14 Chapter 13: Expert Testimony
Overview
In this chapter we will address civil procedure: how to qualify experts and what they can and cannot testify to. We will learn about procedure through the application of case law and revisit the differences between statutory law and common law. We will apply the standard for whether expert testimony is admissible through analyzing the Daubert factors.
Learning Targets
After reading this chapter, students will be able to do the following:
- Understand how to qualify an expert.
- Apply the standard for when experts can testify to their opinion.
- Understand the general acceptance standard and why it’s important.
Key Terms
- Legal admissibility
- Voir dire
- General acceptance
- Daubert standard
Expert Testimony
In this chapter we move away from the discussion of criminal law and move into an area of pure court procedure. Instead of learning how to play the game, we will learn part of the rules of the game: how to admit experts and what experts can testify to. This chapter is particularly relevant for any student destined to testify in the courtroom as an expert. We will learn how experts can testify and when they can.
There are two steps to expert testimony. The first step is whether the expert can be admitted and allowed to give an opinion in the first place. The second step is that testimony has to meet a legal standard of admissibility. If an expert and their testimony satisfy those two steps, they can give their opinion to the jury.
The admission of opinion testimony is more strict than specific evidence because unless there were strict requirements it would impact the fairness of the jury. Juries are composed of “lay” people, or people uneducated about the issues specifically. Because of that, there is an obligation the court to determine whether any scientific opinion first meets a legal threshold of admissibility.
The first step, or the expert qualification step, is typically referred to as voir dire. Essentially, voir dire is another hearing all in itself. During this hearing it is determined whether the individual has sufficient qualifications to even testify to the subject. It’s a separate question as to whether what they testify to is admissible.
The standard for expert admissibility is whether the witness is qualified by (a) knowledge, (b) skill, (c) experience, (d) training, or (e) or education. Of importance is the word or. Remember that conjunction means that a witness can be qualified as an expert by satisfying only one of those five factors.
But how can we determine whether the witness is so qualified? In Maryland, one need only possess such knowledge skill or experience as will probably aid jury or the judge in determining a fact at issue.1 What’s more is that a decision by a judge to qualify a witness will only be overturned if it manifestly erroneous.2
With that framework the standard for an expert qualification is particularly low. The language of “will probably” and “manifestly erroneous” is very broad. However, in Maryland there are additional rules that must be satisfied before an expert can be admitted. Federal rule 5-702 provides that in addition to having sufficient (a) knowledge, (b) skill, (c) experience, (d) training, or (e) education, the expert testimony must be (a) appropriate and (b) with a sufficient factual basis. The question of whether something is “appropriate” is also a question of relevance.
Before any evidence can be admitted it must first be relevant. The only evidence presented should be that which might prove or disprove a fact at issue. This is because for a fair and just trial the jury or the fact finder should not be presented with confusing or distracting information. The standard of relevance is whether the evidence has any probative value—the question being whether it tends to prove or disprove elements of the crime or the rule.
In addition to relevance, there is a higher evidentiary standard expert testimony must meet prior to being admitted. In common law, that standard was whether the methodology and conclusions were generally accepted. Those are two separate categories for which the proponent of the expert testimony must show the science is generally accepted. In this context methodology refers to the methods or procedures that an expert used to reach their conclusions. In common law those procedures or methods must be generally accepted prior to the expert being allowed to testify. The conclusion the expert reached must also be generally accepted before the expert can testify to that.
Importantly, the expert must provide some link between their conclusion and the evidence. If the expert fails to connect the methodology to the conclusion, the evidence could be kept out due to an “analytical gap.” Consider the following example: A plaintiff hires a medical expert to opine that exposure to lead paint in infants causes cognitive issues later in life. The medical expert testifies to numerous peer-reviewed journals that use widely accepted blood and DNA testing to establish a connection between lead and cognitive difficulties. The expert wants to opine that lead in this case caused the symptoms. Or this example: A plaintiff hires a medical expert to opine that he reviewed the tests of the paint chips in the home and the blood tests of the victim and that due to the levels of lead he was likely exposed in the home. Further, lead exposure is generally accepted to cause cognitive difficulties, and the same symptoms have appeared in the victim.
The first example is a classic example of an analytical gap. What the expert did not do was connect the evidence to the conclusion. Merely concluding without providing the why does not make any legal conclusion at all. Even though it’s generally accepted lead paint causes cognitive issues, we need to prove lead paint caused cognitive issues in this case.
For that reason the second example illustrates admissible testimony. The expert is specifically connecting the cognitive difficulties to facts that happened in this case.
In the first example the expert may still be allowed to testify, but the proponent of their testimony must still provide proof of a connection between the scientific theory and the harm; this scientific testimony wouldn’t be conclusory. However, in the second example the expert has provided the proof needed to establish the legal liability.
General acceptance should really be thought of as a lack of dispute, meaning that a theory or conclusion is only “generally accepted” by legal standards if there is no dispute in the scientific community. If there is any dispute at all between qualified experts, then with common law the evidence could not be admitted.
The primary consideration for this general acceptance theory was that juries or courts could be easily confused by the presentation of conflicting scientific evidence. However, there were issues with this model. Science is not static. Science constantly evolves and develops and on the cusp of this development are scientific models or conclusions that have not yet reached general acceptance.
Under the common law model these novel theories would be kept out of evidence. With changes in societal expectations common law also changed. Courts and legislatures changed the standard for expert qualification in the 1980s in part due to an increased faith in regular individuals to understand science and scientific evidence.
Case: Daubert
Today, the standard for whether an expert can testify is much more liberal. The following case will illustrate that new standard and why it changed.
Petitioners Jason Daubert and Eric Schuller are minor children born with serious birth defects. They and their parents sued respondent in California state court, alleging that the birth defects had been caused by the mothers’ ingestion of Bendectin, a prescription antinausea drug marketed by respondent. Respondent removed the suits to federal court on diversity grounds. After extensive discovery, respondent moved for summary judgment, contending that Bendectin does not cause birth defects in humans and that petitioners would be unable to come forward with any admissible evidence that it does. In support of its motion, respondent submitted an affidavit of Steven H. Lamm, physician and epidemiologist, who is a well-credentialed expert on the risks from exposure to various chemical substances. Doctor Lamm stated that he had reviewed all the literature on Bendectin and human birth defects—more than 30 published studies over 130,000 patients. No study had found Bendectin to be a human teratogen (i.e., a substance capable of causing malformations in fetuses). On the basis of this review, Doctor Lamm concluded that maternal use of Bendectin during the first trimester of pregnancy has not been shown to be a risk factor for human birth defects.
Petitioners did not (and do not) contest this characterization of the published record regarding Bendectin. Instead, they responded to respondent’s motion with the testimony of eight experts of their own, each of whom also possessed impressive credentials. These experts had concluded that Bendectin can cause birth defects. Their conclusions were based upon “in vitro” (test tube) and “in vivo” (live) animal studies that found a link between Bendectin and malformations; pharmacological studies of the chemical structure of Bendectin that purported to show similarities between the structure of the drug and that of other substances known to cause birth defects; and the “reanalysis” of previously published epidemiological (human statistical) studies. The District Court granted respondent’s motion for summary judgment. The court stated that scientific evidence is admissible only if the principle upon which it is based is “sufficiently established to have general acceptance in the field to which it belongs.’
The court concluded that petitioners’ evidence did not meet this standard. Given the vast body of epidemiological data concerning Bendectin, the court held, expert opinion which is not based on epidemiological evidence is not admissible to establish causation. Thus, the animal-cell studies, live animal studies, and chemical-structure analyses on which petitioners had relied could not raise by themselves a reasonably disputable jury issue regarding causation. Petitioners’ epidemiological analyses, based as they were on recalculations of data in previously published studies that had found no causal link between the drug and birth defects, were ruled to be inadmissible because they had not been published or subjected to peer review.
Citing Frye v. United States, the court stated that expert opinion based on a scientific technique is inadmissible unless the technique is “generally accepted” as reliable in the relevant scientific community. The court declared that expert opinion based on a methodology that diverges “significantly from the procedures accepted by recognized authorities in the field … cannot be shown to be ‘generally accepted as a reliable technique.’ The court emphasized that other Courts of Appeals considering the risks of Bendectin had refused to admit reanalyses of epidemiological studies that had been neither published nor subjected to peer review.
The court concluded that petitioners’ evidence provided an insufficient foundation to allow admission of expert testimony that Bendectin caused their injuries and, accordingly, that petitioners could not satisfy their burden of proving causation at trial.
In the 70 years since its formulation in the Frye case, the “general acceptance” test has been the dominant standard for determining the admissibility of novel scientific evidence at trial. Although under increasing attack of late, the rule continues to be followed by a majority of courts, including the Ninth Circuit. The Frye test has its origin in a short and citation-free 1923 decision concerning the admissibility of evidence derived from a systolic blood pressure deception test, a crude precursor to the polygraph machine. In what has become a famous (perhaps infamous) passage, the then Court of Appeals for the District of Columbia described the device and its operation and declared: “Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”
Because the deception test had “not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made,” evidence of its results was ruled inadmissible. The merits of the Frye test have been much debated, and scholarship on its proper scope and application is legion. Petitioners’ primary attack, however, is not on the content but on the continuing authority of the rule. They contend that the Frye test was superseded by the adoption of the Federal Rules of Evidence. We agree.
We interpret the legislatively enacted Federal Rules of Evidence as we would any statute. Rule 402 provides the baseline: “All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.” “Relevant evidence” is defined as that which has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The Rule’s basic standard of relevance thus is a liberal one. Frye, of course, predated the Rules by half a century.
Here there is a specific Rule that speaks to the contested issue. Rule 702, governing expert testimony, provides: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Nothing in the text of this Rule establishes “general acceptance” as an absolute prerequisite to admissibility. Nor does respondent present any clear indication that Rule 702 or the Rules as a whole were intended to incorporate a “general acceptance” standard. The drafting history makes no mention of Frye, and a rigid “general acceptance” requirement would be at odds with the “liberal thrust” of the Federal Rules and their “general approach of relaxing the traditional barriers to ‘opinion’ testimony.”
That the Frye test was displaced by the Rules of Evidence does not mean, however, that the Rules themselves place no limits on the admissibility of purportedly scientific evidence. Nor is the trial judge disabled from screening such evidence. To the contrary, under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.
The primary locus of this obligation is Rule 702, which clearly contemplates some degree of regulation of the subjects and theories about which an expert may testify. “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue” an expert “may testify thereto” [emphasis added]. The subject of an expert’s testimony must be “scientific . . . knowledge.” The adjective “ scientific” implies a grounding in the methods and procedures of science. Similarly, the word “knowledge” connotes more than subjective belief or unsupported speculation. The term “applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds.”
Of course, it would be unreasonable to conclude that the subject of scientific testimony must be “known” to a certainty; arguably, there are no certainties in science. But, in order to qualify as “scientific knowledge,” an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation—i.e., “good grounds,” based on what is known. In short, the requirement that an expert’s testimony pertain to “scientific knowledge” establishes a standard of evidentiary reliability.
Rule 702 further requires that the evidence or testimony “assist the trier of fact to understand the evidence or to determine a fact in issue.” This condition goes primarily to relevance. “Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful.” The consideration has been aptly described by Judge Becker as one of “fit.” “Fit” is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes.
The study of the phases of the moon, for example, may provide valid scientific “knowledge” about whether a certain night was dark, and if darkness is a fact in issue, the knowledge will assist the trier of fact. However (absent creditable grounds supporting such a link), evidence that the moon was full on a certain night will not assist the trier of fact in determining whether an individual was unusually likely to have behaved irrationally on that night. Rule 702’s “helpfulness” standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.
Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. We are confident that federal judges possess the capacity to undertake this review. Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test. But some general observations are appropriate.
Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested. “Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry.”
Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability, and in some instances well-grounded but innovative theories will not have been published. Some propositions, moreover, are too particular, too new, or of too limited interest to be published. But submission to the scrutiny of the scientific community is a component of “good science,” in part because it increases the likelihood that substantive flaws in methodology will be detected.
The fact of publication (or lack thereof) in a peer reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised. Additionally, in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error, and the existence and maintenance of standards controlling the technique’s operation. Finally, “general acceptance” can yet have a bearing on the inquiry. A “reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community.” United States v. Downing, 753 F.2d, at 1238.
Widespread acceptance can be an important factor in ruling particular evidence admissible, and “a known technique which has been able to attract only minimal support within the community,” may properly be viewed with skepticism. The inquiry envisioned by Rule 702 is, we emphasize, a flexible one. Its overarching subject is the scientific validity and thus the evidentiary relevance and reliability—of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate. Throughout, a judge assessing a proffer of expert scientific testimony under Rule 702 should also be mindful of other applicable rules. Rule 703 provides that expert opinions based on otherwise inadmissible hearsay are to be admitted only if the facts or data are “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.”
Rule 706 allows the court at its discretion to procure the assistance of an expert of its own choosing. Finally, Rule 403 permits the exclusion of relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury….” Judge Weinstein has explained: “Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 of the present rules exercises more control over experts than over lay witnesses.”
We conclude by briefly addressing what appear to be two underlying concerns of the parties and amici in this case. Respondent expresses apprehension that abandonment of “general acceptance” as the exclusive requirement for admission will result in a “free-for-all” in which befuddled juries are confounded by absurd and irrational pseudoscientific assertions. In this regard respondent seems to us to be overly pessimistic about the capabilities of the jury and of the adversary system generally. Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.
It is true that open debate is an essential part of both legal and scientific analyses. Yet there are important differences between the quest for truth in the courtroom and the quest for truth in the laboratory. Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly. The scientific project is advanced by broad and wide-ranging consideration of a multitude of hypotheses, for those that are incorrect will eventually be shown to be so, and that in itself is an advance. Conjectures that are probably wrong are of little use, however, in the project of reaching a quick, final, and binding legal judgment—often of great consequence—about a particular set of events in the past. We recognize that, in practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance that is struck by Rules of Evidence designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes.
To summarize: “General acceptance” is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence— especially Rule 702—do assign to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands. The inquiries of the District Court and the Court of Appeals focused almost exclusively on “general acceptance,” as gauged by publication and the decisions of other courts. Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.
U.S. Court of Appeals for the Ninth Circuit, “Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,” 1993.
Daubert is perhaps the most important case I can teach those individuals destined for the courtroom as expert witnesses. Daubert outlines specific criteria that experts must meet prior to their testimony being admitted. No longer is there a stringent “general acceptance” standard; there are many more elements that must be considered:
- whether a theory or technique can be (and has been) tested;
- whether a theory or technique has been subjected to peer review and publication;
- whether a particular scientific technique has a known or potential rate of error;
- the existence and maintenance of standards and controls; and
- whether a theory or technique is generally accepted.
- whether experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying;
- whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion;
- whether the expert has adequately accounted for obvious alternative explanations;
- whether the expert is being as careful as [they] would be in [their] regular professional work outside [their] paid litigation consulting; and
- whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give
Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993)
These factors are not exhaustive, nor does the judge need to consider all of them. It is the responsibility of the judge to be the gatekeeper of whether evidence should be presented to the jury; in that role they can consider one, all, or any other factor the court thinks appropriate. Therefore, these elements are more guidelines than a strict rule. As long as any other reasonable judge would have agreed to admit the evidence, that decision would not be overturned. Judges can assign whatever weight or importance to each factor that the facts support.
Daubert is concerned with scientific evidence, but it also applies to any other expert evidence that is sought to be presented. The law makes a subtle distinction between “technical” and “hard” science. Technical science is that which is learned and applied in the field and may not necessarily be able to replicated in a scientific study. Examples include function of mechanical elements in a larger whole (like a part in a car) or a theory or practice of a nonscientific field like construction. These are not laboratory sciences and often are not subjected to rigorous peer review and testing. An electrician seeking to testify as to the proper way to wire a home so as to avoid an electrical fire might not have peer-reviewed studies or tests with rates of error to point to. However, the rules of Daubert still apply. For any expert evidence, regardless of whether that evidence is technical, scientific, or other, it must first go through a Daubert analysis.
In sum, there are two steps to expert testimony: (a) being qualified and (b) that the testimony is admissible. For the testimony to be admissible the methodology and the conclusions must satisfy Daubert. The expert must also connect the facts of the case to the scientific conclusion to avoid an analytical gap. If the expert satisfies all these steps, they can provide a conclusory opinion to the jury—meaning that they can conclude that in their scientific opinion the facts are true or not. An expert’s opinion is particularly persuasive, and a jury’s verdict may be overturned if they disagree with the expert. If an expert opines to a conclusion at issue, and the jury disagrees, the jury’s verdict will be overturned unless it can be shown that it was reasonable to disregard the expert’s opinion. In that way, if an expert satisfies all the steps to testify appropriately, their opinion will likely be dispositive on the conclusion of the case.
Key Chapter Takeaways
- Before an expert can testify they must be qualified by knowledge, skill, experience, or training.
- Only evidence that is relevant is admissible.
- General acceptance is just one of many factors the court should consider in whether to admit expert opinion evidence.
- The Daubert factors apply to all expert evidence, including technical and scientific.
References
Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993)
Donati v. State, 215 Md. App. 686, 742 (2014)
Giant Food, Inc. v. Booker, 152 Md.App. 166 (2003)