Using Expert Witnesses in Employment Litigation

Julie E. Blend* I. Introduction Over the last decade, employment litigation has become one of the hottest areas of legal practice. With the implementation of new and expanded statutory protections of the labor force, employee suits are on the rise. Whether you find your client in a traditional on-the-job injury case or battling a sexual harassment suit, the resolution of employment litigation frequently requires the kind of or other specialized information only experts can provide. Because expert testimony has become crucial in many types of litigation, employment of expert witnesses is often essential.1 This Article addresses the standard for the admissibility of expert testimony and how to handle experts most effectively in the context of employment litigation. II. The Admissibility of Expert Testimony A. The Daubert and Robinson Opinions Because both the United States Supreme Court and the Texas Supreme Court have rendered key opinions on the issue in recent years,2 the admissibility of expert testimony has become a hot topic of discussion. Before these key opinions, evidentiary requirements unfortunately presented few obstacles even to non-meritorious expert testimony. The loosening of evidentiary rules for expert testimony gave rise to a cottage industry of professional experts who testify in support of positions with little or no foundation.3 Court rulings based on relevance theory exacerbated the problem. Under this theory, courts admitted any expert testimony if the expert had credentials and his opinions were relevant to the claims at issue.4 The United States Supreme Court first addressed this problem in Daubert and rejected the relevance theory in favor of strict scrutiny by trial courts, who act as gatekeepers to admit only expert testimony founded on science.5 The Texas Supreme Court followed suit and adopted the Daubert analysis in Robinson.6 In Daubert, the United States Supreme Court refined the test for admissibility of expert testimony in federal courts to meet the requirements of Rule 702 of the Federal Rules of Evidence.7 Before Daubert, the long-standing test for admissibility of evidence was the general test of Frye v. United States.8 Under Frye, expert testimony based on technique was admissible if the technique was generally as in the relevant community.9 The Supreme Court found in Daubert that the Frye test was superseded by the adoption of the Federal Rules of Evidence-in particular, Rule 702. The Supreme Court found a mandate for active review in the language of Rule 702, which contemplates that expert testimony consist of scientific . . . that will the trier of fact.10 According to the Court, the reference to scientific in Rule 702 requires that an expert's claims be validated by the accepted standards of the relevant field, and the will assist standard requires that the evidence be based on recognized and defensible methods.11 For evidence, Rule 702 requires that an expert's opinion be reliable and scientifically valid.12 The validity standard requires trial courts to review whether expert testimony is founded on good science and proper principles. 13 The Court patterned the test under Rule 702 according to the method used by scientists: testimony should be based on reasoning that has been subject to analysis or peer review in the relevant community, has been tested, and has gained acceptance in that community.14 Following the United States Supreme Court's reasoning in Daubert, the Texas Supreme Court in Robinson held that in order to the trier of fact, knowledge must be both relevant and reliable.15 Expert testimony is relevant only if it is `sufficiently tied to the facts of the case that it aid the jury in resolving a factual dispute. …