Amicus Curiae Brief — Kumho Tire Co. v. Carmichael

Oo)

:

i

4

;

No. 97-1709 AUG 25 i995

IN THE

Supreme Court of the Hnited eink

October Term, 1997

KUHMO TIRE COMPANY, LTD.., ef al.,

Petitioners,

Vv.

PATRICK CARMICHAEL, et ai.,

Respondents.

On Wnit of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF AMICI CURIAE OF THE

WASHINGTON LEGAL FOUNDATION

AND THE MANUFACTURERS ALLIANCE

IN SUPPORT OF PETITIONERS

Daniel J. Popeo Arvin Maskin

Paul D. Kamenar (Counsel of Record)

WASHINGTON LEGAL Konrad L. Cailteux

FOUNDATION John H. Bae

2009 Massachusetts Ave. N.W. Theodore E. Tsekerides

Washington, D.C. 20036 Wei_, GotsHaL & Mances, LLP

(202) 588-0302 767 Fifth Avenue

New York, N.Y. 10153

(212) 310-8000

Date: August 25, 1998

CASILLAS PRESS ¢ 1717 K STREET, N.W. ¢ WASHINGTON, D.C. 20036 © (202) 223-1220

:

579 (1993), is explicitly limited to the analysis of scientific

expert testimony?

, is

I. BECAUSE OF THE POTENTIAL IMPACT

EXPERT TESTIMONY CAN HAVE ON

JURORS, TRIAL COURTS HAVE

TRADITIONALLY SCRUTINIZED ALL

EXPERT TESTIMONY TO ENSURE ITS

ETE FeeGriscdctescesveces

A. By Its Very Nature And

Purpose, Expert Testimony Has

The Potential To Exert Undue

Iafteemce Om Jurors 2... we ees

B. Daubert Confirmed The

Gatekeeping Role That Trial

Courts Have Traditionally

Played In Ensuring The

Reliability Of All Expert

ER a a

iv

fl. THE ELEVENTH CIRCUIT ERRED

IN RULING THAT DAUBERT’S

TEACHINGS ARE LIMITED TO THE

EVALUATION OF SCIENTIFIC

ee 15

A. The Court's Daubert Analysis

Applies To All Expert

Evidence, Not Just Scientific

Frere rrr ruse 15

B. By Reading Daubert To Apply

Only To Scientific Evidence,

The Eleventh Circuit

Misconstrued The Teachings of

RAS FP Pree 2 18

COMCLAISIOM 0 ccc cece cee seenes 21

TABLE OF AUTHORITIES

CASES:

Carmichael v. Samyang Tires, Inc., 923 F. Supp.

1514 (S.D. Ala. 1996), rev'd, 131 F.3d 1433

(11th Cir. 1997), cert. granted, US. ,

SE ee 3,4

Carmichael v. Samyang Tires, Inc.,

No. 93-0860-CB-S,

Order (S.D. Ala. June 5, 1996) ........ 4, 20

Chateaugay Ore & Iron Co. v. Blake,

ne a 12

Congress & Empire Spring Co. v. Edgar,

Lg SI a ee 12

Cummins v. Lyle Indus. ,

93 F.3d 362 (7th Cir. 1996) ............ 14

Daubert v. Merrell Dow Pharmaceuticals, Inc. ,

ee ES hs a tak + @ 46.8 os passim

Frye v. United States,

a 12

In re “Agent Orange” Prod. Liab. Litig.,

611 F. Supp. 1223 (B.D.N.Y. 1985),

aff'd, 818 F.2d 187 (2d Cir. 1987) ........ 8

In re Air Crash Disaster at New Orleans,

Louisiana, 795 F.2d 1230 (Sth Cir. 1986) . 10, 13

vi

Larsen v. International Bus. Mach. Corp. ,

87 F.R.D. 602 (B.D. Pa. 1980) .........

Peitzmeier v. Hennessy Indus. Inc., 97 F.3d 293

(8th Cir. 1996), cert. denied, U.S. __,

117 S. Ce. 19S2 (19ST)... ww ee ee eee

Peters v. Five Star Marine Service,

898 F.2d 448 (Sth Cir. 1990) ..........

Renaud v. Martin Marietta Corp., Inc.,

972 F.2d 304 (10th Cir. 1992) ..........

Stillwell & Bierce Mfg. Co. v. Phelps,

130 U.S. 520 (1889)... 1. ee ee ees

Turpin v. Merrell Dow Pharmaceuticals, Inc.,

959 F.2d 1349 (6th Cir. 1992) ..........

United States v. Amaral,

488 F.2d 1148 (9th Cir. 1973)... .......

United States v. Downing,

753 F.2d 1224 (3d Cir. 1985) ..........

United States v. Marabelles,

724 F.2d 1374 (9th Cir. 1984) ..........

United States v. Scheffer, a

118 S. Ct. 1261 (1998) ......-. 20s

Watkins v. Telsmith, Inc.,

121 F.3d 984 (Sth Cir. 1997) .........

vii

RULES AND OTHER AUTHORITIES:

MC «6s ou A'S 6 0 4b 0s w aie wa 11

8S EE eee eae passim

a oe 12

EE a i as OC ere oan 12

I kG pica San Ae gg b's we wid 12

Berger, A Relevancy Approach To Novel

Scientific Evidence, 115 F.R.D. 89 (1987) ... 10

Cooper, Bennett & Sukel, Complex Scientific

Testimony: How Do Jurors Make Decisions ?,

20 LAW & HUMAN BEHAVIOR 379 (1996)... . . 7

Giannelli, The Admissibility of Novel Scientific

Evidence: Frye v. United States, a Half Century

Later, 80 CoLum. L. REV. 1197 (1980) ...... 8

Gross, Expert Evidence, 1991 Wis. L. REV. 1113 . 9-10

Hand, Historical & Practical Considerations

Regarding Expert Testimony, 15 HARV. L. REV.

40 (1901)

Laser, Inconsistent Gatekeeping in Federal Courts:

Application of Daubert v. Merrell Dow

Pharmaceuticals, Inc. to Nonscientific Expert

Testimony, 30 Loy. L.A. L. REV. 1379

ED ovate kk ow ao Re by Wee oo 0 wa 15

Expert Witness Found Credible By Most Jurors,

NATL. L.J., Feb. 22, 1993, at $4, col. |

viii

Saks & Van Duizend, The Use of Scientific Evidence

In Litigation (1983) 2... 6 ee 8

Tribe, Trial By Mathematics: Precision and Ritual

In The Legal Process, 84 HARV. L. REV.

SSE CE ie dewieweb ee endeveavesias 8

Weinstein, Improving Expert Testimony, 20 U. RICH.

L. REV. 473 (1986) 2.0... eee eee eee 10

29 Wright & Gold, Federal Practice & Procedure

TT ee 8

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

No. 97-1709

KUMHO TIRE COMPANY, LTD., ef ai.,

Petitioners,

v.

PATRICK CARMICHAEL, ef ai.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF OF THE WASHINGTON LEGAL FOUNDATION

AND THE MANUFACTURERS ALLIANCE AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICI CURIAE'

The Washington Legal Foundation ("WLF") is a

non-profit public interest law and policy center based in

Washington, D.C., with supporters in all fifty states. WLF

‘Pursuant to Supreme Court Rule 37.6, amici hereby

indicate that no counsel for a party in this case authored this

amicus brief. No parties or entities, other than amicus

Washington Legal Foundation, its supporters, or counsel,

contributed financially to the preparation or submission of this

brief. The brief is being filed with a blanket written consent of

the parties for all amici which has been lodged with the Clerk.

2

regularly appears before federal and state courts promoting

economic liberty, free enterprise principles, and a limited

and accountable government. WLF's Legal Studies

Division also publishes monographs and other publications

on these topics.

In particular, WLF has devoted substantial

resources over the years through litigation and publishing

to promote civil justice reform, including tort reform.

WLE appeared as an amicus curiae in General Electric Co.

v. Joiner, _U.S.__, 118 S. Ct. 512 (1997) and Daubert

v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

(1993), and WLF’s Legal Studies Division published a

monograph on the impact of the Daubert decision.

Charrow & Bernstein, Scientific Evidence In The

Courtroom: Admissibility And Statistical Significance After

Daubert (Washington Legal Fndn. 1994).

The Manufacturers Alliance is a non-profit

research organization supported by more than 500

manufacturing companies from a broad range of industries.

Its members range in size from relatively small, single-

product manufacturers with annual sales revenues in the

$30 million-$100 million range to very large, highly

diversified manufacturers with annual sales revenues

exceeding $1 billion. Its mission is to assist its members

in improving productivity by stimulating investment in

technology and by encouraging innovations, thereby

enhancing its members’ worldwide competitiveness.

Amici believe that they can bring a broader

perspective on the issues presented in this case, which will

assist the Court in deciding this case in such a way as to

give clear guidance to courts reviewing admissibility

decisions regarding all expert evidence.

3

STATEMENT OF THE CASE

Amici curiae are, in the interest of brevity,

omitting any detailed statements of the facts of this case.

Amici adopt by reference the statement of facts set forth in

Petitioners’- Brief.

In brief, Respondents commenced an action against

the Petitioners in the United States District Court for the

Southern District of Alabama, claiming that a tire

manufactured by Petitioner Kumho Tire Company, Ltd.

("Kumho") failed as a result of a defect, causing injuries to

the Respondents. In support of their claim that the tire was

defective, the Respondents offered the testimony of a

mechanical engineering expert, Dennis Carlson. Without

even having seen the tire, Carlson issued an opinion that

the tire failed as a result of either a manufacturing defect

or a design defect. Carlson, however, could not

specifically identify the defect.

Upon completion of discovery, Petitioners filed

motions to exclude Carlson’s testimony and for summary

judgment. The District Court, applying the gatekeeping

principles enunciated by this Court in Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)

("Daubert"), found Carlson's testimony too unreliable and

speculative and, consequently, excluded his testimony.

Carmichael v. Samyang Tires, Inc., 923 F. Supp. 1514,

1519-22 (S.D. Ala. 1996). The District Court then granted

the Petitioners’ motion for summary judgment. Id. at

1523-24. Respondents subsequently moved for

reconsideration. On June 5, 1996, the District Court

granted the motion for rehearing and affirmed its previous

decision with additional analysis, stating that it had applied

the Daubert factors in a manner that "complied with both

4

the letter and spirit of Daubert." Carmichael v. Samyang

Tires, Inc., No. 93-0860-CB-S, Order at 4-5 (S.D. Ala.

June 5, 1996). The District Court also stated that the

factors identified in Daubert were appropriately used to

"gauge the reliability of Carlson’s methods."* Id. at 4.

The Respondents appealed the District Court's

judgment to the United States Court of Appeals for the

Eleventh Circuit. The Court of Appeals reversed.

Carmichael v. Samyang Tire, Inc., 131 F.3d 1433, 1436

(1ith Cir, 1997). Reasoning that the Supreme Court's

decision in Daubert was explicitly limited to scientific

experts, the Court of Appeals analyzed the testimony of

Respondents’ expert to determine whether it was based on

scientific or non-scientific principles. Finding that his

testimony was based on personal experience and skill and

not scientific principles, the Eleventh Circuit found that the

District Court had erred by applying Daubert to the

testimony of Respondents’ tire expert. Jd.

SUMMARY OF ARGUMENT

It is beyond debate that expert witnesses play an

important role in litigation -- they help the fact-finding

mission by assisting the trier of fact to understand complex

evidence that otherwise may not be comprehensible to a lay

person. Because expert testimony involves areas that are

>The District Court also considered other factors outside of

the four identified in Daubert, but ultimately applied the four

Daubert criteria because it “found Daubert factors appropriate,

analyzed them, and discerned no competing criteria sufficiently

strong to outweigh them." Carmichael v. Samyang Tires, Inc.,

No. 93-0860-CB-S, Order at 4 (S.D. Ala. June 5, 1996).

5

typically outside the realm of knowledge and experience of

the lay person, however, there is a danger that lay jurors

may not be able to fully comprehend and evaluate the

expert testimony before them. Moreover, because lay

jurors may have difficulty in understanding complex expert

testimony, they may also give unwarranted deference to the

accuracy of opinions of experts with impressive credentials.

Thus, in this day of paid experts where there may be

greater pressure to render opinions that tend to coincide

more with the litigant-customer’s legal position rather than

the truth, an unchecked expert can become a dangerous

roadblock to the jury’s search for truth.

For these reasons, courts have historically

recognized the importance of the trial court’s gatekeeping

role in ensuring the reliability of an expert's opinions

before allowing a jury to hear them. The enactment of the

Federal Rules of Evidence did not alter this fundamental

gatekeeping role of the trial court. Indeed, Rule 702 of the

Federal Rules of Evidence requires that, in order for expert

testimony to be admissible, it must "assist the trier of fact."

And, it is axiomatic that no expert opinion can assist the

trier of fact unless the opinion is reliable.

Nor can any distinction justifiably be drawn

between "scientific" expert testimony and other "non-

scientific" expert testimony. All expert testimony, whether

scientific, technical or otherwise, is deemed to be expert

opinion because it requires a certain level of knowledge and

understanding that is beyond the reach of the lay juror.

Thus, the concerns associated with the lay juror’s potential

inability to adequately evaluate the reliability of an expert's

opinions, and the arguable deference that lay jurors may

give to such opinions, remain constant, whether the

6

proffered expert testimony is based on science, technical

knowledge, or mere experience and training.

That the Court in Daubert discussed only the

scientific opinions before it in that case does not in any

way alter the express provisions of Rule 702 and the

gatekeeping functions of the district court. Indeed, the

Court in Daubert expressly confirmed the gatekeeping role

of district courts. Moreover, the Court stated that it was

interpreting and applying Rule 702 in connection with a

scientific expert only because that was the case that was

before it. The Court specifically noted, however, that Rule

702 applied to all expert evidence, not just novel scientific

expert evidence. Consequently, the Eleventh Circuit erred

when it found that Daubert applied only to scientific

experts and reversed the District Court solely because it

had applied the four criteria identified in Daubert. While

the District Court was not required to consider only the

four Daubert factors in evaluating the reliability of the

testimony of Respondents’ expert, its decision to do so was

not in error.

In sum, because all expert testimony, whether

scientific, technical or otherwise, shares a common

denominator -- that they involve knowledge and

understanding that are beyond the ordinary knowledge and

experience of the lay jury -- which forms the foundation of

the need for scrutiny, the trial court must act as a

gatekeeper for all expert evidence, not just scientific

evidence. Accordingly, the Eleventh Circuit, which found

that non-scientific expert opinions should not be subject to

the Daubert analysis, should be reversed.

7

ARGUMENT

I, BECAUSE OF THE POTENTIAL IMPACT

EXPERT TESTIMONY CAN HAVE ON

JURORS, TRIAL COURTS HAVE

TRADITIONALLY SCRUTINIZED ALL

EXPERT TESTIMONY TO ENSURE ITS

RELIABILITY

A. By Its Very Nature And

Purpose, Expert Testimony

Has The Potential To Exert

Undue Influence On Jurors

Expert witnesses undeniably play an important

function in many lawsuits. They are the avenue by which

the court and the finder of fact can be properly educated so

that they can evaluate the evidence and decide the issues

before them. Because of this important role expert

witnesses play in litigation, they can become a powerful,

adversarial tool for litigants. Indeed, studies have shown

that litigants who utilized expert witnesses are often more

successful in the outcome of the lawsuits. See, e.g., Expert

Witnesses Found Credible By Most Jurors, NATL. L.J.,

Feb. 22, 1993, at $4, col. 1 ("jurors in both civil and

criminal cases said the experts whose testimony they heard

were both credible and influential in the outcome”);

Cooper, Bennett & Sukel, Complex Scientific Testimony:

How Do Jurors Make Decisions?, 20 LAW & HUMAN

BEHAVIOR 379, 387 (1996) ("more mock jurors found for

the plaintiff when his case was presented with highly

complex arguments by an expert with high credentials").’

Experts, however, by nature, testify about subject

matters that are outside of the ordinary understanding and

knowledge possessed by the lay juror. For that reason, the

jurors may not possess the capability to test the expert

opinions they hear against their own everyday experience

and common sense. Moreover, because experts tend to

possess impressive credentials, there is justifiable concern

that jurors may extend unjustified deference to the experts’

opinions. See 29 Wright & Gold, Federal Practice &

Procedure § 6264, at 182-83 (1997); Giannelli, The

Admissibility of Novel Scientific Evidence: Frye v. United

States, a Half Century Later, 80 COLUM. L. REV. 1197,

1237 (1980) ("The major danger of scientific evidence is its

potential to mislead the jury; an aura of scientific

infallibility may shroud the evidence and thus lead the jury

to accept it without critical scrutiny."); Tribe, Trial By

Mathematics: Precision and Ritual In The Legal Process,

84 HARV. L. REV. 1329, 1334 (1971) ("[T]he very

mystery that surrounds mathematical arguments -- the

relative obscurity that makes them at once impenetrable by

the layman and impressive to him -- creates a continuing

risk that he will give such arguments a credence they may

not deserve and a weight they cannot logically claim.").

*See also Saks & Van Duizend, The Use of Scientific

Evidence In Litigation 5-6 (1983) (citing results of O. Schroeder,

The Forensic Science In American Criminal, Justice: A Legal

Study Concerning The Forensic Sciences Personnel (1977)) (over

70 percent of judges and attorneys surveyed believed that juries

accorded expert scientific evidence more credibility than other

evidence).

9

Thus, as the Ninth Circuit Court of Appeals noted

in United States v. Amaral, 488 F.2d 1148, 1152 (9th Cir.

1973), because "[s]cientific or expert testimony” has an

“aura of special reliability and trustworthiness", it could

“create a substantial danger of undue prejudice or confusing

the issues or of misleading the jury". This concern was

also clearly articulated by Judge Jack Weinstein in In re

“Agent Orange” Prod. Liab. Litig., 611 F. Supp. 1223,

1244 (B.D.N.Y. 1985), aff'd, 818 F.2d 187 (2d Cir.

1987), where the court stated: “The jury will not be

permitted to be misled by the glitter of an expert's

accomplishments outside the courtroom. "*

Adding to the concern that jurors may be unduly

influenced by an expert's testimony is the fact that expert

witnesses are typically paid witnesses. Indeed, testifying

is a major source of income, if not livelihood, for many

expert witnesses. As Professor Samuel R. Gross of the

University of Michigan Law School explained:

Because experts are paid to testify,

and because they can be hired repeatedly

to work on cases with similar or identical

issues, they can become professional

*As long ago as 1901, Judge Learned Hand raised concerns

over the ability of lay fact finders to fully comprehend complex

expert evidence. See Hand, Historical & Practical

Considerations Regarding Expert Testimony, 15 Harv. L. REV.

40, 54 (1901) ("The whole object of the expert is to tell the jury,

not facts, as we have seen, but general truths derived from his

specialized experience. But how can the jury judge between two

Statements each founded upon an experience confessedly foreign

in kind to their own? It is just because they are incompetent for

such a task that the expert is necessary at all.").

10

witnesses. Many do just that -- they

consumers who buy that testimony; those

who do not will not get hired. In some

cases experts may distort their views to

suit the interests of their clients, perhaps

even lie outright... .

Gross, Expert Evidence, 1991 Wis. L. REV. 1113, 1131-32.

See also Berger, A Relevancy Approach To Novel Scientific

Evidence, 115 F.R.D. 89, 91 (1987) ("It is quite apparent

that experts are readily available to present essentially

frivolous theories . . . ."); Weinstein, Jmproving Expert

Testimony, 20 U. Rich. L. Rev. 473, 482 (1986) ("An

expert can be found to testify to the truth of almost any

factual theory, no matter how frivolous . . . .").

This concern was repeated by the Fifth Circuit

Court of Appeals in In re Air Crash Disaster at New

Orleans, Louisiana, 795 F.2d 1230, 1233 (Sth Cir. 1986),

where the court stated: “Our point is that the ultimate

issue in such cases [products liability cases] can too easily

become whatever an expert witness says it is, and trial

courts must be wary lest the expert become nothing more

than an advocate of policy before the jury." See also

Turpin v. Merrell Dow Pharmaceuticals, Inc., 959 F.2d

1349, 1352 (6th Cir. 1992) ("[C}lose judicial analysis of

such technical and specialized matter is necessary not only

because of the likelihood of juror misunderstanding, but

also because expert witnesses are not necessarily always

unbiased scientists.").

Thus, the role expert witnesses play in litigation

can be profound. While their intended purpose is clearly

to aid the trier of fact, for the reasons discussed, experts

have the potential to stand in the way of helping the jury do

its job if their testimony, whether scientific, technical or

otherwise, is not reliable.°

B. Daubert Confirmed The

Gatekeeping Role That Trial

ne ap agg Anna

Played In _ Ensuring

Satie Cf An tecen

Testimony

Against the backdrop of the potential impact expert

witnesses can have in litigation, it is no surprise that courts

and legal scholars long ago recognized the importance of

screening all expert testimony to ensure that it is reliable.

If proffered testimony is not reliable or its methodology is

not sound, it is clear that the testimony will not assist the

‘Indeed, in Daubert the Court implicitly acknowledged the

potential danger of expert testimony misleading jurors when it

reminded trial courts that they should also be mindful of Fed. R.

Evid. 403 when assessing the proffer of expert testimony.

Daubert, 509 U.S. at 595 ("Expert evidence can be both

powerful and quite misleading because of the difficulty in

evaluating it. Because of this risk, the judge in weighing

possible prejudice against probative force under Rule 403 of the

present rules exercises more control over experts than over lay

witnesses.’") (quoting Weinstein, Rule 702 of the Federal Rules

of Evidence Is Sound; It Should Not Be Amended, 138 F.R.D.

631, 638 (1991)).

12

jury.° Consequently, it has long been the role of trial

courts to screen expert testimony to ensure it is reliable and

will assist the trier of fact. For example, in Stillwell &

Bierce Mfg. Co. v. Phelps, 130 U.S. 520, 527 (1889), the

Court recognized that whether an expert offered

“qualifications and knowledge" that could offer reliable

help in a particular case was “a preliminary question for

the judge presiding at trial." See also Congress & Empire

Spring Co. v. Edgar, 99 U.S. 645, 658 (1879);

Chateaugay Ore & Iron Co. v. Blake, 144 U.S. 476, 484

(1892).

The seminal case of Frye v. United States, 293 F.

1013 (D.C. Cir. 1923), similarly recognized the role that

the trial court must play in screening expert evidence to

insure that only reliable testimony is presented to the trier

of facts. While the specific substantive standard that the

Frye court established -- whether the expert’s theory was

“generally accepted" within the relevant scientific

community -- was displaced by the enactment of the

Federal Rules of Evidence (Daubert, 509 U.S. at 589),

significantly, the Rules did not alter Frye’s threshold

requirement that the trial court evaluate the expert's

testimony to ensure its reliability before allowing it to go

to the jury.

Indeed, the Court’s decision in Daubert clearly

articulated the gatekeeping role of the district court under

*As Justice Thomas observed in United States v. Scheffer,

__ US. __, 118 S. Ct. 1261, 1265 (1998), “the exclusion

of unreliable evidence is a principal objective of many

evidentiary rules." See, e.g., Fed. R. Evid. 802; Fed. R. Evid.

901; Fed. R. Evid. 1002.

13

Fed. R. Evid. 702. “Nor is the trial judge disabled from

screening [expert] evidence. To the contrary, under the

Rules the — «! judge must insure that any and all scientific

testimony or evidence admitted is not only relevant, but

reliable." Daubert, 509 U.S. at 589 (emphasis added).

Thus, courts have regularly performed their roles as

gatekeepers under Rule 702 to screen all types of expert

testimony for reliability before allowing it to be presented

to a jury. For example, in Jn re Air Crash Disaster at New

Orleans, Louisiana, 795 F.2d 1230 (Sth Cir. 1986), the

court determined that the district court should have refused

to accept the conclusions of plaintiffs’ economist where the

economist failed to provide a reasonable basis for his

calculations. In reaching its decision, the court cautioned

that:

[T)rial courts must be wary lest the

expert become nothing more than an

advocate of policy before the jury.

Stated more directly, the trial judge ought

to insist that a proffered expert bring to

the jury more than the lawyers can offer

in argument. Indeed, the premise of

receiving expert testimony is that it "will

assist the trier of fact to understand the

evidence or to determine a fact in

issue..."

Id. at 1233 (quoting Fed. R. Evid. 702).

The court in Renaud vy. Martin Marietta Corp.,

Inc. , 972 F.2d 304, 308 (10th Cir. 1992), provided similar

direction to the district court. In affirming the district

court’s exclusion of plaintiff's expert testimony, the Tenth

Circuit recognized that the district court fulfilled its

14

independent duty initially to determine the reliability of the

proffered expert testimony of plaintiffs’ environmental

engineer and hydrologist in ruling on its admissibility.

See also Watkins v. Telsmith, Inc., 121 F.3d 984 (Sth Cir.

1997) (design expert excluded because testimony

unreliable); Peitzneier v. Hennessy Indus., Inc., 97 F.3d

293 (8th Cir. 1996), cert. denied, U.S. _, 1178S. Ct.

1552 (1997) (expert testimony concerning design of tire

changing machine excluded as unreliable); Cummins v. Lyle

Indus., 93 F.3d 362 (7th Cir. 1996) (expert testimony

regarding adequacy of warnings and feasibility of

alternative designs excluded as unreliable because

untested); Peters v. Five Star Marine Service, 898 F.2d

448, 449-450 (Sth Cir. 1990) (affirming district court’s

decision excluding proposed testimony of maritime

operations expert under Rule 702 where it would not assist

trier of fact); United States v. Downing, 753 F.2d 1224,

1226 (3d Cir. 1985) (holding that district court must assess

various factors in conducting “preliminary scrutiny" of

proposed expert evidence on eyewitness identifications by

psychologist); United States v. Marabelles, 724 F.2d 1374,

1381-82 (9th Cir. 1984) (court did not abuse its discretion

in excluding unreliable expert testimony of loan officer that

would not reasonably assist the jury); Larsen v.

International Bus. Mach. Corp., 87 F.R.D. 602, 606-607

(E.D. Pa. 1980) (holding that Rule 702 is a "codification

of existing federal law" and requires the trial court to

determine if proffered expert testimony .f safety expert

will assist trier of fact to understand the evidence).

Furthermore, there is nothing in the teachings of

prior court decisions and the writings of legal scholars that

can justify the elimination of a trial court’s gatekeeping

scrutiny of expert evidence depending on the type of expert

testimony that is proffered by a party. Regardless of the

15

discipline involved, the purpose of an expert’s testimony is

to provide information to jurors in areas that are beyond

the knowledge and experience of the lay juror.

Consequently, the concerns of reliability arise so that the

trier of fact is not misled by information it does not

understand, or gives too much credence because of an

expert’s credentials. Thus, all types of expert testimony

are the same for purposes of their demand for a trial

court’s gatekeeping scrutiny.’ Indeed, Rule 702, on its

face, unequivocally applies this gatekeeping requirement to

all expert evidence, not just scientific evidence.

Nl. THE ELEVENTH CIRCUIT ERRED IN

RULING THAT DAUBERT’S TEACHINGS

ARE LIMITED TO THE EVALUATION OF

SCIENTIFIC EVIDENCE

A. The Court’s Daubert Analysis Applies

To All Expert Evidence, Not Just

Scientific Evidence

In articulating the trial court’s role as a gatekeeper

to scru_.aize expert testimony for relevance and reliability,

the Court in Daubert stated, "The primary locus of this

obligation is Rule 702, which clearly contemplates some

degree of regulation of the subjects and theories about

which an expert may testify." 509 U.S. at 589. Thus, the

inquiry of what types of expert testimony ought to be

subject to scrutiny under Daubert must begin with the

"See Laser, Inconsistent Gatekeeping in Federal Courts:

Application of Daubert v. Merrell Dow Pharmaceuticals, Inc. to

Nonscientific Expert Testimony, 30 Loy. L.A. L. Rev. 1379

(April 1997).

16

provisions of Rule 702. The Rule states: "If scientific,

technical, or other specialized knowledge will assist the

trier of fact to understand the evidence or to determine a

fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education, may

testify thereto in the form of an opinion or otherwise." It

is beyond argument that no part of Rule 702 commands

that scientific expert testimony be afforded different

treatment from other types of expert testimony. The Rule

simply lumps all experts together and requires that their

opinions satisfy two conditions: (1) that they “assist the

trier of fact" and (2) that they be "qualified as an expert."

The advisory committee notes to Rule 702 further

support the clear wording of Rule 702 that the district

court, in the first instance, must screen all expert evidence

in accordance with the Federal Rules of Evidence. For

instance, the advisory committee noted that "Whether the -

situation is a proper one for the use of expert testimony is

to be determined on the basis of assisting the trier." Fed.

R. Evid. 702 Advisory Committee’s Note. That this

exercise by the district court is not limited to only scientific

experts is made clear in the notes:

The rule is broadly phrased. The

fields of knowledge which may be drawn

upon are not limited merely to the

"scientific" and "technical" but extend to

all "specialized" knowledge. Similarly,

the expert is viewed, not in a narrow

sense, but as a person qualified by

“knowledge, skill, experience, training or

education." Thus within the scope of the

rule are not only experts in the strictest

sense of the word, e.g., physicians,

17

physicists, and architects, but also the

large group sometimes called "skilled"

witnesses, such as bankers or landowners

testifying to land values.

Id.

In determining that expert testimony must be

scrutinized for its ability to assist the jury and for its

reliability, the Court did not read nonexisting words into

the statute to create a distinction obligating the trial court

to scrutinize only scientific expert evidence, but not other

types of expert evidence. The Court quite clearly

explained that the only reason it confined its decision to

scientific testimony was because that was the specific

testimony in the case that was before the Court. "Rule 702

also applies to technical, or other specialized knowledge. ’

Our discussion is limited to the scientific context because

that is the nature of the expertise offered here." 509 U.S.

at 590 n.8. Indeed, the Court then went on to note that:

Although the Frye decision itself focused

exclusively on "novel" scientific

techniques, we do not read _ the

requirements of 702 to apply specifically

or exclusively to unconventional

evidence. Of course, well-established

propositions are less likely to be

challenged than those are novel, and they

are more handily defended.

Id. at 593 n.11.

Against the undeniable premise that Daubert’s .

direction for the trial court to act as a gatekeeper to

determine the relevance and reliability of an expert’s

testimony finds its genesis in Rule 702, it would defy

reason to suggest that the Court would have reached a

different conclusion for non-scientific expert testimony,

particularly where the rule itself does not distinguish

between the two.

B. By Reading Daubert To Apply Only To

Scientific Evidence, The Eleventh Circuit

Misconstrued The Teachings of Daubert

Below, the Eleventh Circuit did not consider at all

whether the four Daubert factors the District Court applied

could have assisted the District Court in evaluating the

reliability and relevance of the Respondents’ expert’s

testimony. Instead, it summarily concluded that because

Respondents’ expert was not a “scientific” expert, the

District Court should not have subjected his testimony to a

Daubert analysis. As explained above, this was clear error

because a trial court’s Daubert gatekeeping requirements

apply to all expert evidence, not just scientific evidence.

By holding that Daubert does not apply because

the expert is not testifying about science, the Eleventh

Circuit completely misconstrued the meaning of Daubert.

In effect, the Eleventh Circuit reduced Daubert to the

rather simple proposition that the four factors identified by

the Court should be applied only to scientific expert

testimony, and no other kind of expert testimony.

Proceeding from that false premise, the Eleventh Circuit

conclusory ruled that the District Court never should have

reached the four Daubert factors because Respondents’

expert testimony was non-scientific. Daubert’s teachings,

however, are not that simple. The crux of Daubert was

not the application of the four factors to the scientific

19

evidence at issue in Daubert. Rather, it was its charge to

the district courts to act as "gatekeepers" to insure the

“reliability” of all expert testimony submitted to the jury.

This “gatekeeper” responsibility requires the trial court to

make a threshold analysis of the expert’s proffered

testimony -- whether scientific, technical or otherwise -- to

determine whether it constitutes “specialized knowledge"*

that will “assist” the trier of fact to understand or

determine a fact in issue." The Court emphasized that this

gatekeeping analysis must, of necessity, be:

[A] flexible one. Its overarching subject is the

scientific validity and thus the evidentiary

relevance and reliability -- of the principles that

underlie a proposed submission. The focus, of

course, must be solely on principles and

methodology, not on the conclusions that they

generate.

509 U.S. at 594-95. se

While the Court did set forth four general factors

that courts could consider when evaluating an expert’s

proffered testimony, it specifically noted that many factors

may bear on the inquiry. 509 U.S. at 593. And, the trial

court is in the best position to determine what such criteria

ought to be, based on the facts of the case before it. As

*The Court emphasized in Daubert that the word knowledge

“applies to any body of facts or to any body of ideas inferred

from such facts or accepted truths on good grounds." /d. at 590

(quoting Webster’s Third New International Dictionary 1252

(1986)) (emphasis added).

20

the Court stated in Daubert, “We are confident that federal

judges possess the capacity to undertake this review." Id.

Thus, the District Court in this case did precisely

what Daubert directed it to do. Performing its

“gatekeeping” duties, the District Court evaluated the

testimony proffered by Respondents’ expert to determine

whether the expert’s testimony was reliable and would

assist the jury. And while the District Court did use the

four factors set forth in Daubert to perform its evaluation,

it did not limit its inquiry to these four factors. Indeed, the

Court specifically considered other factors; it found "the

Daubert factors appropriate, analyzed them, and discerned

no competing criteria sufficiently strong to outweigh them";

and, after doing so, the District Court found Respondents’

expert’s testimony unreliable and, thus, excluded it from

evidence. Carmichael v. Samyang Tires, Inc., No. 93-

0860-CB-S, Order at 4 (S.D. Ala. June 5, 1996).

Accordingly, the District Court properly applied

Daubert to Respondents’ expert’s testimony, and it was

error for the Eleventh Circuit to reverse based on its

characterization of the expert’s opinions as being non-

scientific.

21

CONCLUSION

The District Court below properly excluded the

Respondents expert’s testimony. Accordingly, amici

curiae respectfully request that the judgment of the Court

of Appeals be reversed.

Respectfully submitted,

Daniel J. Popeo Arvin Maskin*

Paul D. Kamenar Konrad L. Cailteux

WASHINGTON LEGAL John H. Bae

FOUNDATION Theodore E. Tsekerides

2009 Massachusetts Ave., N.W. WEIL, GOTSHAL

Washington, D.C. 20036 & MANGES LLP

(202) 588-0302 767 Fifth Avenue

New York, N.Y. 10153-0119

(212) 310-8000

* Counsel of Record

Dated: August 25, 1998