The Law of Experts:
THE PEOPLE, Plaintiff and Respondent, v. ROBERT EMMETT
KELLY, Defendant and Appellant
Daubert
v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
Daubert v. Merrell Dow
Pharmaceuticals (92-102), 509 U.S. 579 (1993).
Kumho
Tire Co. v. Carmichael, 526 U.S. 137 (1999)
KUMHO TIRE CO. v. CARMICHAEL
(97-1709) 131 F.3d 1433, reversed.
Experts and Confidentiality:
In California Psychiatric Experts Are Under the Same Privilege/Confidentiality Obligations
as are Treating Psychiatrists
California Appellate Decision Regarding Privilege/Confidentiality Duties of Non-Treating, Psychiatric Experts:
see PETTUS V. COLE, 57 Cal.Rptr.2d 46 (1996)
Court
of Appeal, First District, Division 2, California
from the Headnotes:
"Two
psychiatrists violated the Confidentiality of Medical Information
Act(Civ. Code, § 56 et seq.) when they disclosed the details of
their evaluations of an employee who sought stress-related
disability leave to his supervisors at work without his written
authorization. Civ. Code, § 56.10, subd. (c)(8)(B), limits
permissible disclosure to a description of any "functional
limitations" that may have entitled the employee to leave
work, and also explicitly prohibits disclosure of "medical
cause." These psychiatrists described in detail the
employee's hostility toward the company and a coworker, his
drinking habits, and other details about his personal life,
disclosures which went well beyond a description of
"functional limitations."
"(3) Employer and Employee § 7--Contracts of Employment--Medical Care-- Unauthorized Disclosure of Medical Information to Patient's Employer-- Employee's "Patient" Status.
An employee who was evaluated by two psychiatrists in connection with his request for stress-related disability leave was a "patient" within the meaning of the Confidentiality of Medical Information Act (Civ. Code, § 56 et seq.) and thus was protected by the act's provisions."
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| Daubert
v. Merrell Dow Pharmaceuticals (92-102), 509 U.S. 579
(1993). |
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| Syllabus |
Opinion [ Blackmun ] |
Other [ Rehnquist ] |
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NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337.
Syllabus
DOW PHARMACEUTICALS, INC.
Petitioners, two minor children and their parents, alleged in their suit against respondent that the children's serious birth defects had been caused by the mothers' prenatal ingestion of Bendectin, a prescription drug marketed by respondent. The District Court granted respondent summary judgment based on a well credentialed expert's affidavit concluding, upon reviewing the extensive published scientific literature on the subject, that maternal use of Bendectin has not been shown to be a risk factor for human birth defects. Although petitioners had responded with the testimony of eight other well credentialed experts, who based their conclusion that Bendectin can cause birth defects on animal studies, chemical structure analyses, and the unpublished "reanalysis" of previously published human statistical studies, the court determined that this evidence did not meet the applicable "general acceptance" standard for the admission of expert testimony. The Court of Appeals agreed and affirmed, citing Frye v. United States, 54 App. D. C. 46, 47, 293 F. 1013, 1014, for the rule that expert opinion based on a scientific technique is inadmissible unless the technique is "generally accepted" as reliable in the relevant scientific community.
Held: The Federal Rules of Evidence, not Frye, provide the standard for admitting expert scientific testimony in a federal trial. Pp. 4-17.
(a) Frye's "general acceptance" test was superseded by the Rules' adoption. The Rules occupy the field, United States v. Abel, 469 U.S. 45, 49, and, although the common law of evidence may serve as an aid to their application, id., at 51-52, respondent's assertion that they somehow assimilated Frye is unconvincing. Nothing in theRules as a whole or in the text and drafting history of Rule 702, which specifically governs expert testimony, gives any indication that "general acceptance" is a necessary precondition to the admissibility of scientific evidence. Moreover, such a rigid standard would be at odds with the Rules' liberal thrust and their general approach of relaxing the traditional barriers to "opinion" testimony. Pp. 4-8.
(b) The Rules--especially Rule 702--place appropriate limits on the admissibility of purportedly scientific evidence by assigning 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. The reliability standard is established by Rule 702's requirement that an expert's testimony pertain to "scientific . . . knowledge," since the adjective "scientific" implies a grounding in science's methods and procedures, while the word "knowledge" connotes a body of known facts or of ideas inferred from such facts or accepted as true on good grounds. The Rule's requirement that the testimony "assist the trier of fact to understand the evidence or to determine a fact in issue" goes primarily to relevance by demanding a valid scientific connection to the pertinent inquiry as a precondition to admissibility. Pp. 9-12.
(c) Faced with a proffer of expert scientific testimony under Rule 702, the trial judge, pursuant to Rule 104(a), must make a preliminary assessment of whether the testimony's underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue. Many considerations will bear on the inquiry, including whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate, and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community. The inquiry is a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate. Throughout, the judge should also be mindful of other applicable Rules. Pp. 12-15.
(d) Cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof, rather than wholesale exclusion under an uncompromising "general acceptance" standard, is the appropriate means by which evidence based on valid principles may be challenged. That even limited screening by the trial judge, on occasion, will prevent the jury from hearing of authentic scientific breakthroughs is simply a consequence of the fact that the Rules are not designed to seek cosmic understanding but, rather, to resolve legal disputes. Pp. 15-17.
951 F. 2d 1128, vacated and remanded.
Blackmun, J., delivered the opinion for a unanimous Court with respect to Parts I and II-A, and the opinion of the Court with respect to Parts II-B, II-C, III, and IV, in which White, O'Connor, Scalia, Kennedy, Souter, and Thomas, JJ., joined. Rehnquist, C. J., filed an opinion concurring in part and dissenting in part, in which Stevens, J., joined.
'Daubert' on appeal
Supreme Court resolves splits among U.S. circuits
By MARK R. KRAVITZ
The National Law Journal
April 17, 2000Two terms ago, the Supreme Court resolved a circuit split on the standard that governs appellate review of a trial court's decision to admit or exclude expert testimony under Daubert. General Electric Co. v. Joiner, 522 U.S. 136 (1997). This term, the court considered yet another circuit split involving Daubert -- the proper remedy when an appellate court decides that a trial court erred in admitting expert testimony and a jury awarded the plaintiff a verdict on the basis of that testimony.
Does the plaintiff who relied on the erroneously admitted testimony get a new trial and a second chance to satisfy Daubert's demanding standards? Or does the defendant obtain judgment from the appellate court because, shorn of the erroneously admitted testimony, the record is insufficient to justify a plaintiff's verdict?
In an important ruling, the Supreme Court held in February that no second chance is required. Weisgram v. Marley Co., 120 S. Ct. 1011 (2000). A court of appeals may enter judgment for the defendant if it concludes that expert testimony was improperly admitted at trial under Daubert and that the remaining, properly admitted evidence is insufficient to support the verdict.
The Daubert decision is all too familiar. Emphasizing the "gatekeeping" function that the Federal Rules of Evidence require trial courts to perform when a party offers a witness as an expert, the Supreme Court held that courts must examine proposed expert testimony for reliability and relevance by engaging in a two-step inquiry. 509 U.S. at 592.
First, the trial court must determine whether the expert testimony reflects "scientific knowledge" -- that is, whether the expert's findings are "derived by the scientific method" and the expert's work product amounts to "good science." Id. at 590. The court provided a nonexclusive list of factors to assist courts in this inquiry. Second, the trial court must ensure that the expert's methodology, qualifications and reasoning can properly be applied to the facts at issue. This is what the court referred to as the "fit" requirement. Id.
Last term, the Supreme Court extended Daubert's gatekeeping requirement beyond matters of "scientific knowledge" to all expert testimony, whether based on professional studies or on personal experience and observation. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
In the wake of Daubert, circuit courts reached differing conclusions regarding the appropriate standard for reviewing trial court decisions to admit or exclude expert testimony. Some appellate courts reviewed Daubert rulings under a de novo standard, while others applied an abuse-of-discretion standard. Still others, such as the U.S. Court of Appeals for the 11th Circuit, applied a particularly stringent standard of review to a trial court's exclusion of expert testimony.
In Joiner, supra, the Supreme Court held that abuse of discretion is the proper standard of review and that it governs regardless of whether the trial court admitted or excluded expert testimony. 522 U.S. at 138-39. The court later explained, in Kumho Tire, that this standard applies not only to the trial court's ultimate decision to admit or deny expert testimony, but also to the way in which the trial court reached its decision.
As the Supreme Court put it, "The trial court must have the same kind of latitude in deciding how to test an expert's reliability, and to decide whether or when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides whether that expert's relevant testimony is reliable." 526 U.S. at 152. Despite the seeming breadth of this statement, it is clear that this abuse-of-discretion standard does not confer "discretion to abandon the gatekeeping function . . . [or] to perform that function inadequately." Id. at 158-59 (Scalia, J., concurring). The high court ensures judges' gatekeeping role
Therefore, even though deference is the hallmark of abuse-of-discretion review, the Supreme Court in Joiner and Kuhmo Tire thoroughly examined the expert testimony in each case against Daubert's benchmarks. And in each case, the court emphasized that nothing in the Federal Rules of Evidence requires a court to admit "opinion evidence that is connected to existing data only by the ipse dixit of the expert." Kumho Tire, 526 U.S. at 157 (quoting Joiner, 522 U.S. at 146). The Supreme Court thus took great pains to ensure that the trial court had, in fact, properly performed its gatekeeping role under Daubert, a level of review that appears to be more searching than the broad deference that the court ordinarily accords trial court decisions when using abuse-of-discretion review.
Although it is perhaps too soon to identify trends definitively, federal court opinions since Joiner also suggest that, in practice, appellate courts give greater scrutiny to Daubert claims than to other evidentiary issues governed by the abuse-of-discretion standard.
Regardless of whether the appellate court ultimately affirmed or reversed the trial court, and whether the trial court excluded or admitted the expert testimony, each of the circuits appears intent on ensuring that trial courts properly perform their gatekeeping functions under Daubert. See, e.g., Concord Boat Corp. v. Brunswick Corp., 2000 WL 303035 (8th Cir.); Black v. Food Lion Inc., 171 F.3d 308 (5th Cir. 1999); Ruiz-Trouche v. Pepsi Cola, 161 F.3d 77 (1st Cir. 1998); Ruffin v. Shaw Industries Inc., 149 F.3d 294 (4th Cir. 1998). In each of these cases, the courts extensively analyzed the experts' credentials, methodology, data and reasoning, as well as the trial court's rationale in admitting or excluding the testimony.
With courts of appeals carefully examining expert testimony to determine compliance with Daubert, it is no surprise that the next key question the Supreme Court faced was the proper remedy -- a new trial or judgment -- when an appellate court finds that the trial court improperly admitted expert testimony and the remaining evidence is insufficient to support the verdict. Although this issue can and does arise with any evidence, it is most acute in the context of expert testimony, in view of Daubert's standards and the importance of such testimony to burdens of proof.
Federal circuits are split on the proper remedy
In the years leading up to Weisgram, the circuits split fairly evenly on that question. Some entered judgment for the defendant under such circumstances. Others held that under Rule 50(d) of the Federal Rules of Civil Procedure, an appellate court must consider the record as it existed at trial, without excluding incompetent evidence. Under that approach, the most relief an appellate court could award was a new trial.
Weisgram was a wrongful-death action. At trial, the plaintiffs offered testimony from three expert witnesses -- two fire investigators and a metallurgist -- to prove that a defective heater had caused a deadly fire. The trial court admitted the testimony over objection and later denied the defendant's motion for judgment on the ground that the plaintiffs had failed to meet their burden of proof. When the jury returned a verdict for the plaintiffs, the defendant appealed, repeating its claim that the expert testimony did not satisfy Daubert and that without that testimony, the plaintiffs had not met their burden of proof.
Consistent with the higher level of scrutiny that appellate courts appear to be giving Daubert determinations, the 8th Circuit measured the expert testimony against Daubert's requirements and agreed with the defendant that the trial court should not have admitted the testimony. Having excised the expert testimony, the court had little difficulty finding that the remaining evidence did not satisfy the plaintiffs' burden of proof. The court granted judgment for the defendant.
The Supreme Court affirmed. The court held that Rule 50(d) does permit an appellate court to enter judgment when it concludes that evidence was erroneously admitted at trial and the remaining, competent evidence is insufficient.
The plaintiffs had argued that insufficiency of evidence caused by deletion of evidence on appeal should require an "automatic remand" to allow the trial court, which has firsthand knowledge of the witnesses and the case, to decide whether a new trial or judgment was the appropriate remedy under the circumstances. But the Supreme Court rejected this approach. In the court's view, there is no distinction between cases in which the plaintiff did not produce enough evidence at trial to satisfy its burden of proof and cases, such as Weisgram, in which the proof became insufficient only after the court of appeals excised evidence improperly admitted at trial.
The Supreme Court was also unpersuaded by the plaintiffs' argument that it was "fundamentally unfair" for an appellate court to enter judgment on the basis of an abridged trial record because the plaintiffs had relied on admission of the expert testimony at trial. While acknowledging that fairness to a verdict winner was "surely key" to the exercise of an appellate court's "informed discretion" to enter judgment, a new trial or remand, the court emphasized that since Daubert, "parties relying on expert evidence have had notice of the exacting standards of reliability such evidence must meet." 120 S. Ct. at 1021. The court found it "implausible to suggest" that post-Daubert parties would initially present less than their best expert evidence in the expectation of a second chance should their first effort fail. Id.
In this case, the plaintiffs had notice at every juncture that the defendant challenged their experts and the sufficiency of their evidence without their testimony. In those circumstances, the court found no unfairness in awarding judgment for the defendant. As the court warned, "[A] litigant's failure to buttress its position because of confidence in the strength of that position is always indulged in the litigant's own risk." Id. (internal quotation omitted).
Weisgram provides important lessons for plaintiffs and defendants. Weisgram and Daubert combine to offer defendants significant opportunities to attack a verdict on appeal and to obtain judgment there. Even if Daubert arguments fail at trial, the defendant can, and should, re-assert them on appeal, confident that the appellate court will likely review the expert testimony, and the trial court's decision to admit it, quite closely.
No new trial when a judgment beckons
Furthermore, when a defendant does establish error in the admission of expert testimony, no longer must it content itself with a new trial; judgment now beckons. The 8th Circuit underscored that point yet again in March, when it threw out a multimillion-dollar antitrust verdict and entered judgment for the defendants because the plaintiffs' expert testimony did not satisfy Daubert. Concord Boat, 2000 WL 303035. To take advantage of these opportunities, however, a defendant must properly preserve any Daubert objections at trial and move for judgment both during and after trial on the ground that, without the expert testimony, the plaintiff cannot satisfy its burden.
For plaintiffs, Weisgram is problematic. It transforms expert testimony into a potential time bomb that can detonate on appeal and not only rob a plaintiff of a verdict, but cost it the case as well. Plaintiffs' counsel are certainly on notice now -- if they were not before -- that they must take any Daubert challenge very seriously. They must both shore up their experts' opinions and provide as much additional testimony, expert or otherwise, as possible. Otherwise, they face the possibility of losing their case -- not before a trial judge or jury, but on appeal.
Weisgram creates another dilemma for plaintiffs' counsel on appeal. As the Supreme Court recognized, it is awkward for an appellee to urge the correctness of a verdict, on one hand, and at the same time point out, in the alternative, grounds for a new trial. 120 S. Ct. at 1021 n. 11. Yet, as Weisgram shows, an appellee's failure to do so may jeopardize its chances of obtaining a new trial if the appellate court holds that expert testimony was wrongfully admitted. To preserve the possibility of a new trial, appellees must now consider raising the new-trial option in their appellate briefs.
Mark R. Kravitz is head of the appellate practice group at New Haven, Conn.-based Wiggin & Dana. He is also a visiting lecturer in law at Yale Law School.
Copyright 2000, The New York Law Publishing Company
CHALLENGING THE ADMISSIBILITY OF MENTAL EXPERT TESTIMONY
(click to download in Adobe Acrobat pdf format)
by Marc Sageman MD, PhD
THE PRACTICAL LITIGATOR
JANUARY, 2002
Copyright 2002 American Law Institute-American Bar Association Committee On Continuing Professional Education
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 Collections
under which this article appears: Other
Forensic Issues |
Am J Psychiatry 159:1819-1825, November 2002
© 2002
American Psychiatric Association
Reviews and Overviews |
Liability for the Psychiatrist Expert Witness
OBJECTIVE: An increasing number of general psychiatrists are acting as expert witnesses in the legal system. The purpose of this article is to help psychiatrists who are interested in doing forensic work by informing them of the risks entailed. METHOD: The author reviews the medical and legal literature about expert witness immunity. RESULTS: The author explains the traditional concept of expert witness immunity and shows how a variety of factors have led to the erosion of this immunity. These factors include the proliferation of experts, the inadequacy of traditional safeguards of potential prosecution for perjury and cross-examination, the growth of attorney malpractice, the lack of protection of the injured party from unscrupulous witnesses, and the ineffectiveness of Daubert v. Merrell Dow Pharmaceuticals. Examples are given of how expert witnesses are being held accountable by professional associations and state medical boards and through tort liability. CONCLUSIONS: The author provides risk-management strategies and guidelines for psychiatrists who are considering engaging in forensic work.
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