Kumho Tire: The Battle of the Experts Continues

I. Introduction A witness must tell the truth, the whole truth, and nothing but the truth-unless the witness is an expert. Fact witnesses can generally testify only about what they saw, what they heard, what they did, and what they experienced. As a result, fact witnesses very rarely get to state their opinions during a trial, and most attorneys strive to avoid letting a fact witness voice an unsolicited opinion. The reason is obvious: opinion testimony is a powerful tool in shaping the views of the jury. But under the Federal Rules of Evidence, experts are permitted to offer testimony beyond their firsthand of the events at issue.1 Specifically, the rules grant expert witnesses the prerogative to relate their opinions to the jury about the facts and evidence in the trial.2 Wary of the increasing role of paid experts in litigation, the United States Supreme Court revisited the standards for the admissibility of expert testimony in 1993. In Daubert v. Merrell Dow Pharmaceuticals, Inc.,3 the Supreme Court defined a new era in determining the admissibility of expert testimony. Interpreting Rule 702 of the Federal Rules of Evidence, the Court in Daubert held that expert testimony is admissible only if it is both relevant and reliable.4 The opinion also affirmatively and formally assigns trial judges the responsibility of acting as gatekeepers.5 The Court opined that the Federal Rules of Evidence 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.6 The Daubert decision states the new rule, but leaves to the trial courts the task of applying it. Chief Justice Rehnquist presciently recognized some of the questions that the lower courts would encounter following Daubert: Questions arise simply from reading this part of the Court's opinion, and countless more questions will surely arise when hundreds of district judges try to apply its teaching to particular offers of expert testimony. Does all this dicta apply to an expert seeking to testify on the basis of or other specialized knowledge - the other types of expert to which Rule 702 applies - or are the observations limited only to knowledge? What is the difference between scientific and technical . . . ?7 These very questions and the ensuing disharmony among the Federal Circuits over Daubert's application have led the Supreme Court to revisit and clarify its opinion. Most recently, the Court decided Kumho Tire Co. v. Carmichael,8 once again clarifying the intent of Daubert without abandoning its holding or rule. II. Formulation of the Daubert Test Daubert did not simply arise from a void at the whim and fancy of the Supreme Court. Rather, it evolved from the policy concerns surrounding the increasing use of expert testimony in trials, the legislative adoption of Federal Rule of Evidence 702, and 60 years of the application of the Frye test.9 The Frye test requires that the basis for scientific expert testimony be sufficiently established to have gained general acceptance in the particular field in which it belongs.10 Even after the enactment of the Federal Rules of Evidence, many courts continued using common law standards such as the Frye test to guide them in the application of the rules rather than literally interpreting the rules themselves.11 In Daubert, the Supreme Court directly faced the question of whether the legislative enactment of Federal Rule 702 had supplanted the Frye test for determining the admissibility of expert testimony.12 The trial court in Daubert granted the defendants' motion for summary judgment after ruling that the opinions of the plaintiffs' expert concerning the causal link between the use of Bendectin and the plaintiffs' birth defects were inadmissible under Frye.13 The 9th Circuit Court of Appeals affirmed the trial court's decision. …