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Reprinted with permission from Scientific Review: Admissibility and the Use of Expert Evidence in the Courtroom, Monograph No. 9, available for purchase from: http://apps.americanbar.org/abastore/index.cfm?pid=5450066§ion=main&fm=Product.AddToCart 2013© by the American Association. All rights reserved. This or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written of the American Bar Association.

CHAPTER XII EXPERT EVIDENCE IN THE DISTRICT OF COLUMBIA*

by

Christine G. Rolph Scott C. Jones Latham & Watkins LLP 555 Eleventh Street, N.W., Suite 1000 Washington, D.C. 20004 (202) 637-3367 [email protected] [email protected]

A. EXPERT EVIDENCE IN THE DISTRICT OF COLUMBIA CIRCUIT

1. Key Decisions Applying Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)

The Supreme ’s treatment of expert issues in Daubert was consistent with prec- edent in the D.C. Circuit. As such, Daubert did not unsettle expert evidence practice in the jurisdic- tion. The lead case applying Daubert in the D.C. Circuit is Ambrosini v. Labarraque, 101 F.3d 129 (D.C. Cir. 1996) [hereinafter Ambrosini]. This section begins by discussing the Ambrosini decision. Next, it provides detail on a number of related expert testimony cases in the D.C. Circuit. Finally, the section turns to a discussion of the procedural rules regarding expert testimony which are relatively unique to the D.C. Circuit.

a. Ambrosini v. Labarraque, 101 F.3d 129 (D.C. Cir. 1996)

The D.C. Circuit extensively incorporated Daubert into its expert evidence in Ambrosini, a case where the circuit court addressed the admissibility of expert evidence regarding whether Depo-Provera, a brand name, progestogen-only contraceptive, caused a minor-plaintiff’s birth defects. The court employed Daubert to determine the admissibility of two types of expert evidence: evidence linking Depo-Provera to birth defects generally (general ) and evidence linking Depo-Provera to the minor plaintiff’s injuries specifically (specific causation). The decision

* The authors acknowledge the work of Gregory S. Kaufman in drafting a prior version of the chapter which appeared in Scientific Evidence Review Monograph No. 6, as well as the work of Jess Lennon, who provided research and drafting assistance in the preparation of this chapter.

445 446 Scientific Evidence Review

focused on whether weaknesses in the quality of the experts’ and conclusions should 1 act as a bar to that testimony’s admissibility, or, rather, as considerations for the finder to weigh. Initially, the district court granted summary to the after refusing to admit the testimony of plaintiffs’ two expert on causation—an epidemiologist and a teratologist. The epidemiologist sought to offer testimony that Depo-Provera could cause birth defects like those sustained by the minor plaintiff. The teratologist sought to offer testimony that Depo-Provera spe- 2 cifically caused the minor plaintiff’s birth defects. The district court applied the Daubert two-prong test to determine whether the testimony was admissible. The first of Daubert’s two prongs concerns the reliability of the employed by the expert, while the second asks whether the expert’s testimony is likely to assist the . The district court began by considering the epidemiologist’s testimony on general causation. The district court ruled that, while the epidemiologist’s methodology for determining that Depo-Provera could cause birth defects was reliable, the testimony was nevertheless inadmissible because it was unlikely to assist the trier of fact. The district court stated that the testimony was unhelpful for two reasons: (1) the epidemiologist did not address “the relative risk between exposed and unexposed populations . . . of the birth defects from which [plaintiff] suffers,” and (2) the epidemiologist’s opin- ion that the drug “can cause” the type of birth defects plaintiff did not meet the plaintiff’s ultimate for causation. Ambrosini, 101 F.3d at 135. The district court also excluded the testimony of the teratologist. First, as to general causation, the court rejected the methodology employed by the teratologist to find that Depo-Provera can cause birth defects. The court held that the teratologist unfairly minimized the epidemiological studies showing no causal relationship between the drug and birth defects, but then failed to offer a rationale for ignoring those studies. Id. at 137. Second, as to specific causation, the district court found fault with the teratologist’s methodology, which was limited to a review of the medical file and failed to take sufficient steps to rule out alternative causes of the birth defects. Id. On appeal, the circuit court reversed. The court ruled that the lower court erred by blurring the distinction between Daubert’s threshold admissibility requirements and the “persuasive weight” to be assigned to expert testimony:

The Daubert analysis does not establish a heightened threshold for the of expert evidence, but rather focuses on the court’s “gatekeeper” role as a check on “subjective ” and “unsupported speculation.” . . . Even if the burden placed on the “gatekeeper” may seem heavy at times, there is nothing in Daubert to suggest that become scien- tific experts, much less evaluators of the persuasiveness of an expert’s conclusion. Rather, once an expert has explained his or her methodology, and has withstood cross-examination

1 As a procedural matter, the defense previously moved for , arguing that the plaintiffs had shown no reliable scientific evidence demonstrating causation. Plaintiffs responded with affidavits from an epidemiologist testifying as to general causation and a teratologist testifying as to both general and specific causation. Ambrosini v. Labarraque, 966 F.2d 1464 (D.C. Cir. 1992). The district court’s initial grant of summary judgment to the defendants was reversed by the circuit court, which found that the district court had not con- ducted a sufficient inquiry into the bases of the plaintiffs’ experts’ opinions. On remand, the district court again granted summary judgment to the defendants. See Ambrosini v. Upjohn Co., No. 84-3483, 1995 WL 637650 (D.D.C. Oct. 18, 1995), rev’d, Ambrosini, 101 F.3d 129. 2 Teratology is described as “that which is concerned with the development of mal- formations or abnormal development in animals and human beings.” Upjohn, 1995 WL 637650, at *6. Chapter 12 447

or evidence suggesting that the methodology is not derived from the scientific method, the expert’s testimony, so long as it “fits” an issue in the case, is admissible . . .

Id. at 134 (internal citations omitted); see also id. at 131. The circuit court concluded that Daubert only envisions a limited “gatekeeper” role for the court, rather than encouraging an independent assessment of the evidence for accuracy and persuasiveness. Applying this standard, the circuit court first revisited the admissibility of the epidemiologist’s testimony under the Daubert test. First, the court confirmed as reliable under Daubert the epidemi- ologist’s methodology which it noted was a conventional “totality of the data” technique examining the entire medical on the subject. Id. at 136. Although the court expressed concern that some of the expert’s calculations were unpublished, the epidemiologist had stated that there was no need for publishing the work because the material was not novel, the drug was off the market, and there was not sufficient interest in the field. The court found that this response was sufficient to sustain the Daubert analysis. Id. at 136–37. However, the key concern for the epidemiologist’s testimony had been whether it would survive the second Daubert prong. Here, the D.C. Circuit corrected the lower court’s analysis, stating that the second Daubert prong tests mere . Testimony need not satisfy the plaintiff’s burden on the to comply with the ; the testimony must simply relate to a contested issue and aid the fact finder in resolving the claim. Id. at 135–36. Thus, although the epi- demiologist’s inability to be clear about the probability of specific causation might prove fatal to the plaintiff’s claim at , it would not act as a bar to admissibility. Id. The court ruled that because the epidemiologist’s findings would still be helpful to the trier of fact, the testimony was admissible. The circuit court then turned to the teratologist’s testimony, addressing his conclusions on gen- eral causation and specific causation independently. With regard to general causation, the circuit court credited the expert’s methodology, which relied on specific animal, pharmacological, and human studies. Id. at 137. Although none of the studies specifically concluded that the drug caused the type of birth defects suffered by the plaintiff, the court noted that the expert purported to follow the “traditional methodology of experts in his field, after considering all the data and evidence,” to arrive at his conclusion of causation. Id. Indeed, the expert’s identification of the research he reviewed and the explanation of his techniques were satisfactory under the logic of Ferebee v. Chev- ron Chemical Co., 736 F.2d 1529 (D.C. Cir. 1984), decided thirteen years earlier. In Ferebee, the circuit court stressed that “a cause-effect relationship need not be clearly estab- lished by animal or epidemiological studies before a doctor can testify that, in his [or her] opinion, such a relationship exists.” Id. at 1535. In other words, if an expert is well-qualified in her field, her conclusions will not be barred because they are the first of their kind. There need not be a critical mass of prior supporting data to satisfy Daubert’s first prong. Thus, here, where the expert’s method involved the synthesis of multiple studies, the fact that no single study had been conclusive did not affect admissibility. Ambrosini, 101 F.3d at 137. The Ambrosini court found further support for the teratologist’s general causation testimony from the reasoning of Mendes-Silva. Mendes-Silva v. , 980 F.2d 1482 (D.C. Cir. 1993). There, the circuit court noted that “[w]hen the underlying basis or methods of an expert’s opinion are of a type reasonably relied upon by the experts in the field, the court must allow the opinion to be assessed by the fact finder—even if the opinion reaches a novel conclusion.” Id. at 1485. Thus, neither the fact that the teratologist could not point to a specific epidemiological study proving his conclusions, nor that his conclusions were novel, would render his testimony inadmissible. The methodology was of a type reasonably relied upon by experts in the field. The circuit court’s review of the teratologist’s testimony on specific causation focused on reli- ability. The court found that the teratologist’s use of differential diagnosis was a reliable method used within the relevant field. Ambrosini, 101 F.3d at 140. Further, while the expert’s review of 448 Scientific Evidence Review

alternative causes may not have been exhaustive, the fact that the doctor’s differential analysis did not eliminate all possible alternatives would not bar admission of the evidence. The expert’s conclu- sions would still be helpful to the , just less so. The court explained that the fact finders were responsible for determining the persuasive weight of the testimony. Id. Thus, the court concluded: “Daubert instructs that the admissibility inquiry focuses not on conclusions, but on approaches, and the record shows that both [experts] employed scientifically valid methodologies. . . . Their conclusions were neither the ‘subjective belief’ or ‘unsupported speculation’ that Daubert and the Federal Rules would preclude a fact finder from hearing . . . .” Id. In reversing the trial court’s grant of summary judgment to defendant, the Ambrosini court sum- marized by stating:

The district court’s error . . . did not lie in its mischaracterization of the experts’ meth- odologies but instead in its misconception of the limited “gatekeeper” role envisioned in Daubert. By attempting to evaluate the credibility of opposing experts and the persuasive- ness of competing scientific studies, the district court conflated the questions of the admis- sibility of expert testimony and the weight appropriately to be accorded such testimony by a fact finder.

Id. at 141 (internal citations omitted). Together, the Ambrosini court’s treatment of the two experts’ opinions confirmed the liberalizing effect of Daubert on the admissibility of expert testimony. Under Ambrosini, the gatekeeper role stretches only to questions of the reliability and relevance of expert testimony. Importantly, the of Ambrosini can be distinguished from the facts forming a proper bar to admissibility in Richardson v. Richardson-Merrell, Inc., 857 F.2d 823 (D.C. Cir. 1988). In Richard- son, parties wrestled over the admissibility of expert testimony regarding the putative teratogenic effects of Bendectin. In that case, three distinct reasons compelled a ruling of inadmissibility. First, the expert admitted that his methodology was not generally accepted. Ambrosini, 101 F.3d at 139. Second, there was an overwhelming body of contradictory epidemiological evidence. Richardson, 857 F.2d at 830. And third, the doctor provided unreviewed recalculations of data gathered by oth- ers, while in Ambrosini, the teratologist’s testimony involved a more trustworthy assessment of the limitations of peer-reviewed studies. Id. at 831. b. Other Cases

The following cases are relevant when determining the contours of expert evidence admissibil- ity in the federal of the D.C. Circuit.

(1) Is the expert’s opinion reliable?

(a) Lakie v. SmithKline Beecham, 965 F. Supp. 49 (D.D.C. 1997)—Plaintiff claimed that benzene found in denture adhesives caused him personal injuries. The court admitted expert testimony as to specific causation based on a differential analysis that ruled out alternative causes of the plaintiff’s injuries. Despite the lack of direct, foundational epidemiological evidence for general causation, the court admitted the testimony, in part, because there was indirect evidence upholding general causation. Other studies had linked benzene exposure to similar bone marrow disorders. Further, the court admitted the specific causation testimony even though the expert’s analysis failed to eliminate some possible alternative causes of the plaintiff’s injuries. The court explained that the Chapter 12 449

existence of alternative causes should affect the weight that fact finders assign to the expert’s testimony, not its admissibility. (b) Raynor v. Merrell Pharm., Inc., 104 F.3d 1371 (D.C. Cir. 1997)—Plaintiff brought a personal injury claim against Merrell Pharmaceuticals for birth defects allegedly caused by the drug Bendectin. Plaintiff offered expert testimony based on two sets of research— in vivo animal studies and in vitro studies—to determine general causation, and followed with testimony based on differential diagnosis to show specific causation. The court held the testimony inadmissible. First, the court explained that the in vivo animal studies and in vitro studies could only be verified through epidemiological research. A wealth of epidemiological research had already been collected and was contrary to these studies. Second, the court explained that testimony on specific causation has “legitimacy only as follow-up to ” that the substance in question could cause the injury. Id. at 1376. The methodologies of the experts, thus, could not form the of scientific knowledge necessary to make the expert testimony admissible. (c) Bell v. Gonzales, No. 03-163, 2005 WL 3555490 (D.D.C. Dec. 23, 2005)—Plaintiff alleged that he was reassigned from his job after his employers learned that he had consulted a counselor regarding his having Tourette’s syndrome (TS). The plaintiff presented an expert who testified that the timing of plaintiff’s injuries (increased obsessive compulsive behavior and exacerbated TS characteristics) supported his opinion that the distress brought on by the plaintiff’s discriminatory reassignment caused his injuries. The defense countered that Daubert required the expert to conduct a differential analysis, ruling out alternative causes, to establish specific causation. The court resolved the dispute in favor of the plaintiff, explaining that alternative causation is one of a number of permissible methods for showing specific causation. While possible alternative causes are relevant, expert testimony will not be excluded merely because there may be other causes involved. (d) Jenkins v. United States, 307 F.2d 637 (D.C. Cir. 1962)—Appellant was convicted of assault with a deadly weapon and related . The trial court excluded the opinions of two psychiatrists because they were formed without personal knowledge of all the facts on which their opinions were based. The psychiatrists’ conclusions relied, in part, on retesting of the appellant conducted by another doctor on their staff. The court of appeals reversed, explaining that “the better reasoned authorities admit opinion testimony based, in part, upon reports of others which are not in evidence but which the expert customarily relies upon in the practice of his profession.” Id. at 641. Because it is the “well known practice of psychiatrists” to rely on a psychologist’s report when conducting a diagnosis, the methodology was sound and the expert testimony should have been admitted. Id. at 642. (e) United States v. Stagliano, 729 F. Supp. 2d 222 (D.D.C. 2010)—Defendants were accused of distributing obscene videos in interstate commerce. They sought to introduce a psychologist’s opinion that, based on his experience treating patients, the videos did not lack serious scientific value. The court excluded the testimony, explaining that where an expert seeks to offer scientific testimony, the reliability of that testimony must be demonstrated by the traditional Daubert factors,3 rather than nontraditional factors, such

3 The traditional Daubert factors include: (1) “whether the theory or technique can be and has been tested,” (2) “whether the theory or technique has been subjected to peer review and publication,” (3) “the method’s known or potential rate of error,” and (4) “whether the theory or technique finds general acceptance in the relevant scientific community.” Ambrosini, 101 F.3d at 134 (citing Daubert, 509 U.S. at 593–94). 450 Scientific Evidence Review

as personal knowledge and experience. However, where an expert offers nonscientific testimony, its reliability may be demonstrated via nontraditional factors.

(2) Will the testimony assist the trier of fact?

(a) United States v. Naegele, 471 F. Supp. 2d 152 (D.D.C. 2007)—Defendant offered multiple experts to aid in his defense of indictments arising out of proceedings. One expert on voice recording and enhancement technology was presented to testify whether the defendant’s voice in a particular recording was intelligible. The court excluded the testimony, explaining that because the jury was competent to determine whether the plaintiff’s voice was intelligible, the expert’s testimony would not assist the trier of fact. The court also excluded expert testimony regarding the complexity of certain bankruptcy forms. The court held that the jury was competent to determine whether the forms were confusing, since filling out forms is within the common experience of jurors. (b) United States v. Libby, 461 F. Supp. 2d 3 (D.D.C. 2006)—Defendant faced charges of obstruction of , false statements, and . The defendant attempted to offer expert testimony to show the plausibility of his faulty memory defense. In excluding the testimony, the court held, in part, that an expert’s testimony regarding the rate of error in human recollection would be inadmissible because the subject matter—human forgetfulness—was within the common knowledge of the jury. Thus, expert testimony would not assist the trier of fact.

(3) Qualifications of the expert

(a) Groobert v. President & Dirs. of Georgetown Coll., 219 F. Supp. 2d 1 (D.D.C. 2002)— In this wrongful death action, plaintiff sought compensation for lost future earnings. The plaintiff introduced a stock photographer to testify about the future earnings of the decedent, who had also been a stock photographer. The defendant complained that the expert had no training in evaluating the career paths of photographers. Nevertheless, the district court held that the photographer’s experience in the art field was a sufficient basis for giving an expert opinion on future earnings in that field. One may become qualified as an expert through skill, training, , or experience. (b) Rogers v. Ingersoll-Rand, 971 F. Supp. 4 (D.D.C. 1997)—Plaintiff brought a products liability personal injury action against the defendant. The defendant notified the plaintiff less than two weeks before trial of its intent to call a witness to testify regarding new tests conducted on the product at issue. The defendant claimed that the witness was a lay witness, as opposed to an expert, but the trial court disagreed and excluded the testimony. In denying defendant’s for a new trial, the district court explained that a witness who draws inferences that a jury would be unable to draw from ordinary experience is an , regardless of designation by the offering party. (c) Coleman v. Parkline Corp., 844 F.2d 863 (D.C. Cir. 1988)—Plaintiff sued an elevator cab manufacturer for securing elevator domes in a manner that contributed to an injury she sustained while unloading the domes. The plaintiff offered, and the trial court admitted, a witness who had an engineering degree, had formerly worked for the Occupational Safety and Health Administration and the Institute of Safety Analysis, and had considerable experience with investigating accidents, determining their causes, and making suggestions about their prevention. However, the expert did not have personal Chapter 12 451

experience in the subject of his testimony—securing and unloading elevator cab domes. Nevertheless, the circuit court upheld the admission of the testimony, explaining that experts need not have personal familiarity with the subject of the testimony. Rather, the rule simply requires an expert witness to wield expertise that permits the witness to draw conclusions that aid the trier of fact.

2. Expert-Related Rules and Procedural Issues

The D.C. Circuit has published a limited of additions to the Federal Rules of Civil Pro- cedure (Fed. R. Civ. P.) and the Federal Rules of Evidence (Fed. R. Evid.) which apply to expert witnesses. Under Rule 16.3, litigants must confer within twenty-one days prior to when a scheduling con- ference is held or a scheduling order is due. This rule parallels Fed. R. Civ. P. 26(f), and serves as the anchor for subsequent sections that enumerate the topics which must be considered at the pretrial conference. Rule 16.3(c)(9) outlines the treatment of expert witnesses at the pretrial conference, explaining that must confer over whether the requirement of the exchange of expert wit- ness reports and information pursuant to Rule 26(a)(2) of the Fed. R. Civ. P. will be modified, and whether and when depositions of the expert witnesses will occur. Beyond conferring over discretionary expert witness procedures, under Rule 16.5(a)(2), coun- sel are required to file and serve a pretrial statement not less than fourteen days prior to the final pre- trial conference. Rule 16.5(b)(5) explains that in this statement, litigants should include a schedule of witnesses to be brought and a brief description of the testimony they intend to offer, including an estimate of the time it will take to elicit that testimony. Witnesses who are deemed experts must be designated by an asterisk. An additional expert rule specific to the D.C. federal courts addresses the assessment of expert witness fees. Rule 54.1(d)(12) instructs the clerk to tax fees of court-appointed expert witnesses when they are requested to do so in the bill of costs. A crucial distinction is made between court-appointed experts and those experts who are not court-appointed. As the court made clear in Machesney v. Larry Bruni, P.C., 905 F. Supp. 1122, 1138 (D.D.C. 1995), if an expert is not court-appointed, this provision is inapplicable and the fees will not be taxed as costs by the prevailing party.

B. EXPERT EVIDENCE IN LOCAL DISTRICT OF COLUMBIA COURTS

1. Key Decisions

The D.C. Superior Court and D.C. Court of Appeals do not apply the Federal Rules of Evi- dence. Further, D.C. courts do not rely on legislatively created evidentiary rules. Thus, the common on evidence controls expert evidence issues within the District. One should be careful to note that pre-1975 local federal cases may continue to inform contemporary practices. Despite having different sources, federal and D.C. rules on expert evidence overlap substan- tially. As the key decision of Dyas v. United States, 376 A.2d 827 (D.C. 1977), reveals, some of the of the Daubert test is represented in Dyas’s three-step treatment of expert testimony. However, relevant distinctions between the common law of D.C. and federal expert evidence law exist, especially regarding court determinations of the reliability of expert testimony, and such varia- tions are noted throughout this section. 452 Scientific Evidence Review

a. Dyas v. United States, 376 A.2d 827 (1977)

The leading expert case pertaining to the local courts of D.C. is Dyas v. United States.4 The Dyas court addressed whether a trial had improperly excluded a defendant’s expert testimony on the issue of the reliability of eyewitness identifications. While using language slightly different than that of Daubert, the court’s treatment closely followed the second, “fit” prong of the Daubert two-part standard. Specifically, the court questioned whether the testimony was within the ken of the average layman and likely to duplicate the work of thorough cross-examination of the eyewitness, thereby rendering the testimony unlikely to aid the triers of fact. Id. at 832.

The court of appeals began by outlining its three-part test for admissibility of expert testimony:

(1) the subject matter “must be so distinctively related to some science, profession, busi- ness, or occupation as to be beyond the ken of the average layman”; (2) “the witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth”; and (3) expert testimony is inadmissible if “the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted even by an expert.”

Id. (quoting McCormick on Evidence § 13, at 29–31 (E. Cleary ed., 2d ed. 1972)). The court took a close look at the first two prongs of the test. It initially questioned whether the subject of the testimony—the reliability of eyewitnesses—fell outside the ken of the average layman. Drawing the same conclusion as a Ninth Circuit case on the issue, the court excluded the expert testimony because the subject matter was well within the experience of the average layman. See United States v. Amaral, 488 F.2d 1148, 1153 (9th Cir. 1973). More plainly, the court stated that the jury was perfectly capable of determining for itself the reliability of a witness’s testimony. Operating in tandem, the second prong of Dyas worked to bar admissibility because well- developed cross-examination would be sufficiently probative of the reliability of the identification by the eyewitness. Dyas, 376 A.2d at 832. In other words, because determining the credibility of witness testimony is within the common experience of the jury, cross-examination of an eyewitness would suffice to assist the jury in determining the witnesses’ reliability. Expert testimony would be unnecessarily duplicative and therefore unhelpful to the trier of fact. The first two prongs of the Dyas test proved dispositive here. As applied, these two prongs— involving the likelihood of the testimony assisting the trier of fact—closely resemble the second prong of the Daubert test. However, because the first two prongs of the Dyas test controlled, Dyas did not elaborate on the issue of reliability—the province of the first Daubert prong and Dyas’s third prong. Dyas’s third prong answers the reliability question differently from Daubert. Rather than adopt the federal standard on reliability, the D.C. Court of Appeals reaffirmed that “[i]n our , the seminal case of Frye v. United States . . . is the starting point in addressing questions of admissi- bility of scientific evidence.” United States v. Jenkins, 887 A.2d 1013, 1021 (D.C. 2005). Thus, when

4 In Dyas, a jury convicted the defendant of armed robbery. On appeal, Dyas complained that the trial judge had improperly denied him the chance to present expert testimony questioning the general reliability of eyewitnesses. Dyas, 376 A.2d at 828–29. Because the admission of expert testimony is committed to the broad discretion of the trial court, the D.C. Court of Appeals applied a “manifestly erroneous” standard. Dyas, 376 A.2d at 831 (quoting Salem v. U.S. Lines Co., 370 U.S. 31, 35 (1962)). Chapter 12 453

testing the reliability of expert testimony, Dyas’s third prong instructs counsel to turn to Frye, not Daubert. Frye applies a “general acceptance” test for reliability. Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). To be admissible, expert testimony must rely on methods that already have gained sufficient recognition within the relevant community of experts. Id. at 1013–14. Despite the Dyas holding, there is not a per se rule that expert testimony regarding eyewitness credibility does not satisfy the Dyas test. Benn v. United States, 978 A.2d 1257, 1277 (D.C. 2009). Rather, “the decision to admit or exclude expert testimony must be made on a case-by-case basis, grounded on the made and on its potential to assist the jury in the particular case before the 5 court.” Id. at 1273 (emphasis added). While the Dyas-Frye standard diverges from federal court jurisprudence regarding Fed. R. Evid. 702, D.C. courts have in large part adopted Fed. R. Evid. 7036 and 705.7 The District of Columbia’s banner Fed. R. Evid. 703 case is In re Melton, 565 A.2d 635 (D.C. 1989), rev’d on other grounds, 597 A.2d 892 (D.C. 1991). There, the court of appeals debated whether statements by a patient’s family qualified as information of the type customarily and reasonably relied upon by experts in psychiatry. While prior cases had upheld similar bases for expert testimony, the court specifically refer- enced the language of, and commentary to, Fed. R. Evid. 703 in reaching the same conclusion. In particular, the court approved of an example case offered in the advisory committee notes to Fed. R. Evid. 703, which specifically validated the use of similar evidence as the basis of a ’s 8 testimony.

5 For instance, “[w]hen other evidence points to the verity of a victim’s identification of the accused, such as the victim’s depiction of the gun in a sketch immediately after the and the ’s recovery of a gun in the motel matching that description, that evidence is a legitimate consideration for the trial judge in exercising judgment on whether to exclude such expert testimony” as not being beyond the ken of the jury. Patterson v. United States, 37 A.3d 230, 238 (D.C. 2012). 6 At the time of adoption, Fed. R. Evid. 703 read as follows: “The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to [the expert] at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.” Fed. R. Evid. 703 (1975) (amended Oct. 1, 1987; Dec. 1, 2000). 7 At the time, the 1975 iteration of Fed. R. Evid. 705 controlled: “The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.” Fed. R. Evid. 705 (1975) (amended Oct. 1, 1987; Dec. 1, 1993). 8 The advisory committee notes states: “[A] physician in his [or her] own practice bases his [or her] diagnosis on information from numerous sources and of considerable variety, including statements by patients and relatives, reports and opinions from nurses, technicians and other doctors, hospital records, and X-rays. Most of them are admissible in evidence, but only with the expenditure of substantial time in producing and examining various authenticating witnesses. The physician makes life-and-death decisions in reliance upon them. His [or her] validation, expertly performed and subject to cross-examination, ought to suffice for judicial purposes.” Fed. R. Evid. 703 advisory committee’s note (1975) (emphasis added). 454 Scientific Evidence Review

For the purpose of determining what constitutes reasonable and customary reliance within a field, the Melton court adopted a two-part test.9 Under this test, a trial judge will admit expert opinion based on testimony under Fed. R. Evid. 703 when “(1) the judge is persuaded that experts in the field commonly rely on the particular type of hearsay information in addressing the specific type of problem raised in the case before the court, and (2) the judge concludes that the information (if not admissible for its truth under an exception to the hearsay rule) is of a type for which the underlying reliability of the data can be sufficiently explored through cross-examination of the testifying expert.” In re Melton, 597 A.2d at 904 (emphasis omitted). D.C. courts adopted the reasoning of Fed. R. Evid. 705 in Clifford v. United States, 532 A.2d 628 (D.C. 1987). There, the court of appeals debated whether the trial court improperly excluded the appellant’s expert testimony because the appellant had refused to disclose test results on which the expert based his opinions. Id. at 630. The appellant, John Clifford, had been convicted for assault with intent to commit a sexual act. Clifford sought to introduce the testimony of a clinical psycholo- gist who would explain that, on the basis of an interview and test protocols, Clifford was unlikely to engage in the alleged activity absent drug inducement. Id. at 631. The trial court refused to admit the testimony. In reviewing the trial court’s decision to exclude the expert’s opinion, the court of appeals observed that in the jurisdiction already was consistent with the language of Fed. R. Evid. 705. Id. at 633. The court then proceeded to credit the rationale behind each aspect of the rule, making a particular effort to validate the use of cross-examination, as opposed to hypotheticals, to investigate the factual basis upon which expert testimony was based. Id. (“Although hypothetical questions are still permitted under the federal rules, the aim of Rule 705 is to replace the need for hypotheticals with reliance on cross-examination to bring out the basis of an expert’s testimony. Use of the adversary process should allow the opposing attorneys to explore an expert’s reasoning more selectively and, hence, more efficiently while reducing the opportunities for deceptive manipulation of the testimony”). While noting approval of the entirety of the rule, the court specifically adopted “the provision of Fed. R. Evid. 705 under which the trial court may order that a party proffering expert testimony turn over for inspection by the opponent any report or document on which the expert relied in forming the opinion to which he or she will testify.” Id. at 635. Finding the judge’s order acceptable under Fed. R. Evid. 705, the appellate court refused to overturn the trial court’s decision to exclude the evidence because Clifford refused to comply with the order to turn over documents on which his expert relied. b. Other Cases

(1) “Beyond the ken of the average layman”

Middleton v. United States, 401 A.2d 109 (D.C. 1979)—Appellants challenged the exclu- sion of expert testimony as to the frequency of chipped front teeth in the adult male popu- lation. Siding with the trial court, the decision explained “that the frequency of gapped or chipped teeth (with its attendant implications concerning the reliability of the eyewitness testimony) was not beyond the ken of the lay trier.” Id. at 130.

9 At the en banc hearing following In re Melton, the court counseled that Fed. R. Evid. 703 issue determinations should be handled prior to seating the jury. If counsel anticipates that such an issue will arise, she should file a or seek a ruling from the court to avoid disruption of testimony. In re Melton, 597 A.2d 892, 907 (D.C. 1991). Chapter 12 455

(2) “Sufficient skill, knowledge, expertise”

(a) District of Columbia v. Anderson, 597 A.2d 1295 (D.C. 1991)—The court considered whether a podiatrist could offer testimony regarding the standard of care in a action. The court held that a nonmedical witness is not necessarily prohibited from presenting testimony on medical issues, so long as the proffered witness has sufficient knowledge and experience to offer an opinion that could aid the trier of fact. (b) Johnson v. District of Columbia, 728 A.2d 70 (D.C. 1999)—Appellant offered a plumber as its expert witness testifying about the standard of care regarding commercial water heater . The plumber had no background in water heater design and showed a lack of knowledge of the regulations allegedly violated. Thus, the trial court and appellate court found that the plumber lacked sufficient knowledge and expertise to offer expert testimony on the subject. But see Jenkins v. United States, 307 F.2d at 644 (“[I]f experience or training enables a proffered expert witness to form an opinion which would aid the jury, in the absence of some countervailing consideration, his testimony will be received”).

(3) “Aiding the trier of fact”

St. Lewis v. Firestone, 130 A.2d 317 (D.C. 1957)—The trial court had admitted testimony from a fire investigator stating his opinion that the decedent had been smoking carelessly in bed. The court of appeals found error because the expert had not discovered any evidence shedding light on the cause of the fire or the supposed negligence of the decedent. Because “[n]o skilled training or special knowledge obtained from experience was applied in arriving at his conclusion, . . . anyone of ordinary training and intelligence would be equally capable of an opinion.” Id. at 319. Such guesswork would be unhelpful to the triers of fact, who could just as easily and accurately draw their own conclusions.

(4) “State of the art or scientific knowledge does not permit a reasonable opinion to be asserted”

(a) United States v. Jenkins, 887 A.2d 1013 (D.C. 2005)—A trial court granted the defense’s Frye motion seeking to exclude results from a DNA test. The defense argued that there was controversy within the scientific community as to the validity of the three prevailing DNA match methodologies, demonstrating that the methodology used had not gained general acceptance within the field. The court of appeals disagreed, however, explaining that experts in the field were not debating the validity of the methodologies, but rather were concerned with which methodology of DNA matching was most probative. The court reversed and remanded, stating that the controversy within the scientific community went to relevancy—a matter the jury is best equipped to handle. (b) Douglas v. United States, 386 A.2d 289 (D.C. 1978)—Defendant offered testimony of a psychologist which asserted that because the defendant had no history of sexual deviancy, he was unlikely to have committed the particular offense. The court of appeals upheld the trial court’s finding of inadmissibility on the grounds that the psychology was too inexact. Scientific knowledge could not “determine with sufficient reliability that an individual did not commit a certain act, based solely on the presence of some characteristics and the absence of certain observable symptoms.” Id. at 296.

(5) Rule 703 or Rule 705 Issues

(a) Jenkins v. United States, 307 F.2d 637 (D.C. Cir. 1962)—Appellant challenged the trial court’s decision to exclude the opinions of two psychiatrists because they were formed, in 456 Scientific Evidence Review

part, without personal knowledge. The court of appeals reversed, explaining that “the better reasoned authorities admit opinion testimony based, in part, upon reports of others which are not in evidence but which the expert customarily relies upon in the practice of his profession.” Id. at 641. See also L.C.D. v. District of Columbia, 488 A.2d 918 (D.C. 1985). (b) Wash. Metro. Area Transit Auth. v. Davis, 606 A.2d 165 (D.C. 1992)—Expert testimony offered by plaintiff regarding potential lost earnings of a deceased nine-year-old was found inadmissible due to an insufficient basis. The expert’s calculations assumed that the nine-year-old would become a professional (doctor, , or government employee with G16 status), despite the fact that she was a C-average student, no one in her immediate family completed college, and she had expressed interest in a lesser paying field. Absent an authoritative source for determining that the child would have graduated from graduate school, the basis for the testimony was merely personal opinion, “rather than scientific or expert in nature.” Id. at 178. (c) Lyons v. Barrazotto, 667 A.2d 314 (D.C. 1995)—The D.C. Court of Appeals considered whether it was an abuse of discretion for a trial court to grant a new trial on the basis that it had previously admitted into evidence medical reports and results prepared by nontestifying experts, which helped form the basis of the testimony offered by two experts. Finding an abuse of discretion, the court explained that the hearsay evidence was correctly admitted for the limited purpose of explaining the basis of the experts’ testimony, and that its prejudicial effect did not substantially outweigh its probative 10 value.

2. Expert-Related Rules and Procedural Issues

The Superior Court Rules of (SCR—Civil Rules) touch on a number of sub- jects related to expert evidence. The SCR—Civil Rules cover the following areas: , court- appointed experts, expert fees, and taped expert depositions. Discussion of the procedures governing the use of expert testimony in the D.C. courts properly begins with SCR-Civil Rule 16(b). Rule 16(b) requires parties to hold a scheduling and settlement conference as soon as practicable following the filing of the complaint. The conference provides the judge the opportunity to set a scheduling conference order that will include the dates for the exchange of SCR-Civil Rule 26(b)(4) expert testimony statements. The discovery process generally follows Rule 26; subsection (b)(4) speaks specifically to the treatment of expert testimony. Rule 26(b)(4) requires a party to identify each individual expected to be called as an expert, state the subject matter of the expert’s testimony, reveal the substantive facts and opinions to which the expert will testify, and explain the grounds for the expert’s conclusions. Practitioners should be wary of the implications of Rule 26(b)(4) statements. First, designating a witness as an expert entitles all litigants to the expert’s opinions. In Street v. Hedgepath, the D.C. Court of Appeals explained how broadly this principle reaches when it held “that ex parte interviews with a treating physician are a permissible means of informal discovery when the plaintiff has put

10 It should be noted that “whereas the common law of evidence in the District of Colum- bia favors the admission of an expert’s testimony about the hearsay bases of his opinions and permits its presentation on unless its legitimate probative value is substantially outweighed by the risk of unfair prejudice . . ., Rule 703 now disfavors the admission of such testimony and requires its exclusion unless the risk of unfair prejudice is substantially outweighed by its legitimate probative value.” In re Amey, 40 A.3d 902, 913 (D.C. 2012) (emphasis omitted). Chapter 12 457

the medical condition of that physician’s patient at issue by filing a .” 607 A.2d 1238, 1247 (D.C. 1992). On the other hand, failure to include an expert witness or the subject on which she is expected to testify has ramifications as well. First, witnesses whose names are not found in the pretrial state- ment generally will only be allowed to testify for impeachment or rebuttal purposes. SCR-Civil Rule 16(e) (“Except for plaintiff’s rebuttal case or for impeachment purposes, no party may offer at trial the testimony of any witness not listed in the pretrial statement of the parties . . . .”). Thus, one court has held that expert testimony could not be offered because it did not properly constitute rebuttal evidence. See Cooper v. Safeway Stores, Inc., 629 A.2d 31 (D.C. 1993). Typically, counsel may offer a supplement to its pretrial statement to add an expert witness. SCR-Civil Rule 26(f)(1)(B). See Daniels v. Beeks, 532 A.2d 125 (D.C. 1987) (finding an abuse of discretion where the trial court denied a party’s request to supplement a pretrial statement with an expert witness). When address- ing incomplete pretrial statements on expert testimony, D.C. courts consider two competing factors in their determination of admissibility—first, whether the opposing party will be prejudiced by the delay and, second, whether the party in error acted willfully. See Regional Redevelopment Corp. v. Hoke, 547 A.2d 1006 (D.C. 1988). Other factors also may be considered, including the effects of inclusion on trial orderliness and the value of the testimony to the jury’s deliberation. The leading pronouncement on the multifactor decision process for admitting expert evidence omitted from pretrial statements can be found in Weiner v. Kneller, 557 A.2d 1306 (D.C. 1989). In Weiner, the plaintiff offered an expert witness to refute the contention that the decedent’s condition had been incurable, rendering moot the argument that medical malpractice led to her death. Id. at 1308. The defense was advised of this witness through oral disclosure, but without the filing of a supplementary statement, as required by SCR-Civil Rules 26(b)(4) and 26(f)(1)(B). Id. In consider- ing whether the trial court properly excluded this testimony, the Weiner court laid out the following five-factor test for determining whether to include the expert testimony:

(1) whether allowing the evidence would incurably surprise or prejudice the opposing party, (2) whether excluding the evidence would incurably prejudice the party seeking to introduce it, (3) whether the party seeking to introduce the testimony failed to comply with the evidentiary rules inadvertently or willfully, (4) the impact of allowing the proposed testimony on the orderliness and efficiency of the trial, and (5) the impact of excluding the proposed testimony on the completeness of information before the court or jury.

Id. at 1311–12. While noting that the appellants had the burden of proving a preponderance of these factors, the court still found the testimony improperly excluded. Because there was no surprise or prejudice attendant to the new testimony, and the evidence was important to the appellant’s case, the court ruled that the testimony should have been admitted. Id. at 1312. While facts known and opinions held by testifying experts are broadly available by discovery, nontestifying experts will not be subject to discovery as a general rule. Rule 26(b)(4)(B) provides in pertinent part that such facts and opinions are available only “as provided in Rule 35(b) [address- ing physical and mental examinations of a person] or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.” SCR-Civil Rule 26(b)(4)(B). As a matter of convenience, expert testimony need not be presented on the stand. D.C. has promulgated SCR-Civil Rule 32(a)(4), which permits a videotaped of any expert witness (including a treating or consulting physician) to be used for any purpose, even though the expert is able to testify. SCR-Civil Rule 32(a)(4). Rule 32(a)(4) requires “notice” to be given that the deposi- tion videotape will be used at trial. The rule also carves out an exception, permitting the court to limit the videotaped deposition’s use “for good cause shown.” 458 Scientific Evidence Review

D.C. has promulgated Rule 28 of the Superior Court Rules of (“SCR- Criminal Procedure”) to authorize courts to appoint expert witnesses. There is not a corresponding civil rule for the appointment of experts, but it is widely recognized that trial courts are vested with the power to appoint experts in appropriate situations. See In re Eric L. Cummings, 471 A.2d 254, 257 (1984). When addressing the issue of expert witness fees, practitioners should refer to SCR-Civil Rule 26(b)(4)(C) which explains that, apart from exceptional cases of manifest injustice:

(i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (b)(4)(A)(ii) and (b)(4)(B) of this rule; and (ii) with respect to discovery obtained under subdivision (b)(4)(A)(ii) of this rule the court may require, and with respect to discovery obtained under subdivision (b)(4)(B) of this rule the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.

SCR-Civil Rule 26(b)(4)(C). If a witness must be subpoenaed, practitioners should refer to SCR-Civil Rule 45, which explains that the party demanding the subpoena should take reasonable steps to prevent any undue burden falling on the witness, SCR-Civil Rule 45(c)(1), and that, for unretained experts, the court may modify, quash, or limit the subpoena. SCR-Civil Rule 45(c)(3)(B). Costs attendant to obtain- ing expert witnesses may be awarded to the prevailing party. Rule 54(d)(1) explains: “Except when express provision therefor is made either in an applicable or in these Rules, costs other than attorneys’ fees shall be allowed as of course to the prevailing party unless the court otherwise directs.” And finally, D.C. Code § 11-2605 makes a specific ascription to indigent defendants, entitling them to expert assistance whenever an adequate defense so necessitates. See Jackson v. United States, 768 A.2d 580, 587 (D.C. 2001) (explaining that a reasonableness standard is used to assess indigents’ requests for expert assistance).