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DAUBERT by Kevin P DAUBERT By Kevin P. Moriarty I. Introduction From 1923 until 1993, the federal courts determined the admissibility of expert witness testimony by applying a “general acceptance” test, stemming from Frye v. United States.1 For nearly a century, the Frye standard required an expert’s testimony had to be based on a theory or method that was “generally accepted” in the scientific community in order to be admissible in the federal courts. However, as the Frye standard stood the test of time, it began to show its weaknesses as science rapidly advanced in the 20th century, as it could potentially defeat a case on technical grounds. The general acceptance test is constraining and too general. It places an undue reliance on the approval of a technique or method by a community of sciences and not upon the reliability and relevance of a scientific issue. Daubert sought to make admitting expert testimony less restrictive by determining admissibility on relevance and reliability New scientific techniques and methods are more easily admitted under Daubert and its progeny. II. The Daubert Trilogy In Daubert, the United States Supreme Court held that a trail judge has a duty to scrutinize evidence more rigorously to determine if it meets the requirements of FRE 702, that is, is the expert’s opinion the product of reliable principles and methods. It focuses on using a reliable methodology by an expert to indicate that the overall testimony of that expert is reliable. Daubert is, however, not concerned with: Expert qualifications; The sufficiency of the facts or the data relied upon by the expert; or The application of the expert’s methodology to the facts of the case. The petitioners in Daubert sought review of the lower court’s decision to exclude an expert’s testimony that the drug Benedictin could cause birth defects. The trial court granted summary judgment and the Ninth Circuit Court of Appeals affirmed. The plaintiff-petitioners’ experts had not conducted any studies to support their testimony, but instead relied on studies conducted by other scientists, none of whom had found conclusive connection between the drug and birth defects. The experts’ opinions also did not reflect the “general scientific opinion” in the community regarding the relationship between Benedictin and birth defects. Only one of the petitioner’s experts had conducted original research, but he did not explain his methodology used in his research. The Supreme Court vacated the Ninth Circuit’s decision and remanded, holding that this expert’s testimony could be admitted even if it was not “generally accepted”, as long as the evidence could be shown to be both reliable and relevant to the facts of the case. In Daubert, the Court stated that evidence based on new or unusual scientific knowledge may be admitted only after ti has been established that the evidence is reliable and scientifically valid. The Court imposed upon the Federal district courts a duty to act as “gatekeepers”, charging them to prevent scientific claims supported by junk data out of the courtroom, away from the finder 1 292 F. 1013 (ID.C. Cir. 1923). of fact. To assist the district court judges in their new gatekeeping duty, the Court outlined four factors to consider when determining admissibility: Can the evidence be empirically tested? Can it be refuted? Has the theory or technique about which the expert will testify been subjected to peer review or publication? What is the known or probable error rate of the method or technique used by the expert witness? Has the theory or technique gained general acceptance in the relevant academic community? The Court expected this test to be applied in a flexible manner with the particular facts of the case in mind. To that end, these four factors are not a definitive litmus test for admissibility. The Supreme Court implicitly restricted the Daubert factors to expert testimony based on scientific theories or methods. Six years later, the Court expanded the use of the Daubert factors to evaluate non-scientific experts in Kumho Tire, Co. Ltd. V. Carmichael, 526 U.S. 137 (1999). In Kumho Tire, plaintiffs sued the tire manufacturer in a products liability action after a blown tire on a minivan resulted in death and injuries. The survivors and decedent’s representative moved to admit testimony of Dennis Carlson, an expert in tire failure analysis, who offered to testify that a defect in the tire caused it to fail. Carlson based his opinion on a visual and physical examination of the tire. He proposed a theory that because the tire did not show any signs of user abuse, then the defect must have been within the tire itself. The Supreme Court excluded Carlson’s testimony because his methodology regarding the tire at issue was unreliable. The Court found that Carlson’s methodology as applied to the facts of the case was questionable. Also, the Court found that none of the Daubert factors indicated that the expert’s testimony was reliable. Even though Carlson claimed that his methodology as applied to the facts of the case was reliable, the Court noted that it is not required to accept the expert’s proffer of reliability at face value.2 The Court also reaffirmed the rule of Daubert that the test is to “make certain that an expert, whether basing testimony on professional studies or personal experience, employs in the court room the same level of intellectual rigor that characterizes the practice of an expert in the field.”3 FRE 702 was amended in 2000 to reflect the holdings of Daubert and its progeny: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” 2 Kumho Tire Co., 526 U.S. at 146. 3 Id. at 152. Since Kumho Tire, the federal appellate courts have held that the Daubert principles apply to accountants, economics experts, and financial experts.4 In some ways, Kumho Tire exposes some weaknesses of the Daubert factors, in that the four factors are based off of the scientific method for hard sciences. Following Kumho Tire, many courts look at the Daubert factors as mere suggestions in determining the reliability of an expert’s theories or techniques. The third case in the Daubert trilogy is General Electric v. Joiner, 522 U.S. 136 (1997), where the Supreme Court reaffirmed the lower court’s role as “gatekeeper” when determining whether or not to allow an expert to testify, and held that the appropriate standard of review for Daubert decisions whether the district court abused its discretion. III. The Daubert Standard in Kansas A. The Statute The Daubert standard is very new in Kansas. In 2014, Kansas amended KSA 60-456(b) to adopt the Daubert Standard: “If scientific, technical, or specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue, a witness who is qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise if: (1) The testimony is based on sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness has reliably applied the principles and methods to the facts of the case.” B. The Single Daubert Case in Kansas Recently, the Kansas Court of Appeals applied Daubert for the first time in Smart v. BNSF Ry. Co., No. 113,809, 2016 WL 852135 (Kan. Ct. App. 2016). This case arose from a cause of action under the Federal Employers Liability Act. The plaintiff worked for BNSF railway for many years as an electrician. The plaintiff alleged that his working conditions at BSNF caused extensive injuries over time, permanently affecting his muscles, discs, and soft tissues in his neck and arms. Smart planned to call Dr. Tyler Kress as an expert in engineering and ergonomics. After Dr. Kress was deposed, BNSF moved to strike Dr. Kress’s deposition from the record, as well as the causation testimony of Smart’s other physicians. The Court granted the motion, finding that Dr. Kress’s “testimony is so generic that it could apply to almost any worker, in any position, anywhere dealing with a railroad.” When the District Court granted BNSF’s motion to strike, Kansas still applied the Frye standard. After the district court’s decision, the Kansas Legislature amended K.S.A. 60 -456(b) to include the Daubert standard. Thereafter, the District Court granted summary judgment for BNSF, 4 Club Car, Inc. v. Club Car Import, Inc., 362 F.3d 775, 780 (11th Cir. 2004); Lifewise Master Funding v. Telebank, 374 F.3d 971, 979 (10th Cir. 2004); Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768, 793 (6th Cir. 2002). but did not mention the newly adopted Daubert standard. Because the District Court’s ruling to exclude Dr. Kress’s testimony was a pre-trial motion, Daubert was the proper standard to analyze the admissibility of evidence at the time of the summary judgement ruling. First, the Court of Appeals analyzed whether the District Court acted as gatekeeper when deciding to admit or omit expert testimony. The Court found that the lower court did, in fact, act as gatekeeper though reading the briefs on the motion to strike, holding a hearing, and ruling on the reliability of the challenged evidence.
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