Chapter 3 - Key Cases and Precedents Affecting Expert Witnessing

Why did the court reject the toxicological evidence and dismiss the plaintiffs' case on summary judgment in Daubert v. Merrell Dow Pharmaceuticals?

The defense argued that the reanalysis of statistical data had not been published or subjected to peer review and , therefore, was not generally accepted by the scientific community.

Explain Daubert v. Merrell Dow Pharmaceuticals (1993)?

The plaintiffs claimed that their infants' birth defects were the result of the mothers ingesting Bendectin, a drug manufactured by Merrell Dow, to combat the symptoms of morning sickness. The plaintiff's attorneys presented the testimony of 8 experts who claimed that Bendectin did cause birth defects, in spite of more than 30 published studies (at the time) that indicated the drug did not cause birth defects in unborn babies.

What was the outcome of Frye V. US (1923)?

Established the admissibility of scientific evidence through the use of the "general acceptance" test and opened the door for the use of expert witnesses throughout the US court system.

During the 18 year interim, which rules were used as loose parameters for governing the admission of scientific and technical evidence in court? Give example.

- Federal Rules of Evidence - Rule 701 and 702, and some courts still continued to rely on Frye. - 15,000 Vietnam War veterans who had been exposed to the chemical defoliant Agent Orange were assimilating a relationship between Agent Orange and the medical symptoms and maladies they were experiencing. - The scientific data used to demonstrate the affects of Agent Orange were toxicological studies conducted on animals, not humans. - The judge ruled that the results of the animals and toxicological studies were inadmissible as evidence because the science did not meet the minimum standards of reliability.

Explain Carmichael v. Kumho Tire Company (1998)

- The Ford minivan driven by the plaintiff blew a rear tire on Interstate 65 in Baldwin County, Alabama. As a result of the blowout, the minivan overturned, killing one passenger and injuring seven. - The suit alleged that the accident was the result of a manufacturing and/or design defect. - A tire failure analyst was hired by the plaintiff to provide expert testimony to support his claim. - The defendant, Kumho Tire Co., requested that the testimony be excluded arguing that it did not meet the FRE 702 requirement that a qualified expert witness can testify in the form of an opinion of scientific, technical, or other specialized knowledge only if the testimony will assist the trier of fact. - They also asserted that the four Daubert factors - testing, peer review, error rates, and acceptability in the relevant community was not identified in testimony - The Court sided with the defense

What was the outcome of Electric v. Joiner (1997)

- The judge held that the scientific testimony in support of the plaintiff's claim was not admissible because it failed to show the relationship between PCBs and lung cancer, in what the court referred to as an "analytical gap". - The plaintiff's case was dismissed on summary judgment. - On appeal, the Circuit Court reversed the decision. The Court reasoned that because the FRE favor the admissibility of evidence, a decision to exclude testimony should be reviewed on a stricter standard than that governing a decision to admit testimony. - The SC reversed, holding that "abuse of discretion" is the correct standard for reviewing a trial court's decision to admit or exclude an expert's testimony. - The SC itself examined the record an found that the trial court had not abused its discretion by excluding the expert's testimony . - The trail court's decision was upheld

What year were the Federal Rules of Evidence adopted?

1973

Carmichael v. Kumho Tire Company was significant because it clarified 3 key challenges facing judges in ruling o n the admissibility of expert testimony under Daubert, what are they?

1. The court reiterated that it is the responsibility of the jury - not the judge - to assess and evaluate different and conflicting expert testimony, even in areas where the basis of the evidence may be in question. 2. This case clearly established that the four Daubert factors do not constitute a definitive checklist for evaluating the reliability and relevance of expert testimony, but rather serve as a guide in such determinations. 3. Addressed concerns for potential abuse of Daubert by defendants demanding a full-blown hearing without a sufficient reason such as expert testimony or scientific literature that shows some evidence of unreliability beyond just a bare objection by counsel.

The "general acceptance" standard ensured what 3 things?

1. The reliability of evidence based on established science 2. Promoted uniformity of decisions 3. expedited the trial process by reducing the arguments concerning the admissibility and reliability of testimony

The ruling of the Veterans and Agent Orange foreshadowed reforms in the law concerning scientific evidence and expert testimony, triggered primarily by two factors...?

1. The restrictiveness of the Frye Test 2. The need to ensure that scientific evidence admitted in court was reliable and relevant, even if not "generally accepted"

The Supreme Court in the appeal of Daubert v. Merrell Dow Pharmaceuticals held that the gatekeeping function of the judge required a case by case evaluation of the admissibility of an expert's testimony. The Court identified 4 factors that courts should use to determine the reliability of scientific expert opinions. Name these 4 factors and the name given to them.

1. The science can and had been tested 2. The science has been subjected to peer review and publication 3. The known or potential error rate of the science 4. The general acceptance of the science in the relevant scientific community. The Daubert Test

Although the Frye Test was rejected with the Rules of Evidence were adopted, it was another____________ years before the US Supreme Court squarely address what standard governed the admission of scientific and technical evidence in court.

18

What is Rule 801 (c) of the Federal Rules of Evidence?

A definition of hearsay as a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Explain General Electric v. Joiner (1997)

An electrician working for General Electric claimed that he had developed lung cancer as a result of being exposed to a toxic chemical (PCB).

What is Rule 803 of the Federal Rules of Evidence?

Applies to expert witnesses. It lines out 24 exceptions that allow hearsay evidence to be admitted.

Which three cases make up the Daubert Trilogy?

Daubert v. Dow Merrell Pharmaceuticals (1993) General Electric v. Joiner (1997) Carmichael v. Kumho Tire Company (1998)

In 1993, the US Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, one of the most influential cases to set the standard for the admission of scientific evidence in light of the ____________?

Federal Rules of Evidence

Then, in 1923, the US Circuit Court of Appeals for the District of Columbia Circuit issued a landmark decision that defined the basic prerequisite for admitting scientific evidence and, thus, testimony by expert witnesses. This landmark case was ... ?

Frye v. United States (1923)

What was the benefit of Carmichael v. Kumho Tire Company from the perspective of trial lawyers?

It helped clarify the preparation necessary to meet the threshold requirement for determining the reliability of an expert witness but did not provide a "bright line" for admissibility.

In what aspect did the Frye outcome fall short?

It left no room for new, emerging, or novel scientific theories that might support a party's claim.

What is Rule 802 of the Federal Rules of Evidence?

It provides that hearsay is generally inadmissible.

What is the Frye Test?

Requires the trial court to consider two factors before admitting expert testimony. 1. The court must identify the witness's expertise in a specific field of science. 2. The court must determine whether the methods, theories, and conclusions of the expert meet the "general acceptance" standard.

In Frye, the defendant was accused of what offense and what type of testimony did he try to use to prove his case?

Second-degree murder; The defense attorney offered the testimony of an expert witness to administer and interpret the results of a polygraph test.

Though expert witnesses have been used for centuries Europe, they were rare in the US until ... ?

The 1920s

What was wrong with the Judges' ruling in the case of the Veterans and Agent Orange?

The Judge made an independent assessment of the reliability of the proffered scientific evidence, rather than relying solely on whether the methodologies used and conclusions drawn by the experts were "generally accepted" in the scientific community.

What did the Federal Rules of Evidence refuse to incorporate?

The Rules Committee declined to incorporate the Frye Test in the rule governing the admissibility of expert testimony. (side note... approx. 1/2 the states continues to apply the Frye Test to determine whether to admit the testimony of an expert witness in a scientific or technical field anyhow.)

What happened as a result of the ruling in Daubert v. Merrell Dow Pharmaceuticals?

The Supreme Court, for the first time, rejected Frye as the sole standard for the admissibility of scientific evidence. Noting the passage of the Federal Rules of Evidence, the Court held that it was within the purview of trial judges to exercise their discretion in admitting expert testimony; trial courts were, in effect, "gatekeepers" for such admissions.