Preparing for Admissibility of Expert Testimony

Engineers and attorneys often form a team of expert witness and advocate, respectively, in the preparation for either the prosecution or defense of a given case. For decades prior to the 1993 decision of the United States Supreme Court in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), attorneys and their experts very rarely concerned themselves with the admissibility of the expert's proposed testimony if his resumé showed sufficient education, training or experience to qualify him as an "expert" in the field. Once qualified, the substance of the opinion was not routinely challenged or reviewed by the court. As a result, expert testimony has become common place in virtually every type of case, a trend often negatively commented on as often obscuring the actual facts and turning cases into a battle of the experts. While this trend will most likely not reverse itself by reason of the ever increasing complexity of society, there is a growing trend in law to be more skeptical of the quality of the opinion after the exert has been qualified. This trend is in large part the result of the Daubert case, where the Supreme Court rewrote the standards of admissibility of expert testimony in federal court and, in so doing, threw out years of accepted practice and procedure with respect to the use of expert testimony and the preparation of experts for use at trial. While the scope of the Daubert case focused on a case involving "junk science," its holding was later expanded to reach all experts, including engineers, in the 1999 decision of the Supreme Court in Kumho Tire Company, Ltd. v. Carmichael,—U.S.—, 119 S.Ct. 1167.