the fringes, since most scientific experts based their opinions on uncontroversial methodologies, even when their opinions conflict. One study suggests that the difference between standards of expert opinion admissibility does not typically affect the outcome of a case. The Missouri Bar’s Expert Witness Legislation Working Group concluded that there is no objective proof that the Frye standard, the Daubert standard, or the current Missouri standard is more likely to increase the fairness of a trial, although the Daubert standard tends to impose greater burdens on the judicial system by making more work for judges.

The Missouri bill would apply the Daubert standard to civil cases other than those arising in probate court, juvenile court, or family court. If the true purpose of the bill is to increase the reliability of evidence, it seems odd that the Missouri legislature would think that juvenile and family cases should turn on less reliable expert evidence.

The bill’s fate is now in the hands of Governor Nixon. The bill was supported by business lobbyists but opposed by the state’s Circuit Judges Association and a bipartisan group of legislators. The Missouri Times reports that the governor is expected to veto the bill.