Federal court practitioners and litigants must be mindful of the need to retain qualified and effective expert witnesses whose opinions satisfy the criteria for admissibility under the Federal Rules of Evidence, as initially established by the United States Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Fed. R. Evid. 702 governs expert testimony. At the time of the Daubert decision, the Rule read as follows:
“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or 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.”
Daubert, 509 U.S. at 588.
In Daubert, a products liability case, the Supreme Court concluded that Fed. R. Evid. 702 “clearly contemplates some degree of regulation of the subjects about which an expert may testify.” Id. at 589. Thus, the Court established a “gatekeeping role for the judge.” Id. at 597. The Court wrote:
Faced with a proffer of expert scientific testimony, . . . the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify as 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 properly can be applied to the facts in issue. We are confident that federal judges possess the capacity to undertake this review.
Id. at 592-593 and n. 11. Note that the gatekeeper role is primarily focused upon evidence in a jury trial; “where the Court itself acts as the ultimate trier of fact at a bench trial, the Court’s role as a gatekeeper pursuant to Daubert is arguably less essential.” Magistrini v. One Hour Martinizing Dry Cleaning, 180 F.Supp.2d 584, 596 n. 10 (D.N.J. 2002), aff’d, No. 02-2331, 2003 WL 21467223 (3d Cir. June 25, 2003).
Pursuant to the version of Fed. R. Evid. 104(a) in effect at the time of the Daubert decision, a district court is required to conduct a preliminary hearing, also known as an in limine hearing, to determine “questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence.” Daubert, 509 U.S. at 592 (quoting Fed. R. Evid. 104(a)). This same requirement of a preliminary Daubert hearing continues in present federal court practice when a party challenges the admissibility of expert opinion.
The Supreme Court in Daubert also determined that trial judges have more control over experts than over lay witnesses in applying Fed. R. Evid. 403 to exclude testimony “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . .” Id. at 595, (quoting Weinstein, Rule 702 of the Federal Rules of Evidence is Sound; It Should Not Be Amended, 138 F.R.D. 631 (1991)).
The Daubert Factors for Admissibility of Expert Opinion
Against that backdrop the Supreme Court established the following factors for admissibility of expert opinion that became the framework of the Daubert test:
- whether the theory or technique that the expert contends constitutes scientific knowledge has been tested;
- whether the theory or technique has been subject to peer review and publication (but publication is not dispositive);
- the known or potential error rate and the existence or maintenance of standards controlling the technique’s operation; and
- “‘general acceptance’ can yet have a bearing on the inquiry,” in the sense that widespread acceptance can be an indicator of reliability, and “a known technique which has been able to attract only minimal support within the community … may properly be viewed with skepticism.”
Daubert, 509 U.S. at 593-594.
Expansion of Daubert Test to Other Areas of Civil Litigation
Initially, “Daubert was limited to the scientific context because that [wa]s the nature of the expertise offered [t]here.” U.S. v. Mitchell, 365 F.2d 215, 234 (3d Cir. 2004). But in the two decades since deciding Daubert, the Supreme Court has expanded the federal courts’ gatekeeper function to a broad spectrum of civil litigation. For instance, in General Electric Co. v. Joiner, 522 U.S. 136 (1997), decided a few years after Daubert, the Supreme Court underscored the importance of the trial court’s gatekeeper role, holding that the district court’s determination is subject to an “abuse of discretion” standard on appeal, and approving the exclusion of expert evidence when the data and the opinion are insufficiently connected. Id. at 146-147. Next, in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), where the contested expert was a tire engineer, the Supreme Court held that the Daubert standard extends to all fields in which experts have technical or otherwise specialized knowledge, and that the test may vary with the scientific, technical or other area of expertise at issue.
The Third Circuit’s Expanded Daubert Factors
For practitioners and litigants prosecuting or defending claims in federal district courts sitting within the Third Circuit (Delaware, New Jersey and Pennsylvania), in several precedential decisions the Third Circuit has described the Daubert test as a three-part test consisting of “qualification, reliability and fit.” Calhoun v. Yamaha Motor Corp., 350 F.3d 316, 321 (3d Cir. 2003); Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003). The Third Circuit has held that “a broad range of knowledge, skills, and training qualifies an expert” as possessing the requisite “specialized expertise” required under Daubert. Calhoun, 350 F.3d at 321 (internal citation omitted).
In U.S. v. Mitchell, supra, the Third Circuit commented on its expanded list of Daubert factors addressing reliability of expert opinion:
- whether a method consists of a testable hypothesis;
- whether the method has been subject to peer review;
- the known or potential rate of error;
- the existence and maintenance of standards controlling the technique’s operation;
- whether the method is generally accepted;
- the relationship of the technique to methods which have been established to be reliable;
- the qualifications of the expert witness testifying based on the methodology; and
- the non-judicial uses to which the method has been put.
365 F.2d. at 235 (quoting In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717, 742 n. 8 (3d Cir. 1994), reh’g denied, 1994 U.S. App. LEXIS 23722 (1994), cert. denied, 513 U.S. 1990 (1995).
Under Third Circuit precedent, the admissibility of expert opinion based on the “fit” component depends in part on “the proffered connection between the scientific research or test result to be presented and particular disputed factual issues in the case.” Paoli, 35 F.3d. at 743 (quoting U.S. v. Downing 753 F.2d 1224, 1237 (3d Cir. 1985)). It requires that the testimony “must in fact assist the jury, by providing it with relevant information, necessary for a reasoned decision of the case.” Yarchak v. Trek Bicycle Corp., 208 F.Supp.2d 470, 496 (D.NJ. 2002).
Application of the Daubert test to determine the admissibility of expert opinion is done on a case-by-case basis. Federal court trial attorneys should vet the qualifications of a potential expert witness to ensure that he or she possesses the requisite “specialized expertise” necessary to meet the admissibility standards under Fed. R. Evid. 702 as established by Daubert and its progeny in the Third Circuit.