The Effects of the Daubert Trilogy in Delaware Superior Court

EXECUTIVE SUMMARY Introduction increasing popularity of DNA evi- Although scientific knowledge is dence, that it is creeping into crimi- extraordinarily valuable as it assists nal cases as well. Certainly, the re- the trier of fact to make an informed, action immediately after the legal decision, courts continue to Daubert decision raised concerns struggle with admissibility deci- about the increased role of the judge sions that evaluate such evidence. to scrutinize experts and how the Judges must differentiate relevant factors would be applied. and reliable experts from the so- called “hired guns” motivated by This study, conducted by the NCSC, money alone, and such decisions assessed the feasibility of collect- have significant consequences. ing data to understand if, and how, Nicole L. Waters, Ph.D. Daubert has altered the admission National Center for State Just over a decade ago, the judge’s or exclusion of expert testimony. Courts role in determining the admissibil- With the cooperation of Delaware’s Project Director ity of experts was redefined as a Superior Court judges, attorneys, Jessica P Hodge, M.S. University of Delaware Project Staff “No one will deny that the law should in some way effectively use expert knowledge wherever it will aid in settling disputes. The only question is as to how it can do so best.” - Learned Hand, 19011

“gatekeeper” in the U.S. Supreme and prothonotary staff, the authors Court decision, Daubert.2 Daubert pilot-tested a review of both civil is one in a trilogy of decisions rul- and criminal court files supple- ing on the admissibility of expert mented with interviews of targeted witness testimony. attorneys and judges.

With the advent of the changes aris- ing out of the Daubert trilogy, a handful of empirical studies have explored whether Daubert and its progeny have had any impact on the admissibility of expert testimony. 1 Learned Hand, Historical and Practical Thus far, legal commentators have Considerations Regarding Expert Testimony, 15 primarily targeted discussions of HARV. L. REV. 40, 40 (1901), cited in Minner v. American Mortgage, 791 A.2d 826, 833. Daubert in the civil arena, but there 2 Daubert v. Merrell Dow Pharmaceuticals, Inc., are indications, particularly with the No. 92, 509 U.S. 579 LEXIS (1993). Legal History on the sive factors for judges to consider Admissibility of in determining admissibility: Expert Witness ƒ Has the theory or technique The Trilogy Testimony been tested (falsifiability)? ƒ Is there a known or potential Commercial Marketplace Test error rate? The “trilogy” is comprised In the early 1900’s, courts deter- ƒ Has it been subjected to peer of three U.S. Supreme Court cases. mined expertise by assessing review and published? whether there was a commercial ƒ Is it generally accepted within 3 Daubert (1993) is the first, market for the proffered knowledge. the field (i.e., the Frye test)? in a series of three decisions by the U.S. Supreme Court If an expert was able to earn a liv- that, together, comprise the ing by espousing the said knowl- Delaware is one of only nine states Daubert trilogy. edge, the witness was decidedly an that has “explicitly or implicitly Joiner4 (1997), the second expert.6 adopted the full holdings of the decision in the trilogy, fur- Daubert trilogy.”7 This project ex- ther clarified the appropri- plored if, and how, the Daubert tril- ate standard of review for Frye (1923) appellate courts to apply, ogy has altered the ways in which This is also known as the “general since the admissibility de- courts admit or exclude expert wit- cision may be “outcome- acceptance rule” or the “Frye test.” ness testimony and in what ways it determinative” and effec- Although it was the predominant tively render the outcome has impacted the Delaware Superior standard for evaluating the admis- of a case (e.g., a summary Courts, judges, and litigants. A sec- judgment in favor of the sibility of expert testimony for 70 defense by excluding the ond goal was to assess how best to years in federal courts, and is still plaintiff’s only expert). study the impact by identifying the in place today in several state 5 occurrence of Daubert motions and Kuhmo (1999) completes courts, it has been criticized for sev- the trilogy and ruled that hearings in court records and evalu- eral reasons: the “gatekeeping” function ating the quality of the available in Daubert applies to all ex- ƒ It did not specify the scope of data. pert testimony, including the “particular field in which it be- technical and other special- ized knowledge. longs.” ƒ Obtaining agreement of scien- tists within the same field is diffi- cult; scientists have been famous for disagreements among themselves, giving rise to the image of the “bat- tling experts.” ƒ Frye is prohibitively conserva- tive with regard to novel scientific evidence. For example, in its in- fancy, even DNA evidence would have been excluded by courts un- der the Frye test.

Daubert (1993) The most notable change in prac- tice under Daubert was clarifying the judge’s role as the “gatekeeper.”

6 Michael J. Saks, Merlin and Solomon: Lessons from 3 Id. The decision requires the judge to the Law’s Formative Encounters with Forensic 4 General Electric Co. v. Joiner, take on a more active role to effec- Identificiation Science, 49 HASTINGS L. J. 1069 (1997- 522 S. 136, 118 S. Ct. 512, 139 L. 1998) at 1073. Ed. 2d 508 (1997). tively screen the expert opinion 5 Kuhmo Tire, Ltd. v. Charmichael, 7 David E. Bernstein & Jeffrey D. Jackson, The 526 U.S. 137, 119 S. Ct. 1167, prior to submitting it to the jury. Daubert Trilogy in the States, 44 JURIMETRICS J. 1-17 143 L. Ed. 238 (1999). The Court provided four, non-exclu- (Winter, 2004). Findings In post-Daubert cases, more so than The overall impact of Daubert has in the pre-Daubert cases, the dis- been minimal compared to what positions often resulted in a sum- was originally feared when the de- mary judgment or a settlement be- Methodology cision came down from the U.S. tween parties, not a trial. Factors Supreme Court. Challenges to ex- such as effective pre-trial case man- agement or the increased use of al- pert witness testimony are not a fre- Two approaches were em- quent occurrence in either civil or ternative dispute resolution tech- ployed to study Daubert’s criminal cases in the Delaware Su- niques may have affected this out- impact. First, a sample of cases from two time peri- perior Court. Overall, counsel in come more than the impact of the ods (1989-1993; 1999- only 16 percent of product liability Daubert trilogy alone. 2004) was reviewed. cases and 8 percent of felony mur- ƒ 120 felony rape and der and rape cases challenge an As such, case management strate- murder cases expert’s testimony. The practice of gies become critical to properly ƒ 126 product liability holding Daubert hearings is even address Daubert issues and present cases less frequent. Daubert motions ap- unnecessary cost and delay. The Based on the case file re- peared most frequently in mature Delaware Superior Court adheres to view, local attorneys were identified who had experi- cases ready for trial, and judges the Delaware case, Minner v. ence with Daubert motions typically rendered a ruling on the American Mortgage, which empha- and/or hearings. Inter- expert’s deposition and attorneys’ sized the importance of effective views with 13 of Delaware’s 19 judges and 20 of the 38 briefs. Daubert hearings were re- pre-trial case management and a targeted attorneys supple- served for complex civil cases and reliance upon the discovery record mented the case file data. occasionally entertained during a as a basis for ruling: criminal trial. “[I]f [a Daubert hearing Most often, in the product liability is] granted in every case, cases, the challenged expertise was [it] could cripple the trial to explain bio-mechanical engineer- calendar. While the mat- ing concepts by duo-experts (medi- ter is always discretionary, cal doctors teamed with mechani- absent a special reason and cal engineers). In the criminal need to have the hearings, cases, the expertise was more var- requests for them should ied, but included psychologists, generally be denied. The medical examiners, and a handful discovery record should, in of other forensic experts. The case a contested case, normally facts obviously predicted the nature supply a satisfactory basis of the expertise. for a ruling.”8

The Court rendered varied rulings Civil defense attorneys, by and on the motions in limine. Typically, large, filed the majority of motions the ruling was not categorically to challenge expert testimony. The granted or denied, but often the differential impact of these motions motion was granted in part and de- was realized most by civil plaintiffs, nied in part. Partial exclusions by due to the potential dispositive na- the Court were in response to attor- ture of the motion against a lone neys’ motions which were not al- ways drafted to exclude an expert, but drafted to limit the scope of the proffered testimony. 8 Minner v. American Mortgage & Guaranty Co,. 791 A.2d 826, at 845. expert. On the other hand, the Dela- take on an active role. In pre- ware Attorney Generals’ office pro- Daubert times, judges would let ad- ceeded with several cases even af- missibility or credibility issues be ter a successful Daubert motion, in- sorted out through cross-examina- dicating that the excluded expert tion during trial. A judge admitted evidence was not the sole evidence during the interviews, against the criminal defendant and therefore, less consequential. “Now, the Court has an independent duty to be Daubert has had an impact on how gatekeeper, even if there attorneys prepare a motion in limine is no opposition from the and the specific factors argued in the other side. The Court has motions. Because of the schedul- the responsibility to make ing orders in place by most judges, sure the expert does not filing Daubert motions requires get in, if not qualified.” more extensive preparation on the part of the attorneys. Daubert cri- teria necessitate higher quality ex- Albeit some judges are more active perts and expert reports. In pre- than others, most judges in Dela- Daubert times, counsel motioned ware actively participated in the the courts to exclude the opposing voir dire of the expert witness. party’s expert on grounds of rel- Daubert has bestowed upon trial evancy, or questioned the expert’s judges the responsibility to render qualifications or expertise; in post- admissibility decisions. It is a great Daubert times, counsel presented responsibility that is not necessar- the issues with more specificity. In- ily carried out in a similar manner deed, the attorneys often cited by the judges, yet appeared to be Daubert, yet addressed the general taken very seriously by the Dela- acceptance factor and generally ware bench. Apropos, one judge questioned the reliability of the stated, expert’s methods. Funding provided by: Daubert motions are used effec- “I ask questions of the Scientific Knowledge and tively as leverage in civil disputes. expert because I’m the Public Policy (SKAPP) www.DefendingScience.org In particular, defense attorneys scru- gatekeeper and must tinize plaintiffs’ proffered expert be satisfied.” witnesses. If a Daubert motion is A copy of the full report granted and excludes a key or sole and additional resources plaintiff expert, the defense will on science and the law is available on the likely be granted a summary mo- NCSC website: tion, demonstrating the large incen- www.ncsconline.org/ tive for the defense to artfully craft D_Research/ RES_DAUBERT_ a Daubert motion to potentially SciTechLawinfo.pdf avoid a trial. As such, the pre-trial phase is of primary interest to un- derstanding the impact of Daubert at the trial court level.

Although most judges admitted they were not “amateur scientists,” Daubert certainly required them to