Amicus Curiae Brief — Kumho Tire Co. v. Carmichael

Supreme Court, U.S.

FILED

~ No. 97-1709 —/

In The AUG 24 1998

Supreme Court of the United States,

October Term, 1997

_I

S

KUMHO TIRE COMPANY, LTD., KUMHO U.S.A., INC.,

AND HERCULES TIRE & RUBBER COMPANY, INC.,

y. Petitioners,

PATRICK CARMICHAEL, AN INDIVIDUAL, FATHER AND

NEXT OF KIN TO PATRICK CARMICHAEL, JR., A MINOR,

LUZVIMINDA CARMICHAEL, AN INDIVIDUAL, MOTHER

AND NEXT OF KIN TO CARINA HORN, A MINOR, AND

ADMINISTRATRIX OF THE ESTATE OF JANICE CARMICHAEL,

SHAMEELA CARMICHAEL, NATIMAH CARMICHAEL,

Respondents.

6

On Writ Of Certiorari To The United States

Court Of Appeals For The Eleventh Circuit

o

BRIEF OF AMICI CURIAE, THE PRODUCT

LIABILITY ADVISORY COUNCIL, INC.,

THE CHEMICAL MANUFACTURERS ASSOCIATION,

THE CHAMBER OF COMMERCE OF THE UNITED STATES,

AND MEDMARC, IN SUPPORT OF PETITIONERS

«

Hucu F. Youna, Jr.* Mary A. Wetts

Propuct Liasiurry Apvisory Counsel of Record

Councit, INc. L. Micuaet Brooks, Jr.

1850 Centennial Park Drive, Weis, ANDERSON & Race LLC

Suite 510 1700 Broadway, Suite 1850

Reston, VA 22091 Denver, CO 80290

(703) 264-5300 (303) 830-1212

Daviw F. Zou" Kevin Quintey*

Donavp D. Evans* GENERAL COUNSEL

CHEMICAL MANUFACTURERS MEDMARC

ASSOCIATION 4000 Legato Road, Suite 800

1300 Wilson Boulevard Fairfax, VA 22033

Arlington, VA 22209 (703) 273-1995

(703) 741-5000

Rosin S. Conrap*

NATIONAL CHAMBER LITIGATION

Center, INc.

1615 “H” Street NW

Washington, D.C. 20062

(202) 463-5337

* Of Counsel

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831 | ) 4

K\ |

TABLE OF CONTENTS

Fed. R. Evid. 702 Requires Trial Courts to Exercise

Their Gatekeeper Function Under Daubert to Deter-

mine the Relevance and Reliability of Al/ Proffered

Expert Evidence

A. The Plain Language of Rule 702 Requires that

the Words “Scientific, Technical, or Other Spe-

cialized Knowledge” be Read Together to Pro-

vide a Single Standard for the Admissibility of

All Expert Testimony

An Expert’s Training and Experience are Insuf-

ficient to Establish that the Proffered Testimony

is Reliable

The Question Whether Expert Evidence Can

“Assist the Trier of Fact” Is Dependant Upon

the Reliability of the Expert’s Proffered Testi-

Daubert Provides an Objective Approach for Deter-

mining the Reliability of All Expert Testimony... .

A. The Daubert Factors: Ensuring That Expert Tes-

timony Rests on an Objective, Reliable Founda-

The Application of the Daubert Factors to All

Types of Expert Testimony is Consistent With

This Court’s Approach to Scientific, Technical,

and Specialized Knowledge in a Variety of Con-

6

TABLE OF CONTENTS ~— Continued

Page

C. The Daubert Factors Represent a Flexible

Inquiry Committed to the Sound Discretion of

the Trial Court, Not a Definitive Checklist or

DRT RE LL nine Wi besaw ede ob 6c vee tee a 29

TABLE OF AUTHORITIES

Page

Cases

Ake v. Oklahoma, 470 U.S. 68 (1985).................. 4

Barefoot v. Estelle, 463 U.S. 880 (1983)............... 28

Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988) ...6, 7

Berry v. City of Detroit, 25 F.3d 1342 (6th Cir. 1994) .... 19

Bragdon v. Abbott, 118 S.Ct. 2196 (1998) .......... 24, 25

Burford v. Sun Oil Co., 319 U.S. 315 (1943) ........... 9

Carmichael v. Samyang Tire, Inc., 131 F.3d 1433

Spe ey Cb cedels cen aucdacsemet 2, 13, 19, 21, 22

Compton v. Subaru of America, Inc., 82 F.3d 1513

(10th Cir. 1996), cert. denied, 117 S.Ct. 611 (1996) .... 12

Cummins v. Lyle Industries, Inc., 93 F.3d 362 (7th Cir.

PN 6 ok b cebhbidakhseednedeawusks Ghd aeediciecreks 15

Dalehite v. United States, 346 U.S. 15 (1953)........... 0)

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

Sy: I I de at i eg a ik rE oe passim

Daubert v. Merrell Dow Pharmaceuticals, Inc., 43

F.3d 1311 (9th Cir. 1995), cert. denied, 516 U.S.

tt Ce ch atin te bat ehh iddweeddduadanneéet 6, 14, 29

DePaepe v. General Motors Corp., 141 F.3d 715 (7th

Se 6304 hdc cccantawadwoun feukvicacaatea 15, 24

E.1. Du Pont de Nemours & Co. v. Train, 430 U.S. 112

San te tas ie caghens dads adbecdantn 6 web kok )

Far East Conference v. United States, 342 U.S. 570

SUUSs deconeeniaanbhvecacecddbatawisvetvessevu ks y

iv

TABLE OF AUTHORITIES — Continued

Page

Federal Power Commission v. Colorado Interstate

Gas Cai, Bee Ge ee a sa ten demi dacdtaricss 9

Foucha v. Louisiana, 504 U.S. 71 (1992).............. 28

Frye v. United States, 54 App. D.C. 46, 293 F. 1013

GOR s 6 wccucvavkscsodtousiebi terest cease tsaks 12, 29

General Electric Co. v. Joiner, 118 S.Ct. 512 (1997). .. . passim

Jones v. United States, 463 U.S. 354 (1983)........... 28

Kansas v. Hendricks, 117 S8.Ct. 2072 (1997)........ 27, 28

Lehigh Valley Coop. Farmers v. United States, 370

SB FS RT Oo ee ay 7)

Moore v. Ashland Chemical, Inc., No. 95-20492 (Sth

Cir. Aug. 14, 1998) (1998 U.S. App. LEXIS 18883) .... 16

National Labor Relations Board v. Boeing Co., 412

ee Ge Qe ou 0-0 00 6a eb cas enckeedsbeheteeeisbeas 9

Old Chief v. United States, 117 S.Ct. 644 (1997)....... 22

Pennsylvania R.R. Co. v. Day, 360 U.S. 548 (1959) ..... 9

Rochester Telephone Corp. v. United States, 307 U.S.

Sa Cask bce cent dceneddas daca dweniesdnens ca )

Rosen v. Ciba-Geigy Corp., 78 F.3d 316 (7th Cir.

POPs d cav-dcvehenkes ddudsaekeene tsenkuatedaabeucss 15

San Antonio Independent School District v.

pepenes, GEE ae. § Goeeeesevencoleddsiencestodos 9

Shapero v. Kentucky Bar Assn., 486 U.S. 466 (1988) ..... 9

St. Joseph Stock Yards Co. v. United States, 298 U.S.

FS GHEE do ka hbebnsnsehndcasen ed det beste kets oek 9

Texas Gas Transmission Corp. v. Shell Oil Co., 363

De See GEA bo bbw bdtent dd udbde cetnataeneseet 9

TABLE OF AUTHORITIES - Continued

Page

United States v. Abel, 469 U.S. 45 (1984) ............. 12

United States v. Downing, 753 F.2d 1224 (3d Cir.

PTEGUUr bade kee a Oks CON ae bbb oc Bbw cee hin ccere 21

United States v. National Lead Co., 332 U.S. 319

SN SUSE psec bub deseo dle keh BBcdle ec dedbeccrce i)

United States v. Scheffer, 118 S.Ct. 1261 (1998). .... 5, 25, 26

United States National Bank of Oregon v. Independent

Insurance Agents of America, 508 U.S. 439 (1993) ..... 7

Watkins v. Telsmith, Inc., 121 F.3d 984 (Sth Cir. 1997)..15, 16

STATUTES AND RuLes

EE EE UG Se sesecbeiucbasdavdveccedes te 5, 11

EE OD acc cddehwadieeUhs ob Gouventobheswe tt, 22

i i hice chs Gund s ckwal ae ands £6 dadaennsdl 11

is Ph Me obokvense des ¥iwccbacecndivevces passim

i a a tA Se 27

MIscELLANEOUS

OR RE EI ee oe ee Pe prem 19

Marcia Angell, Science on Triac: tHe CLAsH oF Mepi-

cat Evipence AND THE Law in THE Breast ImpLant

ie ee oe, Does es oe. ae ceceees 17

a a ot eek Sue 19

ig I ns ee tebe biaddee obeeede 19

vi

TABLE OF AUTHORITIES — Continued

F. Bailey & H. Rothblatt, InvestiGarion AnD Prepara-

TIon oF Crimnat Cases-{1970)... 2... 6.6 2 ee ee eee 5

David J. Beck, Gregory P. Joseph, James F Stapleton

& Fletcher L. Yarbrough, Federal Rules of Evi-

dence Committee, American College of Trial Law-

yers, Standards and Procedures for Determining

the Admissibility of Expert Evidence After Daubert,

se § S. FO Re ere ee 7, 13

OS I ee ey Os. er pee pK penn Sims 19

a a a a eee 19

EROS TT ity I RE HE ARE ak > WE PRC fal 19

Bert Black, Jonathan M. Hoffman, Jack F. Dunbar,

Christine A. Hogan, and George W. Lavender III,

The Law of Expert Testimony — A Post-Daubert

Analysis, in Expert Evipence A Practitioner's

Guwe to Law, Science, anp tHe FIC Manuac (Bert

Black and Patrick W. Lee eds., 1997)................ 5

Associate Justice Stephen G. Breyer, The Interdepen-

dence of Science and Law, Address at the 1998

American Association for the Advancement of Sci-

ence Annual Meeting and Science Innovation

Bapwsition GUD. 0G, TEGGD occ ccccccccsccccesscccucs 16

Brief for the United States, filed in United States v.

Rotation BEB Bie. Bee COGOe oss ccvewnescessesens 26

Frank Close, Too Hor ro Hanpie: THe Race ror Cop

ene ee AO ie Oe ed sw ene’ 18

Confronting the New Challenges of Scientific Evi-

dence, 108 Harv. L. Rev. 1481 (1995)............ 13, 26

D. Faigman, D. Kaye, M. Saks & J. Sanders, Mopern

ee hy ere 26

vii

TABLE OF AUTHORITIES — Continued

G. Michael Fenner, The Daubert Handbook: Its

Essential Dilemma, and Its Progeny, 29 CreiGuron

& 6g RRR any talip Dag tie anne ip ar 10

Paul C. Giannelli, The Admissibility of Novel Scien-

tific Evidence: Frye v. United States, a Half-Cen-

tury Later, 80 Covum. L. Rev. 1197 (1980).......... 21

I. Goldstein & F. Lane, Goupsremw Tria Tecunioues

RRR IRIE ses. Soe I a ie PE oa ae 4

Michael H. Graham, Hanpsook or Feperar Evipence

ee occ ckvins dalek Keuekslavecr eva 12

Roy A. Grout, THe Hive anp tHe Honeyeee (1921) ..... 19

Note, A Misapplication of Daubert: Compton v. Sub-

aru of America Opens the Gate for Unreliable and

Irrelevant Expert Testimony, 1997 B.Y.U. L. Rev.

is ane SoU eG hau wcn ob bdGK Ebb ebeb sé os4k 6% 11

Ranpom House Dictionary or THE ENouisH LANGUAGE

FB RR IRR eas PS eres ay rena eee s

Linda Sandstrom and William G. Young, Daubert’s

Gatekeeper: The Role of the District Judge in

Admitting Expert Testimony, 68 Tur. L. Rev. 1457

PT CtaMdnuéusns énduecabasedeklvbersctceds os 8, 9

Hayward G. Spangler, Gordon D. Waller & Charles D.

Owens, Effects of Air Movement at the Hive

Entrance on the Flight Activities of Honeybees, 8 J.

ApicucturaL Researcu 133 (1969)................... 20

Wesster’s TuHirp New Internationa Dictionary

EERE RAM 9 SOR FN ESS ee 8, 23

l

INTEREST OF AMICI CURIAE*

The Product Liability Advisory Council, Inc. (“PLAC”)

is a nonprofit corporation with 126 corporate members from a

broad cross-section of American industry, and the product

liability lawyers who represent them. Its corporate members

include manufacturers and sellers in industries ranging from

electronics to automobiles to pharmaceutical products and

medical devices.! PLAC’s purpose is to file amicus briefs on

issues that affect the law of product liability. PLAC has

submitted over 400 amicus briefs in state and federal courts,

including this Court.

The Chemical Manufacturers Association (CMA) is a

nonprofit trade association whose member companies pro-

duce, market, and use industrial chemicals. Its members com-

prise more than 90 percent of the productive capacity for

basic industrial chemicals in the United States. The chemical

industry employs over one million workers in this country,

and produces about 2.1 percent of the U.S. gross domestic

product. On a value-added basis, it is about 11.8 percent of

U.S. manufacturing.

The Chamber of Commerce of the United States of Amer-

ica (the Chamber) is the largest federation of business, trade,

and professional organizations in the United States. The

Chamber represents an underlying membership of more than

three million businesses and organizations of every size, sec-

tor, and region. Ninety-six percent of the Chamber's members

*Pursuant to $.Ct. R. 37.6, counsel for amici curiae states that this

brief was not authored in whole or in part by a party and that no person or

entity, other than amici curiae and their counsel, made a monetary

contribution to the proportion or submission of this brief.

Pursuant to S.Ct. R. 37.3, counsel for amici curiae states that both

plaintiffs and defendant have granted blanket consent to the filing of

amicus briefs. The parties have agreed to file a letter evidencing such

consent.

' A list of PLAC’s corporate members appears in the Appendix

hereto.

2

are businesses with less than 100 employees. For these small

businesses, having to defend claims that may be unsupported

by reliable evidence can threaten their very existence.

MEDMARC is a specialty insurer which provides prod-

uct liability coverage for medical device manufacturers.

Owned and controlled by its members, MEDMARC was

founded in 1979 in response to volatile conditions in the

commercial insurance market for product liability insurance.

MEDMARC’s membership includes approximately 550 manu-

facturers and distributors of medical devices and diagnostic

products.

The issue in this case is the proper standard for evaluat-

ing the reliability of expert testimony based on Fed. R. Evid.

702, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579 (1993), and General Electric Co. v. Joiner, 118 S.Ct. 512

(1997). Amici curiae are well-situated to address this issue.

Their members must defend an increasing number of product

liability lawsuits in which expert testimony is the rule, not the

exception. Amici curiae regularly face appeals on issues relat-

ing to the propriety of expert testimony.

SUMMARY OF ARGUMENT

In Carmichael v. Samyang Tire, Inc., 131 F.3d 1433 (11th

Cir. 1997), the Eleventh Circuit Court of Appeals erred in

concluding that this Court's decision in Daubert is inapplica-

ble to expert testimony from an engineer who did not rely on

scientific principles or any methodology or technique in arriv-

ing at his opinions. The Eleventh Circuit collapsed the

reliability and relevancy requirements of Fed. R. Evid. 702

into the qualification requirement of that Rule, holding that,

because the expert was qualified based on his training and

experience, he could testify to his opinions arising from his

training and experience. The Court of Appeals concluded that

the district court had erred in applying the Daubert factors to

evaluate the reliability of the expert’s testimony, and

remanded the case for reconsideration, with directions not to

apply the Daubert criteria in assessing the reliability of the

3

expert’s proffered testimony. The Court of Appeals’ holding

undermines the gatekeeper role of district courts, and opens

the door for opinion testimony in precisely those situations

when such testimony should be barred: when expert witnesses

shun the applicable methodologies of their field, purporting to

rely on their training and experience alone as the basis for

their opinions. The Court of Appeals’ decision inap-

propriately exalted the qualifications of the expert as the

primary standard for determining admissibility, ignoring this

Court’s admonition in Joiner that “nothing in either Daubert

or the Federal Rules of Evidence requires a district court to

admit opinion evidence which is connected to existing data

only by the ipse dixit of the expert.” /d. at 519.

Affirmance of the Court of Appeals’ judgment would

lead to an absurd result: experts who rely on scientific princi-

ples, or recognized methodologies or techniques, would be

subjected to a Daubert analysis, while experts who disregard

the rigors of science would pass through the gate without

scrutiny. Such a result turns the law of evidence upside down:

it holds the gate wide open for those who require the strictest

scrutiny, and permits the expert to choose the standard that

will be used to judge reliability. Expert witnesses cannot be

permitted to cut a hole in the fence to avoid the gatekeeper. If

the Court of Appeals’ decision is permitted to stand, putative

experts will quickly learn that using good scientific or techni-

cal methodologies invites judicial gatekeeping, while the dis-

avowal of any methodology permits the witness to crawl

through the fence. An expert in any discipline would be loathe

to present to peers a conclusion lacking an objective founda-

tion. This Court should not permit experts to testify to that

which they would not present to their professional peers.

Contrary to the Eleventh Circuit’s view, the Daubert

factors are capable of broad application to many fields of

expertise. While other factors may be appropriate in some

cases, the four factors identified in Daubert are not merely

standards for the admission of scientific expert testimony;

they are standards which should be considered by courts in

4

evaluating the reliability of all forms of experi testimony. The

Daubert factors help courts to separate objective knowledge

from personal opinions, subjective belief, and unsupported

speculation. They are as easily applied to the testimony of an

engineer analyzing a tire failure or that of a beekeeper opin-

ing that bees always take off into the wind as they are to an

epidemiologist testifying that Bendectin causes birth defects

or a physician testifying that PCBs are capable of causing

small cell lung cancer. Depending on the subject matter of the

testimony, each of the factors may be more or less important;

and in some fields there may be additional significant factors.

However, no matter what field of expertise is involved, there

must be an objective standard by which a trial court can

address the reliability of proffered expert testimony. Fed. R.

Evid. 702, as applied in Daubert and Joiner provides that

objective standard. For these reasons, the Court of Appeals’

judgment should be reversed.

ARGUMENT

I. Fed. R. Evid. 702 Requires Trial Courts to Exercise

Their Gatekeeper Function Under Daubert to Deter-

mine the Relevance and Reliability of All Proffered

Expert Evidence.

Given the growing complexity of issues in federal court

litigation, expert testimony is frequently essential.2 Expert

testimony explains to lay jurors that which they may not

otherwise understand. Hence, such testimony can be powerful

and persuasive.* Because such testimony is so powerful, and

2 See Joiner, 118 S.Ct. at 520 (Breyer, J., concurring) (observing that

“cases presenting significant science-related issues have increased in

number... . ”); Ake v. Oklahoma, 470 U.S. 68, 82 n.8 (1985) (“Modern

civilization, with its complexities of business, science, and the professions,

has made expert and opinion evidence a necessity. . . . ") (quoting 2 I.

Goldstein & F. Lane, Go-pstein Triat Tecuniques § 14.01 (2d ed. 1969)).

* See Ake, 470 U.S. at 82 n.7 (“[testimony] emanating from the depth

and scope of specialized knowledge is very impressive to a jury. The same

5

because it necessarily dwells on issues with which judges and

juries are unfamiliar, it must be scrutinized to assure its

reliability. Otherwise, the legal process is subject to being

subverted by the well-qualified witness who believes that he

or she is infallible, having foregone the demands of the

specialty and succumbed to the notion that a collection of

anecdotes amounts to data. All expert testimony, whether of a

scientific, technical, or other specialized subject must be

reliable. The trial court, acting as gatekeeper, must assess the

reliability and relevancy of expert evidence under Fed. R.

Evid. 104(a) before such testimony is admitted.

Daubert teaches us that “[t}he primary locus of this

obligation is Rule 702.” /d. at 589. Indeed, this Court recently

observed that “the exclusion of unreliable evidence is a prin-

ciple objective” of Rule 702. United States v. Scheffer, 118

S.Ct. 1261, 1265 (1998). In effect, this appeal is focused on a

single question: how should trial courts fulfill their gatekeep-

ing obligation to determine the reliability of proffered expert

testimony? In answering this question, the Court must con-

strue and apply that Rule.

Rule 702 contains three separate requirements for expert

testimony to be admissible:

(1) The expert’s testimony must refer to “scien-

tific, technical, or other specialized knowl-

edge”; in other words, it must be reliable;

(2) The expert’s testimony must “assist the trier of

fact”; in other words, it must be relevant and

must “fit” the facts of the case; and

(3) The expert must be qualified.

See Fed. R. Evid. 702; see generally Bert Black, Jonathan M.

Hoffman, Jack F. Dunbar, Christine A. Hogan, and George W.

Lavender III, The Law of Expert Testimony — A Post-Daubert

Analysis, in Expert Evipence A Practirioner’s Guipe to Law,

testimony from another source can have less effect.”) (quoting F. Bailey &

H. Rothblatt, InvesTiGATION AND PREPARATION OF CriminaAL Cases § 175

(1970)).

6

SGENCE, AND THE FJC Manuac 18-19 (Bert Black and Patrick

W. Lee eds., 1997). Each of these elements must be met

before an expert is permitted to testify. Thus, the satisfaction

of one element cannot substitute for a failure to satisfy one of

the other two. For example, the plaintiffs’ experts in Daubert

unquestionably satisfied the qualification prong of Rule 702.

See id. at 583 n.2; but, on remand, the Ninth Circuit held the

testimony was inadmissible because it had failed to meet the

reliability and relevancy prongs of Rule 702. See Daubert v.

Merrell Dow Pharmaceuticals, Inc. (Daubert Il), 43 F.3d

1311 (9th Cir. 1995), cert. denied, 516 U.S. 869 (1995). This

is not to say that reliability, relevancy, and qualifications are

mutually exclusive. To the contrary, they are overlapping and

interdependent in some respects. The scope of an expert's

qualifications will determine the subjects upon which the

expert can provide reliable expert testimony. Similarly, the

reliability of the expert’s testimony, i.e., whether it is the

product of objective knowledge, wil! necessarily affect

whether the testimony can assist the trier of fact; unreliable

testimony cannot aid the jury.

A. The Plain Language of Rule 702 Requires that the

Words “Scientific, Technical, or Other Spe-

cialized Knowledge” be Read Together to Provide

a Single Standard for the Admissibility of All

Expert Testimony.

The Court of Appeals’ erred in concluding that the gate-

keeper role and Daubert analysis apply only to “scientific

experts,” i.e., experts “who claim scientific expertise.”

According to the Court, an expert who bases an opinion on

skill or experience is not a scientific expert and is not subject

to Daubert scrutiny. This holding ignores the clear language

of Rule and the canons of statutory construction.

The Federal Rules of Evidence are legislative enactments

and courts use traditional tools of statutory construction in

their interpretation. Daubert, 509 U.S. at 587; Beech Aircraft

Corp. v. Rainey, 488 U.S. 153, 163 (1988). Hence, the Court’s

7

inquiry must start with the plain language of the Rules.

Rainey, 488 U.S. at 163. If needed, the Court may draw upon

the legislative history,4 or the Advisory Committee Notes of

a particular Rule to aid in its construction. The text of a

Statute or rule consists of words living “a communal exis-

tence,” the meaning of each word informing the others and

“all in their aggregate tak[ing] their purport from the setting

in which they are used.” United States National Bank of

Oregon v. Independent Insurance Agents of America, 508 U.S.

439, 454 (1993).

Rule 702 provides that:

If scientific, technical, or other specialized knowl-

edge 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, experi-

ence, training, or education, may testify thereto in

the form of an opinion or otherwise.

In his dissent in Daubert, Chief Justice Rehnquist ques-

tioned whether the phrase “scientific technical, or other spe-

cialized knowledge” must “be broken down into numerous

subspecies of expertise, or did [the] authors [of Rule 702]

simply pick general descriptive language covering the sort of

expert testimony which courts have customarily received?”

Daubert, 509 U.S. at 600 (Rehnquist, C.J., dissenting). This

question may now be answered. Amici assert that the words of

Rule 702 must be read together, and that Daubert must apply

to all testimony falling within Rule 702.

Neither the text of Rule 702 nor its Advisory Committee

Notes support the view that one admissibility standard applies

to “scientific” evidence while other standards apply to “tech-

nical, or other specialized evidence.” David J. Beck, Gregory

P. Joseph, James F. Stapleton & Fletcher L. Yarbrough, Fed-

eral Rules of Evidence Committee, American College of Trial

Lawyers, Standards and Procedures for Determining the

4 See id. at 164.

5 See id. at 166.

Admissibility of Expert Evidence After Daubert, 157 F.R.D.

571, 578 (1994). The terms “scientific,” “technical,” and

“specialized” are adjectives, modifying the meaning of the

noun “knowledge.” Daubert teaches that knowledge “con-

notes more than subjective belief or unsupported specula-

tion,” and that it “ ‘applies to any body of known facts or to

any body of ideas inferred from such facts or accepted as

truths on good grounds.’ /d. 589-90 (quoting Wessrer’s

Tuirp New INTERNATIONAL Dictionary 1252 (1986)).

The term “scientific” refers to “a grounding in the

methods and procedures of science.” Daubert, 509 U.S. at

590. Similarly, “technical” is defined as “practical knowledge

especially of a mechanical or scientific subject,” Wessrer’s

Tuirp New INTERNATIONAL Dictionary 2348 (1986), but it also

encompasses knowledge that is characterized by specializa-

tion. Black, et al., The Law of Expert Testimony, supra at 51

(citing Wesster’s, supra at 2348). Technical knowledge might

be characterized as spanning the gap between scientific

knowledge and other forms of specialized knowledge. See

Black, et al., The Law of Expert Testimony, supra at 51.

“Specialized” knowledge consists of “any knowledge focused

on a particular area of study, profession, or experience,” and

may arguably be broader than the terms “scientific” and

“technical.” Linda Sandstrom and William G. Young,

Daubert’s Gatekeeper: The Role of the District Judge in

Admitting Expert Testimony, 68 Tur. L. Rev. 1457, 1466

(1994) (citing RANpom House Dictionary or tHe ENGouisn LAn-

GuaGce 1950 (2d ed. 1987)).

Ultimately, in the effort to define criteria for the admis-

sion of expert evidence, there is no utility in creating hair-

splitting distinctions among scientific, technical, and spe-

cialized knowledge.® Nor is there anything to be gained by

© In varying contexts, cases from this Court have used the terms

“technical knowledge” and “specialized knowledge” almost

interchangeably. Examples include: (1) legal knowledge, compare Faretia

v. California, 422 U.S. 806, 836 (1975) (referring to a criminal defendant's

9

attempting to apply interpretive rules of construction in an

effort to divine some deeply hidden meaning in the way in

which Rule 702’s drafters organized these terms. See, e.g.,

Sandstrom and Young, supra at 1468 n.81 (considering and

rejecting the application of the principle of ejusdem generis to

technical legal knowledge) with Shapero v. Kentucky Bar Assn., 486 U.S.

466, 490 (1988) (O'Connor, J. dissenting) (legal profession possessed of

specialized knowledge), (2) knowledge of school policies and teaching

procedures, see San Antonio Independent School District v. Rodriguez, 411

U.S. 1, 42 (1973) (referring to specialized knowledge and experience in

education policy); (3) railroad labor and employment law, compare

National Labor Relations Board v. Boeing Co., 412 U.S. 67, 77 (1973)

(referring to technical knowledge of labor law); with Pennsylvania R_R.

Co. v. Day, 360 U.S. 548, 553 (1959) (“provisions in railroad collective

bargaining agreement are of a specialized technical nature calling for

specialized technical knowledge in ascertaining their meaning and

application.”); (4) shipping and ocean-going vessels, see Far East

Conference v. United States, 342 U.S. 570, 573 (1952) (overseas shipping

business requires a high degree of expert and technical knowledge), (5)

general regulation of businesses and trade, see E.1. Du Pont de Nemours &

Co. v. Train, 430 U.S. 112, 117 (1977) (referring both to scientific

knowledge and technical information on factors necessary to restore and

maintain water quality), Federal Power Commission v. Colorado Interstate

Gas Co., 348 U.S. 492, 501 (1955) (public utility rate making requires

technical knowledge of accounting, economics, and policy); Lehigh Valley

Coop. Farmers v. United States, 370 U.S. 76, 110 (1962) (noting need for

technical knowledge of the milk industry in order to regulate it effectively );

Dalehite v. United States, 346 U.S. 15, 52 (1953) Jackson, J., dissenting)

(referring to the technical knowledge of the inherent but latent dangers of

ammonium nitrate fertilizer); United States v. National Lead Co., 332 U.S.

319, 359 (1947) (discussing technical knowledge of the titanium pigment

industry); Rochester Telephone Corp. v. United States, 307 U.S. 125, 139

(1939) (Interstate Commerce Commission must rule on technical matters

regarding surface transportation); St. Joseph Stock Yards Co. v. United

States, 298 U.S. 38 (1936) (counsel discussing the technical knowledge

surrounding the operation of stockyards) with Texas Gas Transmission

Corp. v. Shell Oil Co., 363 U.S. 263, 268 (1960) (referring to the

specialized knowledge of the regulation of natural gas businesses); Burford

v. Sun Oil Co., 319 U.S. 315, 327 (1943) (Texas state courts and Railroad

Commission have specialized knowledge).

10

the knowledge prong of Rule 702). The terms scientific,

technical, and specialized are not distinct, bright-line catego-

ries, and nothing in Rule 702 or Daubert suggests that they

require separate admissibility analyses. Black, et al., supra at

50. Rather, they represent points along a continuum, each

referring to knowledge of subjects that are not part of com-

mon or widespread knowledge. /d.

Daubert provides no support for the Court of Appeals’

distinction between scientific expert evidence and all other

kinds of such evidence. Because of its facts, the Daubert

opinion focused on scientific evidence. But, Daubert teaches

that “Rule 702 also applies to ‘technical, or other specialized

knowledge.’ ” /d. at 590 n.8. As the Court noted, “[a}lthough

the Frye decision itself focused exclusively on ‘novel’ scien-

tific techniques, we do not read the requirements of Rule 702

to apply specifically or exclusively to unconventional evi-

dence.” /d. at 593 n.11. Thus, while this Court’s discussion

may have been limited to the scientific evidence at issue in

Daubert, the Court made clear that Rule 702 applies to all

expert testimony, and that it is the locus of the trial court's

obligation to act as gatekeeper. See id. at 589. To reaffirm this

point, in Joiner, 118 S.Ct. at 517, the Court declared that “the

Federal Rules of Evidence . . . leave in place the ‘gatekeeper’

role for the trial judge in screening such evidence.” Daubert

and Joiner were toxic tort cases, and each considered specific

factual scenarios which clearly involved “scientific knowl-

edge.” However, this does not limit the scope of the gatekeep-

ing role and does not permit experts professing “technical, or

other specialized knowledge” to avoid the Daubert require-

ments of “appropriate validation,” i.e., “good grounds,” by

purporting to rely only on their training and experience in

support of their opinion. See Daubert, 509 U.S. at 590; see

generally G. Michael Fenner, The Daubert Handbook: Its

Essential Dilemma, and Its Progeny, 29 Creicutron L. Rev.

939, 972 (1996) (“If the expert is . . . an expert in ‘technical

or other specialized knowledge,’ the judge still needs to

determine whether the witness is in fact an expert, and, if so,

the judge needs to consider the reliability of the expert's

general theory and methodology; the reliability and relevance

of the expert’s application of the theory and methodology to

the facts of the case at bar; and, under Rule 403, whether

unfair prejudice, confusion and time consumption substan-

tially outweigh its probative value.”).

Had the Drafters of Rule 702 intended to require differ-

ent treatment for each of these categories, they could have

stated the categories in separate rules. Compare Fed. R. Evid.

701 (referring to lay opinion testimony) with Fed. R. Evid.

702 (referring to expert opinion testimony), or in discrete

subsections of the same rule. See, e.g., Fed. R. Evid. 403

(containing 24 separate hearsay exceptions, each in its own

discrete subsection). At very least, one might have expected

some mention of the need for such differential treatment of

these categories in the Advisory Committee Notes to Rule

702.’ See, e.g., Daubert, 509 U.S. at 588 (scouring the Fed-

eral Rules of Evidence and the Advisory Committee Notes

and finding no reference to the Frye rule for the admission of

novel scientific evidence). None of the Federal Rules, nor any

of the Advisory Committee Notes, supports the view that

there are different standards for admitting expert evidence

depending on whether the evidence is scientific, technical, or

of another specialized form. Note, A Misapplication of

Daubert: Compton v. Subaru of America Opens the Gate for

Unreliable and Irrelevant Expert Testimony, 1997 B.Y.U. L.

? The Judicial Conference Advisory Committee charged with

proposing revisions to Rule 702 has recognized the broad application of

Rule 702's reliability requirement beyond the field of scientific inquiry.

The proposed Advisory Committee Note to Rule 702 states that “The Rule

provides that expert testimony of all types — not only the scientific

testimony specifically addressed in Daubert — presents questions of

admissibility for the trial courts in deciding whether the evidence is reliable

and helpful, and as such is governed by Rule 104(a).” Proposed

Amendment to Fed. R. Evid. 702, Advisory Committee Note.

12

Rev. 489, 506 (1997)* (“If the drafters intended that different

standards should apply to various types of experts under Rule

702 or that there should be exceptions for certain kinds of

expert evidence, arguably, they would have incorporated them

into the Rules.”).

Further, the common law of evidence does not support

the distinction between scientific and other forms of expert

evidence.? The closest the common law came to establishing a

distinction between scientific and non-scientific evidence was

in its treatment of novel scientific evidence. The common law

included the “general acceptance” rule of Frye v. United

States, 54 App. D.C. 46, 47, 293 F. 1013, 1014 (1923), which

applied only to “novel scientific evidence.” See Daubert, 509

U.S. at 585. But, Frye historically was applied “solely in

criminal cases to new and novel explanative theories, in

almost all cases forensic evidence offered by the government.

Frye wasn't applied in product liability cases at all.” 2

Michael H. Graham, Hanpsoox or Feperar Evipence § 702.5

(4th ed. Supp. 1998). Thus, while the common law did draw

some distinctions among categories of expert evidence, those

distinctions are not memorialized in the text of Rule 702 or

replicated in this Court's analysis in Daubert. See Daubert,

509 U.S. at 593 n.11 (“Although the Frye decision

. . . focused exclusively on ‘novel’ scientific techniques, we

do not read the requirements of Rule 702 to apply specif’. . lly

or exclusively to unconventional evidence.”).

Finally, principles of sound judicial economy disfavor

the Balkanization of Rule 702. As the American College of

Trial Lawyers observed:

* Compton v. Subaru of America, Inc., 82 F.3d 1513 (10th Cir. 1996),

cert. denied, 117 S.Ct. 611 (1996).

* The common law of evidence forms the “background” for the

Federal Rules of Evidence. See generally Daubert, 509 U.S. at 587; United

States v. Abel, 469 U.S. 45, 52 (1984). It may be considered in construing

the meaning of the Rules. /d.

13

We urge that it is preferable that there be a

single conceptual framework for evaluating the

admissibility of all types of expert evidence.

Although it may be attractive to academics and

ubiquitous CLE speakers to construct a complex

“Daubertology” discipline in which fine distinc-

tions are drawn among types of expert testimony,

that result would be harmful both to the doing of

justice and to our system of advocacy. . . . Given

the combination of the enormously crowded dockets

of the federal district courts and the apparent need

for those courts to hold “Daubert hearings” with

respect to challenged expert testimony, it is highly

desirable that trial judges have a single standard to

apply... .

Beck, et al., supra, 157 F.R.D. at 577. Other commentators

agree:

The least confusing and arbitrary way to deal

with the classification issue would be to apply the

same general standards of reliability and relevance

to all types of expert testimony. There is no reason

for an arbitrary classification to govern whether

evidence relied on by the jury should be held to a

lower standard of trustworthiness. . . .

Confronting the New Challenges of Scientific Evidence, 108

Harv. L. Rev. 1481, 1527 (1995).

In sum, there is nothing either in the text of Rule 702 or

in the decisions of this Court that in any way supports the

Court of Appeals’ distinction between “scientific and non-

scientific expert testimony.” See Carmichael, 131 F.3d at

1435.

B. An Expert’s Training and Experience are Insuffi-

cient to Establish that the Proffered Testimony is

Reliable. =

The Court of Appeals held that an expert's qualifications

through training and experience may establish the reliability

14

of the proffered testimony, even though the expert has applied

no methodology or technique, and the expert's proffered testi-

mony cannot pass through Daubert’s gate. Under the Court of

Appeals’ reasoning, any expert would clear the reliability

gate every time he or she is found to be qualified to testify

based on training and experience. Such reasoning contradicts

this Court’s clear holding that Rule 702 requires the trial

court independently to assess the reliability of proffered

expert testimony. Joiner, 118 S.Ct. at 517; Daubert, 509 U.S.

at 589.

In Daubert, there was never any question that the plain-

tiffs’ experts possessed advanced degrees, had years of train-

ing and experience in their respective fields, and had

“impressive” credentials. Daubert, 509 U.S. at 583 n.2. If an

expert's training, experience, and qualifications were enough

to establish the reliability of his or her testimony, this Court's

decision in Daubert would have been superfluous. See

Daubert Il, 43 F.3d at 1325-16 (“something doesn’t become

scientific knowledge just because its uttered by a scientist;

nor can an expert's self-serving assertion that his conclusions

were ‘derived by the scientific method’ be deemed conclu-

sive, else the Supreme Court's opinion would have ended With

footnote two.”). Likewise, in Joiner, the plaintiffs’ experts

were not found to be unqualified. However, the trial court

excluded their testimony as unreliable and unable to assist the

jury in determining the cause of the plaintiff's cancer. Per-

ceiving no abuse of discretion in the trial court’s ruling, this

Court stated that:

[Nothing in either Daubert or the Federal Rules of

Evidence requires a district court to admit opinion

evidence which is connected to the existing data

only by the ipse dixit of the expert. A court may

conclude that there is too great an analytical gap

between the data and the opinion proffered.

Joiner, 1148 S.Ct. at 512.

The lesson of Joiner and Daubert is clear. Qualifications

and experience in a particular field or discipline are neces-

sary, but not sufficient, to establish admissibility. The expert's

Bs)

opinions must also “have a reliable basis in the knowledge

and experience of his discipline.” Daubert, 509 U.S. at 592.

Thus, the question is not whether the expert has hands-on

experience but whether his or her testimony meets scientific

standards of hypothesis testing and support by objective data.

DePaepe v. General Motors Corp., 141 F.3d 715, 719 (7th

Cir. 1998). Rule 702 is designed to ensure that, when expert

witnesses testify in court, they must adhere to the same

standards of intellectual rigor that are demanded in their

professional work. Cummins v. Lyle Industries, Inc., 93 F.3d

362, 369 (7th Cir. 1996). If experts do so, “their evidence, if

relevant, is admissible, even if the particular methods they

have used in arriving at their opinion are not yet accepted as

canonical in their branch of the scientific community.” Rosen

v. Ciba-Geigy Corp., 78 F.3d 316, 318-19 (7th Cir. 1996). In

order to determine whether there is a reliable basis for the

expert's opinion, the trial court must exercise its gatekeeping

role and examine whether there is objective support for the

theories, principles, techniques, methodologies, or modes of

analysis used by the expert, and by other experts in the

relevant discipline. To be admissible, an opinion must have

more for its basis than the experience and training of the

expert; if it is engineering testimony, it must be grounded in

the recognized methods and principles of engineering. Other-

wise, the “knowledge” imparted to the jury is nothing more

than subjective personal opinion.

Watkins v. Telsmith, Inc., 121 F.3d 984 (Sth Cir. 1997), is

illustrative on this issue. There, as here, an engineering expert

sought to testify based only on his training and experience.

Affirming the exclusion of this testimony, the Court of

Appeals observed that:

[I]t seems exactly backwards that experts who pur-

port to rely on general engineering principles and

practical experience might escape screening by the

district court simply by stating that their conclu-

sions were not reached by any particular method or

technique. The moral of this approach would be, the

less factual support for an expert's opinion, the

16

better. [Such a] view of the admissibility of expert

evidence is untenable.

Id. at 991.'°

As the Watkins court correctly observed, speculation by a

witness with training and experience is not rendered admissi-

ble because of the witness’ qualifications: highly qualified

witnesses who depart from the rigors of their disciplines are

dangerous witnesses who are likely to confuse and mislead

jurors, who may be seduced into accepting an opinion merely

because it 1s spoken by one with extensive experience and

stellar credentials. Indeed, courts should be particularly wary

of that expert who proposes to ignore the methodology of the

pertinent specialty and opine based on training and experi-

ence alone. The suggestion that cross-examination will ferret

out weaknesses in testimony and lead to a correct result has

become the mantra of those who would flatter the examiner

and the adversarial system to escape scrutiny of the founda-

tion for the expert's opinion.'!

Rule 702 permits reliable and relevant testimony to be

presented by a qualified expert. In addressing the admis-

sibility of such testimony, the trial court must take care in

defining the field of expertise required to answer the question

10 See also Moore v. Ashland Chemical, Inc., No. 95-20492 (Sth Cir.

Aug. 14, 1998) (1998 U.S. App. LEXIS 18883) (en banc) (reaffirming

Watkins and holding that a treating physician’s training and experience in

clinical medicine did not immunize his opinions from scrutiny under

Daubert to determine their reliability and relevancy).

1! Must the cross examiner bear the burden of demonstrating to a lay

jury how erroneous a hypothesis is when that hypothesis is presented by a

well-qualified expert? Such a situation harkens to the colloquy between

Physicist Wolfgang Pauli and a colleague who asked whether a scientific

paper was wrong. Pauli’s response: “Oh no. Certainly not. That paper isn't

good enough to be wrong.” Associate Justice Stephen G. Breyer, The

Interdependence of Science and Law, Address at the 1998 American

Association for the Advancement of Science Annual Meeting and Science

Innovation Exposition (Feb. 16, 1998).

17

presented, whether the witness has the necessary qualifica-

tions within that particular field, and whether there is an

objectively reliable basis for the witness’ opinion. For exam-

ple, an engineer may be qualified to assess the methods for

constructing durable tires and testing their performance in

simulated driving conditions, and yet not have the appropriate

foundation to testify about whether a particular tire suddenly

deflated due to a latent design or manufacturing defect.

Unless the witness follows the appropriate engineering

method, his testimony should be excluded.

In this regard, all learned disciplines can draw from the

lessons of science. Dr. Maria Angell, an editor of the New

England Journal of Medicine recently described one of the

most important and widely applicable lessons of scientific

inquiry:

In science, the requirement for verifiable evidence

must be met, no matter who the researchers are or

what their credentials. Not even Nobel Laureates

are permitted to base a scientific conclusion on an

educated guess. (They can, of course, make guesses

or hypothesize, but those guesses will not be

accepted as evidence unless they are put to the test).

These stringent standards serve a purpose. In sci-

ence as in all walks of life, it is not easy to know

when you have leapt to an unjustified conclusion or

simply made a mistake. Sometimes very successful

scientists, perhaps even more so than novices, come

to believe they are more or less infallible.

Marcia Angell, Science on TRIAL: THE CLASH OF MepicaL Evi-

DENCE AND THE Law IN THE Breast ImpLant Case 94 (1996).

Relying on the strength of one’s own training and experi-

ence, even when coupled with a sincere belief in the correct-

ness of one’s thinking, does not provide an adequate

substitute for reliance on objective, verifiable methodologies.

In a forum of technically proficient peers, poorly founded

theories may readily be exposed for what they are. In a

courtroom, before a lay jury, a poorly founded or simply

incorrect theory or “observation” is less vulnerable, espe-

cially when it is presented from the mouth of an experienced

and well-credentialed expert. Under Rule 702 and Daubert, it

is the unique job of the trial court as gatekeeper to look

beyond the credentials, professional accomplishments, train-

ing, and experience of the expert, and to determine whether

the expert has relied on some objectively verifiable data or

methodology. !2

Here, the Court of Appeals recognized that the plaintiffs’

expert:

_{[MJakes no pretense of basing his opinions on any

scientific theory of physics or chemistry. .. .

Instead, [the expert] rests his opinion on his experi-

ence in analyzing failed tires. After years of looking

at the mangled carcasses of blown-out tires, [he]

claims that he can identify the telltale markings

revealing whether a tire failed because of abuse or

defect. ...

'2 A classic example of an expert's experience and qualifications

leading to premature presentation of a theory as fact is the “cold fusion”

experiment. In that instance, well-qualified scientists committed the

professional sin of jumping to a conclusion without following the

methodology of their discipline. Apparently motivated by competition

from other respected scientists, two electrochemists rushed to announce

and attempted to publish their findings, which they claimed demonstrated

that fusion could occur in an experimental setting at room temperature. See

Frank Close, Too Hot to Hanpie: THe Race ror Coip Fusion 328

(1991). However, their public announcements and attempts at publication

wer not preceded by an appropriate period of controlled experiments to

verify their theory, or to explain other possible causes of the phenomenon

they had observed. /d. at 328-29. In other words, their theory did not rest on

a foundat’»on of objective verification. Later, other scientists tested the

theory, and consistently failed to reveal any proof of cold fusion. As time

wore on, and other we!l-respected scientists found themselves unable to

replicate the results of a relatively simple experiment, the cold fusion

theory began to crumble. As noted by physicist Frank Close: “[t}here

comes a point where one has to accept the message of the data — that the

absence of evidence is evidence of absence.” /d. at 349.

19

Carmichael, 131 F.3d at 1436 (footnotes omitted). The Court

of Appeals found an analogy it thought useful: the plaintiffs’

tire expert was like a beekeeper who could testify, based on

his or her obser ations of many bees, that bees tend to take

off into the wind. /d.'* A beekeeper’s training and experience

may qualify him or her to testify as an expert regarding the

habits of bees, but it does not mean that the beekeeper’s

opinions about bee behavior are reliable. A Daubert analysis

is needed to determine reliability.

Further, a Daubert analysis is readily applied to assess

the reliability of the beekeeper’s testimony. Apiculture is the

study of bees. It has a strong foundation in science, and is

closely tied to the non-scientific occupation of beekeeping.

Specialists in this field develop theories, test those theories

by experiments, and publish their data in peer reviewed pub-

lications.'* The fields of apiculture and beekeeping are well-

integrated and it is possible to determine whether a particular

principle or methodology is generally accepted in this very

specialized community. The question whether bees take off or

land into the wind has been explored by some of these

'3 The beekeeper analogy was originally used in Berry v. City of

Detroit, 25 F.3d 1342, 1350 (6th Cir. 1994) to distinguish between

scientific and non-scientific evidence. Despite the Berry court's

observation that “[t}he difference between scientific and non-scientific

expert testimony is a critical one,” it nevertheless applied the Daubert

factors in evaluating the non-scientific testimony of an expert in police

training. Indeed, the court noted that “[a}lthough . . . Daubert dealt with

scientific experts, its language relative to the ‘gatekeeper’ function of

federal judges is applicable to all expert testimony offered under Rule

702.” Id.

'4 See, e.g., Roy A. Grout, THe Hive anp tHE Honeysee (1921)

(single volume text with many revised editions published, the most recent

of which was published in 1975); J. Apicucrurat Researcn (published

since the 1960s); ApicucruraL Asstracts (published since 1962,

reviewing “the world literature on bees, beekeepers, and related subjects.”’).

Other journals include Am. Bee J.; Bee Cuvrure; Bee Science; and Bee

Wor vp.

20

specialists. They formed theories, conducted tests, and pub-

lished their results. See Hayward G. Spangler, Gordon D.

Waller & Charles D. Owens, Effects of Air Movement at the

Hive Entrance on the Flight Activities of Honeybees, 8 J.

ApicuLrurAL Researcu 133 (1969).'5 Amici submit that the

Daubert factors are readily applicable to test the reliability of

the theory that bees always take off into the wind. However,

under the Court of Appeals’ view, no reliability analysis

would have been undertaken simply because a beekeeper is a

qualified witness, having seen a lot more bees than the jurors

may have.

To Amici, the bumblebee example seems discernibly dif-

ferent from the statements of the tire failure expert in this

case. Here, the expert rendered his opinion in a deposition,

based on his brief visual observation of this tire (made after

he had submitted his expert report opining on causation). The

expert stated that, in his mind, he was able to compare the

plaintiffs’ tire (o thousands of other tires he had seen, and was

able to determine that: (1) the tire was defective; and (2) as a

result of that defect, the tire ruptured and caused the plain-

tiffs’ automobile accident. A better analogy to this expert's

testimony is found in Justice Stevens’ recent dissenting opin-

ion in Joiner, 118 S.Ct. at 522 n.6 (Stevens, J., concurring in

part and dissenting in part): it might be said that, after years

of looking at the contours of human skulls, an experienced

(and presumably well-qualified) phrenologist would claim

that he or she can identify the telltale ridges, lumps, and

bumps revealing whether a criminal defendant is likely to be

dangerous. Yet, as Justice Stevens quite correctly observed,

such “junk science” “should be excluded under Daubert.” Id.

'S This study indicated that bees were twelve times more likely to

land in a hive entrance with outgoing air than they were to land in an

entrance with ingoing air. /d. at 138. However, the researchers did not find

a similiarly high ratio of bees taking off out of the hive against the wind. /d.

The researchers did not consider this finding conclusive, as they considered

the possibility that improved experimental techniques might lead to clearer

results. Id.

21

Following the reasoning of the Court of Appeals, it would

appear that, like the plaintiffs’ expert in this case, a phrenolo-

gist who has cast aside even the remotest concept of objective

analysis would be exempt from the strictures of Daubert

simply because “he makes no pretense of basing his opinion

on any scientific theory... .” Carmichael, 131 F.3d at 1436.

Amici submit that this reasoning cannot stand.

C. The Question Whether Expert Evidence Can

“Assist the Trier of Fact” Is Dependant Upon the

Reliability of the Expert’s Proffered Testimony.

In Daubert, the Court was faced with a choice of (at

least) three conceptual models for determining the admis-

sibility of expert evidence under Rule 702. It chose a

reliability standard coupled with a relevancy standard. The

relevancy standard demands that expert testimony must

“assist the trier of fact to understand the evidence or to

determine a fact in issue.” Expert evidence must “fit” the

facts of the case. Daubert, 509 U.S. at 591; see also United

States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985). Thus,

if the methodology, technique, or principle upon which an

expert relies is too far removed from the facts of the case, the

opinion will not assist the trier of fact and will not be

admissile.'© Expert opinions based on an unreliable meth-

odology will have no probative value and, therefore, they

cannot assist the trier of fact. See Paul C. Giannelli, The

Admissibility of Novel Scientific Evidence: Frye v. United

States, a Half-Century Later, 80 Coium. L. Rev. 1197, 1235

(1980) (“The probative value of scientific evidence . . . is

connected inextricably to its reliability; if the technique is not

'© See, e.g., Joiner, 118 S.Ct. at 518 (“The issue was whether these

experts’ opinions were sufficiently supported by the animal studies on

which they purported to rely. The studies were so dissimilar to the facts

presented in this litigation that it was not an abuse of discretion for the

District Court to have rejected the experts’ reliance on them.”) (emphasis

in original).

22

reliable, evidence derived from that technique is not rele-

vant.”) (footnotes omitted). Thus, whenever expert testimony

is challenged based on Rule 702, a trial court must necessarily

undertake a reliability inquiry under Daubert and Rule 702

before it can assess the relevancy of the expert evidence.'’

Il. Daubert Provides an Objective Approach for Deter-

mining the Reliability of Al/ Expert Testimony.

The Court of Appeals strayed from this Court's holdings

in Daubert and Joiner when it concluded that the Daubert

factors did not apply to expert testimony based on training

and experience. Carmichael, 131 F.3d at 1436. In so doing,

the Court of Appeals’ undercut the clear holding in Daubert

that expert testimony must be reliable in order to be admissi-

ble.

A. The Daubert Factors: Ensuring That Expert Tes-

timony Rests on an Objective, Reliable Founda-

tion.

Rule 702 requires that trial courts act as gatekeepers to

assure the reliability and relevancy of expert testimony.

Joiner, 118 S.Ct. at 517. The reliability requirement in Rule

702 finds its locus in the phrase “scientific, technical, or other

specialized knowledge.” Daubert, 509 U.S. at 590. According

to Daubert:

“[K]nowledge” connotes more than subjective

belief or unsupported speculation. The term

“applies to any body of known facts or to any body

17 Because reliability will affect the relevance inquiry, it will

necessarily affect the balancing of probative value and prejudicial effect

under Fed. R. Evid. 403. As this Court has recently noted, probative value

and prejudicial effect are not determined in a factual vacuum. See Old

Chief v. United States, 117 $.Ct. 644, 652 (1997). Therefore, if there is a

more reliable methodology available, other than the one chosen by the

expert, the trial court must consider that factor in its Rule 403 balancing

analysis.

23

of ideas inferred from such facts or accepted as

truths on good grounds.”

Id. (quoting Wesster’s THirp InrerNaTionat Dictionary 1252

(1986)). The Court reasoned:

Proposed testimony must be supported by appropri-

ate validation — i.e., “good grounds,” based on what

is known. In short, the requirement that an expert's

testimony pertain to “scientific knowledge” estab-

lishes a standard of evidentiary reliability.

Daubert, 509 U.S. at 590. Thus, expert testimony must be

based on knowledge and must have at its foundation some

neutral principle or objective standard. Further, such evidence

“must be based on reasoning or a methodology which can

properly be applied to the facts in issue. Daubert, 509 U.S. at

592-93.

Daubert cautions trial courts that, in conducting their

gatekeeper function, “[mJany factors will bear on the

inquiry... . ” /d. at 593. The Court then offered several

“general observations” to assist trial courts in assessing

reliability and relevancy of expert testimony. /d. These gen-

eral observations included four particular factors for evaluat-

ing the reliability of the methodology or technique upon

which an expert seeks to rely in his or her testimony: (1)

testing and testability; (2) peer review and publication; (3) the

known or potential rate of error; and (4) “general acceptance”

in the relevant community of experts. /d. at 593-94.

In the Daubert framework, knowledge is objective,

whether it is scientific, technical, or of some other specialized

field. Objectivity is a quality that lives in close kinship to

trustworthiness. See Daubert, 509 U.S. at 590 n.9 (equating

“evidentiary reliability” with trustworthiness); see also Fed.

R. Evid. 702 (The Federal Rules of Evidence must be con-

strued so “that the truth may be ascertained. . . . "). Regard-

less whether an expert's ultimate conclusions are right or

wrong, Daubert requires that the expert rely on objectively

verifiable methodologies or neutral principles in arriving at a

conclusion. A putative expert's self-validating conclusions

24

cannot be tested, have no known or ascertainable rate of error,

and are not subject to meaningful review within the relevant

community of experts. As such, they do not constitute

“knowledge” and will not assist the trier of fact for purposes

of Rule 702.

Trial courts must consider the relevant factors, including

those outlined in Daubert, to determine whether proffered

expert testimony is based on objective knowledge. Training

and experience in a particular field does not necessarily

produce objective knowledge; the court may be faced with the

Nobel Laureate who believes he or she is infallible. Personal

experience may lead to knowledge, DePaepe, 141 F.3d at 719,

but that knowledge should include objective testing of the

opinion to be expressed. Even an experienced, well-trained,

and qualified expert is not permitted to bring subjective, self-

validating beliefs or speculation into the courtroom. /d. at

720.

B. The Application of the Daubert Factors to All

Types of Expert Testimony is Consistent With

This Court’s Approach to Scientific, Technical,

and Specialized Knowledge in a Variety of Con-

texts.

The importance of using objective principles and meth-

odologies cannot be overstated. In cases involving many div-

erse subjects, this Court has repeatedly emphasized the

importance of objective principles and methodologies as the

foundation for reliable expert evidence. Moreover, in many of

these same cases, the Court has looked to one or more of the

factors stated in Daubert to assess the objective reliability of

the evidence.

Four times in the last term alone, this Court considered

the reliability of certain forms of specialized knowledge.

Generally speaking, in each of these cases, the Court was

troubled by the lack of some objective foundational element

for the evidence in question. Most recently, in Bragdon v.

Abbott, 118 S.Ct. 2196, 2210 (1998), the Court applied the

25

Americans With Disabilities Act (ADA) in a discrimination

claim brought by a plaintiff infected with the human immu-

nodeficiency virus against a dentist who had refused to fill the

plaintiff's cavity in his office. Significantly, the Court stated

that:

As a health care professional, [the dentist] had a

duty to assess the risk of infection based on the

objective, scientific information available to him

and others in his profession. His belief that a signif-

icant risk existed, even if maintained in good faith,

would not relieve him from liability.

Id. at 2210 (emphasis added). Later, the Court explained that:

Scientific evidence and expert testimony must have

a traceable, analytic basis in objective fact before it

may be considered on summary judgment.

Id. at 2212 (emphasis added) (citing Joiner, 118 S.Ct. at 518,

519).'* This Court spoke with deliberate breadth in demand-

ing that the dentist’s medical evidence be objective. Further,

in examining whether the dentist’s refusal to treat the HIV

infected patient was based on reasonable grounds, the Court

noted that “[a] health care professional who disagrees with

the prevailing medical consensus may refute it by citing a

credible scientific basis for deviating from the accepted

norm.” /d. at 2211 (emphasis added). To be sure, the Court

was applying the substantive standards of the ADA, not Rule

702; but, the Court emphasized the same concerns as it did in

Daubert: the reliability of the theory or technique, as demon-

strated by objective factors, including (among other things)

the level of acceptance in the relevant community of experts.

United States v. Scheffer, 118 S.Ct. 1261 (1998), con-

veyed the same concern: promoting objective expert evidence

and barring expert testimony based on the witness’ subjective

opinions. The Court noted that a polygraph operator testifying

'S Justices Stevens and Breyer concurred, adding that “{the dentist]

relied on data that was inconclusive and speculative at best... .” /d. at

2213 (citing Joiner, 118 S.Ct. at 512).

26

as an expert witness “can only supply the jury with another

opinion, in addition to their own, about whether the witness

was telling the truth.” /d. at 1267. The polygraph operator

“forms an opinion of the subject's truthfulness by comparing

the physiological reactions to each set of questions.” /d. at

1267 n.9. Part of the danger of such evidence, as the Court

correctly pointed out, is that “the aura of infallibility attend-

ing polygraph evidence can lead jurors to abandon their duty

to assess credibility and guilt.” /d. In addition, a polygraph

operator's expert testimony that the subject of the test was or

was not lying is inherently subjective. See Brief for the

United States, filed in United States v. Scheffer, 118 S.Ct.

1261 (1998) (“the polygrapher conducting the examination

injects a high degree of subjectivity into the examination.”).'°

In part because of the subjective nature of this testimony, “the

scientific community remains extremely polarized about the

reliability of polygraph techniques.” Scheffer, 118 S.Ct. at

1265 (citing | D. Faigman, D. Kaye, M. Saks & J. Sanders,

Mopern Screntivic Eviwwence 565 n.14-.20 and § 14-3.0

(1997)). The Court's principal opinion and Justice Stevens’

dissenting opinion each considered the reliability of the poly-

graph technique, looking to virtually the same reliability

factors as those articulated in Daubert. The Court's principal

opinion examined the level of acceptance in the relevant

expert communities, the volume of published studies on the

subject, the testing which has been performed as to the

reliability of polygraph methods, and the potential rate of

error of current polygraph techniques. Scheffer, 118 S.Ct. at

1265 & n.6, 1267 n.9. Justice Stevens’ dissenting opinion

considered some of these same issues in great depth. /d. at

19 See generally Confronting the New Challenges, supra, 108 Harv.

L. Rev. at 1498 (Specifically addressing the subjectivity of polygraph

evidence, explaining that: “(polygraph evidence boils down to the

testimony of a particular person that, in his or her expert opinion, another

person is or is not lying. If the polygraph evidence were admitted,

the expert would present this opinion as the result of a scientific

procedure... . ”).

27

1271-72 & nn.5-6, 1276 & n.20-22, 24-27. The Court was

rightly concerned with the reliability of this evidence. And,

both the Court's principal opinion and Justice Stevens’ dis-

senting opinion appropriately considered the testing. publica-

tion, error rate, level of general acceptance in assessing the

probative value of polygraph evidence.

In General Electric Co. v. Joiner, this Court applied the

abuse of discretion standard in reviewing the trial court's

exclusion of expert testimony under Daubert and Rule 702.

The Court noted that, while Daubert focused on methodology

not conclusions, the two are not entirely distinct. If an

expert's opinion is connected to the existing data only by the

expert's insistence that there is such a connection, the trial

court is within its discretion in excluding the opinion. See

Joiner, 118 S.Ct. at 519. Joiner reaffirmed this Court's com-

mitment to the Daubert framework as the analysis required

under Rule 702. While Joiner did not expressly refer to the

need for objective data, it is clear that the Court was con-

cerned with subjective, self-serving assertions of experts tak-

ing the place of reliable information. /d.

In Kansas v. Hendricks, 117 S.Ct. 2072 (1997) the Court

addressed the Kansas Sexually Violent Predators Act, Kan.

Stat. Ann. § 59-29a01, stepping cautiously into a debate

where “psychiatric professionals are not in complete har-

mony. ...” /d. at 2081 n.3. The Court noted that the law and

the mental health community may use similar terminology to

describe different concepts, and that, therefore, a legislative

finding that pedophilia is a mental illness may be made even

while the mental health community may be far from reaching

that same conclusion. In dissent, Justice Breyer, joined by

Justices Stevens, Souter, and Ginsberg, reflected that “[t}he

psychiatric debate . . . helps to inform the law by setting the

bounds of what is reasonable... . ” /d. at 2088 (Breyer, J.,

dissenting). In determining the reasonableness of the statute

passed by the Kansas Legislature, both the majority and

dissenting opinions reviewed the current level of consensus in

the relevant community of experts. In essence, the Justices

28

considered “general acceptance” or the lack thereof as a

factor in their analyses, weighing it among other factors.

Even though the psychiatric subject matter in this case was

arguably not scientific in nature, neither the majority nor the

dissent had any difficulty evaluating the reasonableness of the

Kansas statute based, in part, on the psychiatric information

placed before the Court.2°

Together, these cases demonstrate this Court's very

appropriate concern for requiring an objective basis fer all

forms of specialized knowledge used as evidence in the fed-

eral courts, regardless whether that knowledge can be neatly

pigeon-holed into a “scientific” category. Moreover, these

cases illustrate the usefulness of the four reliability criteria

discussed in Daubert as parts of a common sense framework

for evaluating the reliability of specialized knowledge.

20 See Foucha v. Louisiana, 504 U.S. 71, 87 (1992) (O'Connor. ies

concurring) (“science had not reached a finality of judgment”) (quoting

Jones v. United States, 463 U.S. 354, 365 n.13 (1983)). Dissenting in

Foucha, Justice Thomas, joined by the Chief Justice, and Justice Scalia

reflected in part their concern that the psychiatric community was still too

divided as to what constitutes mental illness to allow an undisputably

dangerous insanity acquittee to be released. Jd. at 109 (Thomas. J.

dissenting). As in Hendricks, the Court's focus was on the objective

reliability of the psychiatric evidence. And, as in Hendricks. the Court

considered the degree of consensus in the relevant community of experts,

among other factors, to gauge the reliability of the evidence. See generally

Barefoot v. Estelle, 463 U.S. 880, 916 (1983) (Blackmun. J. dissenting).

Justice Blackmun’s dissent in Barefoot, in many respects, is a prototype for

this Court's later decision in Daubert, focusing on error rate, general

acceptance, and testing, and drawing heavily from peer reviewed

publications in the mental health field. /d. at 916-29. Even though the

psychiatric and psychological evidence at issue in Foucha and Barefoot

was not “pure” science in the Newtonian sense, neither Justice Thomas. in

Foucha, nor Justice Blackmun, in Barefoot, had any difficulty applying

Daubert-like factors in evaluating the reliability of the theory or technique

In issue.

29

C. The Daubert Factors Represent a Flexible Inquiry

Committed to the Sound Discretion of the Trial

Court, Not a Definitive Checklist or Test.

Importantly, the Daubert Court expressly stated that, in

Suggesting the four factors, “we do not presume to set out a

definitive checklist or test... .” /d. at 593. In the proceedings

on remand in Daubert, the Ninth Circuit reasoned that the

Daubert factors were “illustrative rather than exhaustive.”

Daubert 11, 43 F.3d at 1316-17. In some cases, other factors

may apply. /d. at 1317 (noting that “[o}ne very significant fact

to be considered is whether the experts are proposing to

testify about matters growing naturally and directly out of

research they have conducted independent of the litigation, or

whether they have developed their opinions expressly for the

purpose of testifying.”). And, depending on the case, some of

the factors may be entitled to less weight or be entirely

inapplicable. /d. at 1317.

This sort of flexibility is inherent and pervasive in

Daubert’s reasoning. Before Daubert, the Frye test allowed

judges to defer to the scientific community to assess when a

principle or technique was sufficiently reliable to be admitted.

Daubert replaced that structure with one that required the

federal district courts to determine whether experts’ opinions

have a reliable basis in the knowledge and experience of their

discipline. Daubert, 509 U.S. at 592. In this inquiry, a trial

court must necessarily have broad discretion to admit or

exclude expert testimony under Rule 702 and Daubert.

Joiner, 118 S.Ct. at 517.

Here, the Court of Appeals misapplied the Daubert fac-

tors, as though they were merely parts of a checklist. The

court concluded that the application of Daubert’s factors was

an all-or-nothing proposition — either they all applied

(because the evidence was found to be “scientific”) or none of

them did (because the evidence was found to be based on

training and experience). This absolutist view of Daubert is

wholly inconsistent with the flexible, discretionary inquiry

required by Daubert and Joiner.

30

In cases where an expert bases his or her opinion in part

on practical, real-world experience, not all of the Daubert

factors may apply with the same force and effect as they

would to, for example, testimony based on a meta-analysis of

epidemiological studies. Engineers in a range of technical

subfields do, in fact, have peer reviewed publications avail-

able to expose their theories to criticism outside of a litigation

venue. They can test their theories by employing appropriate

methodology, assess the rate of error for their analytical

approach, and describe whether that approach is generally

accepted in the relevant community of experts.

CONCLUSION

This Court should reaffirm its holding in Daubert, apply-

ing Daubert's flexible reliability standard to all types of

expert testimony as part of the inquiry mandated by Rule 702.

Respectfully submitted,

Hucu F. Youna, Jr.* Mary A. WeLLs

Propuct Liasmiry Apvisory Counsel of Record

Councit, Inc. L. Micwaet Brooks, Jr.

1850 Centenniai Park Drive, Wetts, ANperson &

Suite 510 Race LLC

Reston, VA 22091

(703) 264-5300

Davm F. Zou* (303) 830-1212

Donatp D. Evans* Kevin Quiniey*

CHEMICAL MANUFACTURERS GeNeRAL COUNSEL

ASSOCIATION MEDMARC

1300 Wilson Boulevard 4000 Legato Road, Suite 800

Arlington, VA 22209 Fairfax, VA 22033

(703) 741-5000 (703) 273-1995

Rosi S. Conrap*

NaTIONAL CHAMBER

Lrrication Center, INc.

1615 “H” Street NW

Washington, D.C. 20062

(202) 463-5337

1700 Broadway, Suite 1850

Denver, CO 80290

* Of Counsel

App. 1

APPENDIX A

CORPORATE MEMBERS OF THE

PRODUCT LIABILITY ADVISORY COUNCIL

3M

ACRISON, Inc.

Allegiance Healthcare

Corporation

Aluminum Company of

America

American Automobile

Manufacturers Assn.

American Home Products

Corporation

American Suzuki Motor

Corporation

Andersen Corporation

Anheuser-Busch Companies,

Inc.

Appleton Papers, Inc.

Atlantic Richfield Company

BASF Corporation

Baxter International, Inc.

Bayer Corporation

Becton-Dickinson &

Company

Beech Aircraft Corporation

BIC Corporation

Black & Decker (U.S.) Inc.

BMW of North America, Inc.

Boeing Company, The

Bombardier Inc.,

Recreational Products

Bridgestone/Firestone, Inc.

Briggs & Stratton

Brown-Forman Corporation

Budd Company, The

C.R. Bard, Inc.

Caterpillar, Inc.

CBS Corperation

Celanese Ltd.

Chrysler Corporation

Clark Material Handling

Company

Coleman Company, Inc., The

Continental General Tire,

Inc.

Coors Brewing Company

Corning Incorporated

Dana Corporation

Deere & Company

Digital Equipment

Corporation

Dow Chemical Company,

The

E. & J. Gallo Winery

Eaton Corporation

Eli Lilly and Company

Emerson Electric Co.

Estee Lauder Companies

Exxon Corporation, U.S.A.

FMC Corporation

Ford Motor Company

Fortune Brands Inc.

Freightliner Corporation

Gates Corporation, The;

Stant Corporation

General Electric Company

App. 2

General Motors Corporation

Georgia-Pacific Corporation

Glaxo Wellcome Inc.

Goodyear Tire & Rubber

Company, The

Great Dane Limited

Partnership

Guidant Corporation

Harley-Davidson Motor

Company

Harnischfeger Industries Inc.

Heil Company, The

Hoechst Marion Roussel, Inc.

Honda North America, Inc.

Hyundai Motor America

International Paper Company

Isuzu Motors America, Inc.

Johnson & Johnson

Johnson Controls, Inc.

Joseph E. Seagram & Sons,

Inc.

Kawasaki Motors Corp.,

U.S.A.

Kolcraft Enterprises, Inc.

Kraft Foods, Inc.

Loewen Group International,

Inc.

Lorillard Tobacco Company

Lucent Technologies Inc.

Mack Trucks, Inc.

Mazda (North America), Inc.

Medtronic, Inc.

Melroe Company

Mercedes-Benz of North

America, Inc.

Michelin North America, Inc.

Miller Brewing Company

Mitsubishi Motors R. & D.

of America, Inc.

Motor Coach Industries

International, Inc.

Motorola, Inc.

Navistar International

Transportation Corp.

Nissan North America, Inc.

O.F. Mossberg & Sons, Inc.

Otis Elevator Co.

Owens-Corning Fiberglas

Corporation

PACCAR Inc.

Panasonic Company

Pentair, Inc.

Pfizer Inc.

Pharmacia and Upjohn, Inc.

Philip Morris Companies,

Inc.

Porsche Cars North America,

Inc.

Procter & Gamble Co., The

Raymond Corporation, The

Rheem Manufacturing

RJ Reynolds Tobacco

Company

Rover Group, Ltd.

Schindler Elevator Corp.

Sears, Roebuck and Company

Shell Oil Company

Sherwood, a Division

of Harsco Corp.

Siemens Energy &

Automation, Inc.

Smith & Nephew North

America

App. 3

SmithKline Beecham

Corporation

Snap-on Incorporated

Sofamor Danek Group, Inc.

Solutia Inc.

Sturm, Ruger & Co., Inc.

Subaru of America

Terex Corporation

Textron Inc.

Thomas Built Buses, Inc.

Toro Company, The

Toshiba America

Incorporated

Toyota Motor Sales, USA,

Inc.

TRW Inc.

UST (U.S. Tobacco)

Volkswagen of America, Inc.

Volvo Cars of North

America, Inc.

Vulcan Materials Company

Whirlpool Corporation

Yamaha Motor Corporation,

U.S.A.