Trial Practice: Experts and the Gatekeepers Is the Gate Open Wider or Swinging Closed? Our Courts have been challenged by evolving scientific studies and results, which litigants choose to present as evidence of the validity of their experts' respective opinions. The propriety of expert testimony is subject to preliminary review by the trial judge, whose role is to determine whether the expert's testimony is admissible under Rule 702. Here lies the inevitable battle, drawn by the U.S. Supreme Court's interpretation of Rule 702 in three significant cases1 expert testimony is admissible once the trial court finds: (1) it is based on a reliable foundation, and (2) it is relevant. The defense bar has prematurely celebrated the Court's ruling in Kuhmo Tire, when, in truth the Court held that the trial judge's analysis is flexible focusing on the expert's methodology, and not the conclusions. Thus, despite the "spin" sounding the death knoll for experts, Courts have been quick to observe that Rule 702 was intended to liberalize the introduction of relevant expert evidence not exclude it. This article is intended to clear-out the maze created by variability in reported cases and in arguments raised by litigants objecting to expert opinion testimony. While the current defense trend is to seek evidentiary hearings to challenge every plaintiff's experts, the Supreme Court had frowned upon this process. In Kuhmo Tire, the United States Supreme Court made clear that the trial court has discretion to avoid "reliability proceedings" altogether where the expert is qualified and the reliability of the expert's opinions are clear, noting that the Rules seek to avoid "unjustifiable expense and delay as part of their search for the truth." Even before Kuhmo Tire, in Daubert v. Merell Dow Pharaceuticals, Inc., the Supreme Court abandoned the "rigid standard" used by some courts to judge the propriety of expert opinions and decided that such proffered testimony must be evaluated by the more liberal "flexible" construction intended by Rule 702. In applying the liberal standard set forth in Rule 702, Courts have traditionally held that "doubts about whether an expert's testimony will be useful should generally be resolved in favor of admissibility." In Daubert, the Court ruled that it is the function of the trial court to ensure that any and all scientific testimony or evidence admitted is not only relevant but reliable. The trial court must determine whether the expert is proposing to testify to: (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid. Since Daubert, courts have applied its holding in assorted ways to address some seemingly unrelated issues, such as: (1) qualifications; (2) relevancy; (3) reliability9; and (4) scope of useable expert data. The United States Second Circuit Court of Appeals recently noted that the Daubert test is generally one of inclusions rather then exclusion: "Daubert granted the trial judge discretion and authority to determine whether scientific evidence is trustworthy, even if the technique involved has not yet won general scientific acclaim.. (Daubert) explained that Rule 702 and 104(a) require 'a preliminary assessment of whether the reasoning or methodology... is scientifically valid... General acceptance... is no longer determinative." Having summarized the liberal application of the trial judge's "gatekeeper" function , the court then addresses the defendant's Daubert defense argument: "... Fuller's Daubert contention that Wooley's testimony lacked and grounding in science... is meritless. Woolley based his opinion on ... academic and practical experience: examination of various materials and educational sources... review of Fuller's MSDS, (witness) interviews... background industrial experience... and practical experience with fumes." Those seeking wholesale exclusion of expert testimony cannot find any satisfaction in Supreme Court's extension of Daubert in Kuhmo case. The Court in Kumho rejected the Petitioners request to construe the Daubert factors (testing, peer review, error rate and general acceptance) as inflexible requirements in every type of case. Instead, the Court held that the Daubert factors are (1) flexible and (2) do not constitute a definitive checklist. The Court expressly noted that the "gate-keeping inquiry must be 'tied to the facts' of a particular case", and the trial judge can (and should in particular cases) adopt and apply the criteria for reliability ordinarily employed by experts in the pertinent field. The Court noted that the objective of the gate-keeping requirement (to ensure the reliability and relevance of expert testimony) may be achieved when the expert "employs in the courtroom the same level of intellectual vigor that characterizes the practice of an expert in the relevant filed. The Court twice noted that concerns for reliability may indeed be satisfied when the expert bases his opinion on his "personal knowledge and experience". Albeit this observation holds true only when justified under "the particular circumstances of a particular case", the circumstances that exist in litigation involving a defect in a mechanical product viz, testimony of an engineer based on physics and math) certainly justify the application of this observation. Finally, (and of great importance) the Court noted that the need for a trial judge to exercise its discretion to establish a standard for evidentiary reliability arises only when the bases of the expert's testimony is "called sufficiently into question". And where such testimony's factual basis, data, principles, methods, or their application are called sufficiently into question, (see Part II, infra,) the trial judge must determine whether the testimony has "a reliable basis in the knowledge and experience of (the relevant discipline." This puts the burden on the defendant manufacturer to show the court that the reliability of the plaintiff's expert opinion testimony is truly in doubt. This is a heavy burden. It cannot be discharged by the conclusory assertions of defense counsel. The opinion in Kumho sets the standard and gives an example of what it takes to call the reliability of an expert's opinion into question. Immediately following the phrase "called sufficiently into question", the Court refers the reader to Part III of its opinion wherein the Court Analyzes and details the deficiencies in the basis of the opinion of the expert whose testimony was the subject of the Kumho case. Placing the burden of going forward (raising the issue) and the ultimate burden of persuasion (burden of proof) to exclude an expert on the objecting or challenging party is logical. Federal Rules 702 and 403 are written in terms of a presumption of admissibility. The Rules of Evidence embody a strong and undeniable preference for admitting any evidence which has the potential for assisting the trier of fact. Rule 702, which governs the admissibility of expert testimony, has a liberal policy of admission. The faith in the ability of juries is itself premised upon the assumption that our adversary system usually is capable of revealing and making understandable trustworthiness problems that are not otherwise obvious to a layperson. This assumption is central to the rules regulation expert witness testimony. Because proffered expert testimony is presumed to be admissible, the burden of proof logically falls on the objecting party to prove that the expert is "unreliable," within the meaning of Fed. R. Evid. 702 and Daubert and its progeny. A logical judicial approach to any challenge to expert testimony is the following: Step One: Burden on the Party that Proffers the Testimony Threshold showing:
Step Two: Burden on the Objecting Party
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