Short History of the Gatekeeper's Role. Introduction

The Federal Rules of Evidence, Rules 702, 703, and 704 (and the similar state rules) set forth the rules for admission of expert testimony. Rule 702 is the core rule.

Rule 702. Testimony by Experts.  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.

Until 1993, most courts held that rule 702 dictated that after the trial judge determined that (1) a "qualified expert" was in court, and (2) "scientific, technical, or other specialized knowledge" would assist the jury, then (a) the expert’s opinion was admissible and (b) the reliability of the opinion and the sufficiency of its factual basis were matters solely for consideration by the jury.

In 1991, The Federal Evidence Rules Advisory Committee proposed to the Supreme Court several changes in the Federal Rules of Evidence. Most of them were adopted by the Supreme Court. One that attracted much attention and was not adopted was a proposed change in Rule 702. That proposed change would have done much that was subsequently addressed in the 1993 case of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579 (1993). In Daubert the Court made it clear that the trial court had to act as "gatekeeper," to determine the reliability of the expert’s proffered opinion. Since then, the federal gatekeeper function has grown.

Most states have adopted the text of the federal rule 702 in their own rules. Most states have given indications that the federal interpretations of the rules are persuasive in interpreting their own similar rules.

Because of both the desirability of compatibility, and also the persuasive nature of the federal decisions, various states have now adopted gatekeeper functions for their trial courts. The trial judge now must go beyond the determination whether the jury could use specialized knowledge and the determination whether witness is an expert. The extent to which the states has gone has varied. Texas is an example of a state which has gone far (in this author’s view, too far) in throwing up obstacles to the quick and inexpensive determination of admissibility. North Dakota, on the other hand, is an example of a state which has made little change to date in its practice. [See separate discussion on North Dakota.]

We now proceed to a history of the federal law after Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579 (1993).

Daubert held that Rule 702 of the Federal Rules of Evidence imposes a special obligation upon trial judges to ensure that scientific testimony is not only relevant, but reliable. The Court stated that the trial court must play a "gatekeeping" role, and thus the "gatekeeper" function sprang into being for the federal courts. The Court noted Id. at 596-97  factors that could be considered in determining the admissibility of scientific testimony. The Daubert case set forth the following factors:

1. Whether a theory or technique can be, or has been, tested;

2. Whether the theory or technique has been subjected to peer review and publication;

3. The known or potential rate of error with respect to the theory or technique;

4. The existence and maintenance of standards and controls; and 

5. Whether the theory or technique enjoys general acceptance within the relevant scientific community.

In Daubert, Justice Blackman's theory was that the focus of the trial judge's Federal Rule of Evidence Rule 702 determination must be solely on the expert's methodology; and not on his conclusion.

Daubert was a case involving a field of expertise thought of generally as "scientific" and an opinion that was sought to be introduced as "scientific" knowledge under Rule 702's wording of the type of knowledge that could be introduced to help a jury This is why the Daubert decision lists items that are most applicable to such "scientific" endeavors. Indeed the court specifically referred to the "scientific method."

"[I]n order to qualify as ‘scientific knowledge’ an inference or assertion must be derived by the scientific method.....

"[Scientific method] is based on generating hypotheses and testing them to see if they can be falsified....

"[The] experts must explain precisely how they went about reaching their conclusions and point to some objective source – a learned treatise, the policy statement of a professional association, a published article in a reputable scientific journal or the like – to show that they have followed the scientific method, as it is practiced by a recognized minority of scientists in their field."

The "scientific method" is a specific procedure. It is a four-step process of (1) Suggested Conclusion i.e., Hypothesis, (2) Testing of Hypothesis, (3) Analysis of the Testing, and (4) Conclusion. The scientific method is well suited to determining matters suitable for test tubes or telescopes. It is not well suited to determining matters that are social in nature. E.g., a police officer might say that based on experience the word "hit" in a conversation among members of the Mafia means "kill," but it is hardly a matter on which a court should expect a scientific poll of proven Mafia members to establish the validly of the officer’s conclusion.

In General Electric Co. v. Joiner, 522 U.S. 136,146 (1997) Chief Justice Rehnquist made a substantial contribution to the Rule 702's gatekeeper role. He wrote that an expert's methodology is not easily separated from his conclusion and that the gap between the observed data and the expert's ultimate conclusion cannot be bridged simply by the say-so of the expert alone. There must be a logical connection between the data and the conclusion. Too wide of an analytical gap between the data and the conclusion will render the expert's testimony unreliable and thus inadmissible.

In Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999) the Court held that the Daubert gatekeeping obligation applies to all experts. "The trial judge's effort to assure that the specialized testimony is reliable and relevant can help the jury evaluate [the] foreign experience [of expert testimony], whether the testimony reflects scientific, technical, or other specialized knowledge." 119 S.Ct. at 1174.

As to the tests for non-scientific experts, in Kumho, Justice Breyer, speaking for himself and seven other Justices, specifically reaffirmed and quoted Chief Justice Rehnquist's language in Joiner. Daubert was not rejected or overruled. But in leaving out any reference to Justice Blackmun's statement in Daubert about focusing solely on the expert's methodology, Kumho strongly intimates that in all fields of expertise, the trial court should look at the logic involved in the expert’s move from data to conclusion.

The then proposed amendment to Rule 702 provides, as Justice Breyer pointed out in his opinion, that the reliability determination requires the trial court to scrutinize whether the principles and methods employed by an expert have been properly applied to the facts of the case. One way to determine whether a methodology has been properly applied to the facts of the case is: focus on the gap between the data and the conclusion and ask has that gap has been bridged by sound inductive or deductive reasoning. Kumho suggests that the then proposed amendment to Rule 702 can be treated as a clarification of, rather than a change from, the principles announced in Daubert. Id. at 1178. See also, Heller v. Shaw Industries, Inc., 167 F.3d at 153 n.5; Nilssen v. Motorola, Inc., 1998 Westlaw 513090, *11 (N.D. IL.) (opinion by Judge Shadur, a member of the Advisory Committee on Evidence Rules, noting that the proposed amendment to Rule 702 is intended to explicate rather than to change the law as exemplified by the principles announced in Daubert.)

The Kumho Court noted that reliability and relevance of expert testimony depend on whether an expert employs in the courtroom the "same level of intellectual rigor that characterizes the practice of an expert in the relevant field" of expertise.

The Court also held that the four factors specified in Daubert are not the exclusive tests. A trial judge determining the admissibility of expert testimony may consider one or more of them as well as other factors. The Kumho Court gave careful emphasis to the use of the word "may", and the Court emphasized the flexible nature of the Daubert inquiry, stating that the factors it listed in that decision were meant "to be helpful, not definite". Id. at 1175 [emphasis added].

The Kumho decision helps those courts which had wanted to apply a gatekeeper analysis to non-scientific opinion testimony but were frustrated because as Jenson v. Eveleth Taconite Co., 130 F3d 1287, 1297 9 (8^th Cir 1997) phrased it: the specific four factors of the Daubert decision did not really apply well to "‘soft sciences’ such as psychology, because there are social science in which research, theories and opinions cannot have the exactness of hard science methodologies.".

Kumho does have a discussion regarding the trial judge’s

"discretionary authority needed both to avoid unnecessary ‘reliability’ proceedings in ordinary cases where reliability of an expert’s methods is properly taken for granted, and to require more appropriate proceedings in the less usual or more complex cases where cause for questioning the expert’s reliability arises. Indeed [Rule 1] seek[s] to avoid ‘unjustifiable expense and delay’ as part of their search for ‘truth’ and the ‘just determination’ of proceedings. Kumho, at 1176 [emphasis added by this author.]

In my opinion,  of the trilogy of cases of  Daubert, Joiner, and Kumho Tire, Kumho is the most important in Daubert motion practice because of two central points in  Kumho.

- It clearly states that a Daubert determination of reliability must be made in all cases where expert evidence is offered, whether we call it scientific evidence or technical knowledge or skilled profession.

- It clearly states that a Daubert inquiry is to be a flexible one. All of the factors identified in Daubert that guarantee the reliability needed for admissibility of opinions based upon scientific knowledge, such as replicability, established error rates, peer review, and so on, do not necessarily apply to all forms of expert testimony with the same rigor. They apply with full force only to those disciplines to which such factors can be applied. Conventional wisdom holds that these factors cannot be applied, in the manner spelled out in Daubert, to legal negligence or many other forensic experts  where cases deal with problems that are unique and where the accuracy of a specific finding cannot be stated with a measurable statistical degree.

Unfortunately some attorneys play economic hardball and raise a Daubert objection as a matter of course in every case. Some trial courts capitulate, require expensive briefs and affidavits and hold protracted Daubert hearings simply because an objection is made to the expert’s opinion.

Kumho does allow a trial court to rule that:

 E.g., the attending doctor’s diagnosis could be so admitted because the reliability in a treating doctor’s opinion is properly taken for granted. (But caveat, because the admission can be challenged on appeal, it is well for the proponent in all cases to lay a minimal sufficient foundation, even if the opinion is admitted by the trial court on such discretional authority.)

Using the emphasis of Kumho on flexibility, a trial court could properly admit scientific testimony that did not follow scientific method exactly. For example, suppose the best expert in the world on the size and location of the waste plume from a deep well injection operation offers an opinion of where the waste plume is in the ground. Would it not be appropriate for him/her to testify that certain theories and calculations show the waste plume even though he/she has not tested the hypotheses by drilling several wells both in the locations that the hypotheses of the waste plume says the waste products will be, and also in the locations that the hypotheses says the plume will not be? The trial of cases should have some economic reality.

Most recently, Weisgram v. Marley, 528 U.S. 440 (2000), gives adverse Daubert rulings more finality.  In Weisgram, the United States Supreme Court upheld the authority of a court of appeals to direct the entry of judgment for a defendant as a matter of law for a defendant which had lost the verdict at trial, when plaintiff's expert testimony was excluded only on appeal, and the excluded testimony was the only link between defendant's heater and a fire which was the cause of the damage under litigation. The cause of action was dismissed and the plaintiff could not put on new evidence that the heater caused the fire. This is an important development, because until Weisgram, when appellate courts excluded expert testimony that was an indispensable element of the matter at bar, the typical action was to reverse and remand. The Supreme Court said that, since Daubert, "parties relying on expert evidence have had notice of the exacting standards of reliability such evidence must meet." And that it "is implausible to suggest, post-Daubert, that parties will initially present less than their best expert evidence in the expectation of a second chance should their first try fail."  So, if the expert testimony goes out, the case is not retried if the expert testimony was a necessary element as a matter of law.

2. The Federal Circuit Courts.

Of course, the Federal Courts follow the authority of the Supreme Court, but the reader may like some exposition of what the circuit courts have done.

Some Circuits seem to have felt it appropriate to dismiss the opinions of ordinary medical treating doctors because they have not verbalized studies and statistics. Fortunately the Fifth Circuit has been more sensible. In Moore v. Ashland Chemical, Inc., 126 F3d 679 (5^th Cir. 1997) it was recognized that:

"...The Daubert factors, which are hard scientific methods selected from the body of hard scientific knowledge and methodology, generally are not appropriate for use in assessing the relevance and reliability of clinical medical testimony. Instead the trial court should determine whether the doctor’s proposed testimony as a clinical physician is soundly grounded in the principles and methodology of his field of clinical medicine."

Before Daubert, the Eighth Circuit, like North Dakota, generally insisted that the trial judge should not weigh the expert’s opinion in determining admissibility. An illustrative case of reversal of the trial court is Hoomgren v. Massy. Ferguson, 394 F.Supp. 910 (DCND 1974), reversed at 516 F2d 856 (8th Cir. 1974). The District Court found an engineer not to he qualified to testify as expert in design of agricultural implements. The District Court judge was reversed by the 8th Circuit, which felt that it was not the amount of expertise, but rather whether expertise exists, that determines admissibility of the opinion, and anyone who has some expertise should be allowed to testify as an expert.

But now, the Eighth Circuit has adopted the Daubert gatekeeper functions. E.g., Peitzmeier v. Hennessy Industries, 97 F3rd 293 (8^th Cir 1996); Wright v. Willamette Industries, 91 F3rd 1105 (8^th Cir. 1996); Sorensen v. Shaklee Corp., 31 F3rd 638 (8^th Cir. 1994). 

In February, 1999, the U.S. Supreme Court affirmed an 8th Circuit decision reversing a North Dakota Federal trial court case on a point of expert witness law.  The point the U.S. Supreme Court made is one we for months had been warning attorneys and expert witnesses about.  But for the case click here to find a discussion in our "Tactics Tips".

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