Amicus Curiae Brief — Kumho Tire Co. v. Carmichael

In The

Supreme Court of the United States

October Term, 1998

.

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

and HERCULES TIRE & RUBBER COMPANY, INC.,

Petitioners,

PATRICK CARMICHAEL, AN INDIVIDUAL AND

FATHER AND NEXT OF KIN TO PATRICK CARMICHAEL,

JR., A MINOR, LUZVIMINDA CARMICHAEL,

AN INDIVIDUAL, MOTHER AND NEXT FRIEND OF

CARINA HORN, A MINOR, AND ADMINISTRATRIX OF

THE ESTATE OF JANICE HORN, CARINA HORN, A

MINOR, LEONA CARMICHAEL, SHAMEELA

CARMICHAEL, NATIMAH CARMICHAEL,

Respondents.

¢

On Writ Of Certiorari To The United States Court

Of Appeals For The Eleventh Circuit

o

BRIEF AMICUS CURIAE OF BONA SHIPPING (U.S.), INC.,

LIBERTY MARITIME CORPORATION, MARINE

TRANSPORT LINES, INC., MARITIME OVERSEAS

CORPORATION, AND THE OFFSHORE MARINE SERVICE

ASSOCIATION IN SUPPORT OF RESPONDENTS

*

Rosert L. Kiawetrer

Counsel of Record

Lewis E. HENDERSON

EastHaM, Watson, Date & Forney,

L.L.P.

The Niels Esperson Building

808 Travis, 20th Floor

Houston, Texas 77002-5769

(713) 225-0905

Micuaet F. Sturtey -

727 East Dean Keeton Street

Austin, Texas 78705

Attorneys for Amici Curiae

(512) 232-1350

‘BEST AVAILABLE

COPY,

~~

no

a

TABLE OF CONTENTS

Page

TABLE OF AUTIRE Eee oo ci cence teewedoneices es iii

INTEREST OF AMICI CURIAE...........00eeeeeeee l

SUMMARY OF ARGUMENT...................005- 3

PTFE 0 nti dspc Ceabadntydadcakedevoiatanines 4

I. District Courts Should Exercise a Robust Gate-

keeper Function to Exclude Inappropriate Expert

FORGE 0 bir cc acd io vescesecactsshewesbnve 5

A. The Special Problems with Expert Testimony

adh arose nckenspedecsckewven aaleaneebenes € 5

1. The Jury’s Lack of Expertise........... 5

2. Mercenary Expert Testimony........... 6

3. The Expert Witness as a Conduit for

Inadmissible Evidence ................. 7

B. The Need for a Robust Gatekeeper Function to

Exclude Inappropriate Expert Testimony. ..... 9

Il. A District Court’s Responsibility for Controlling

Questionable Expert Testimony Does Not End

with the Decision on Admissibility, but Con-

tinues During the Remaining Pre-Trial Proceed-

ings, Throughout the Trial, and When Deciding

Pests Dee... ss be SiR unsaved es aveke Bs 10

A. The Inadequacy of the Simple Gatekeeper

Model for Controlling Questionable Expert

p PPT ITT eee ee 10

ii

TABLE OF CONTENTS - Continued

Page

B. Alternative Pre-Trial, Trial, and Post-Trial

Remedies for Controlling Questionable

PE CINE sos 5 ou catncdesecoetoctoees 12

Ay: EY FUMING. v5 as bc dcecccessowes 12

2. Appropriate Jury Instructions .......... 13

3. Judgment as a Matter of Law Before Sub-

mission of the Case to the Jury (Directed

I: oa aha URE ee a 14

4. Judgment as a Matter of Law After Trial

(Judgment Notwithstanding the Verdict).. 15

HY B.S Sle Gaile eS eiwedweedeesonses 15

i Ms nh) Chae be vite phe edevncseee os 16

C. The Importance of Pre-Trial, Trial, and Post-

Trial Remedies at the Admissibility Stage .... 17

CONCLUSION ............. Te peevow av dowd wekateeer 18

TABLE OF AUTHORITIES

Page

Cases

In re Air Crash Disaster at New Orleans, 795 F.2d

EE Ma ek.nn.s Cake dre eneahed cbhbesqunnanes 7

Barris v. Bob's Drag Chutes & Safety Equipment, Inc.,

£- € FT & Sere ee Spee are 8

Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988) ...11, 17

Bruton v. United States, 391 U.S. 123 (1968).......... 14

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

ee A OU cs 5 2 vp bensdddocvarscvscunctbaaes passim

Douglass v. Eaton Corp., 956 F.2d 1339 (CA6 1992).... 15

El. du Pont de Nemours & Co. v. Robinson, 923

SERRE SE ERR ae 7

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

De aaa dba de i ceded) (hele alee mine scnane 2

General Electric Co. v. Joiner, 522 U.S. __, 118 S.Ct.

I Dende dilie ada ama ok dekh sph obec bud oe 4

Gray v. Maryland, 523 U.S. __, 118 S.Ct. 1151

Ds deni eda kebee kAek Uk Ledie pA de) dd ee ged etd 14

Hamling v. United States, 418 U.S. 87 (1974)........... u

Jackson v. Pleasant Grove Health Care Center, 980

i ee oe ede ek 15, 17

Lightening Lube, Inc. v. Witco Corp., 4 F.3d 1153

DET WO nds UAcavdcohehacondececsousesucenseness 15

iv

TABLE OF AUTHORITIES — Continued

Page

Marsee v. United States Tobacco Co., 866 F.2d 319

CERIO BOGE s conc cee ck cescat in conendsnagevagn sess 8

Montgomery Ward & Co. v. Duncan, 311 U.S. 243

CORE vnc cdcaa cue ve cknciedatcascanvbanbadysertuess 16

Richardson v. Richardson-Merrell, Inc., 857 F.2d 823

(CA DC 1988), cert. denied, 493 U.S. 882 (1989) .... 15

Schudel v. General Electric Co., 120 F.3d 991 (CA9

Shu-Tao Lin v. McDonnell Douglas Corp., 742 F.2d 45

GERAD SOG sc on cvcccctocdexetcaenncdssdeactete< 16, 17

Shu-Tao Lin v. McDonnell Douglas Corp., 574

F.Supp. 1407 (S.D.N.Y. 1983), rev'd, 742 F.2d 45

GEA BE web acisdnic + cvodendatsenté duansediweons 16

Strickland v. Owens Corning, 142 F.3d 353 (CA6

PUN: ad's cused che cecntencce can tetacdnesnkess sees 16

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

1349 (CA6), cert. denied, 506 U.S. 826 (1992)....... 13

United States v. Lundy, 809 F.2d 392 (CA7 1987) ...... 8

United States v. Sims, 514 F.2d 147 (CAQ9), cert.

Gentad, 23 US. GIB (UGTS) ooo onc ciccccsvcccscces 8, 13

Vadala v. Teledyne Industries, Inc., 44 F.3d 36 (CAI

SEU aducdicucastnceedbereabesbscatusnesesénes 13, 14

Srarutes AND RuLes

on ahs isa hake ee 6

ON hc i eal Ge abiaaal 7

v

TABLE OF AUTHORITIES — Continued

Page

BB BE, BK 6. sob 6 Oa ho cp ddcnn intitgosnd ec cqiwi 7

Pam. B. Caw RR BM. ccc cccectivivet isd cakes oneae 14

Se SR ng coal St latins seccesupahuseda 15

PUG We Gee We ME vic cUcddcacc¥accccccecdssses 17

Peas Th GI Ge ED <a'S evn de ede casestedsovenees 17

Pk: Gi ae > oe esne nc eecd een eedaseoscousuetdesee 13

ee SE ee ee, ec ivce cu deenedeed 8

EE MEE Racidc cocks sevduiondhaesecpepasetess 9

St 2, Ch onned sme pemedbarvhensenedwtnssenneee 9

ei IOUS iiss cineca soto cet 3, 5, 6, 12

PU, Sis CD. GE Ro WeWis codccatws cassecnccsiowsascues 8

A.B.A. Mover Cove or Proressionat Resronsiitiry

et WEE osibsuddh'ose cc ckudebnehecdresevucocee’s 7

A.B.A. Move. Rute or Proressionat Conpuct 3.4(b) .... . 7

OrHer AUTHORITIES:

S. Goove, O.G. Wetisorn & M. SHartot, Guipe to

THE Texas Ruces or Evipence: Civ. AND Criminat

SE ME ene tGbbebadnanedicctecsdderasissincse 7

Gross, Expert Evidence, 1991 Wis. L. Rev. 1113...... 4,7

vi

TABLE OF AUTHORITIES — Continued

Page

Richey, Proposals to Eliminate the Prejudicial Effect of

the Use of the Word “Expert” Under the Federal

Rules of Evidence in Civil and Criminal Jury Trials,

- 8 § Bg. eS ee Teer errr

Weinstein, Rule 702 of the Federal Rules of Evidence

is Sound: It Should Not Be Amended, 138 F.R.D.

Ge See eg cckbeariccdtspat¥eteeketbenestivdss ics

22? C. Wronmt & K. Granam, Feprrat Practice AND

Pecmaten GB Ter Ceres oc ckve cess episesivedcadics

BRIEF AMICUS CURIAE

Bona Shipping (U.S.), Inc., Liberty Maritime Corpora-

‘on, Marine Transport Lines, Inc., Maritime Overseas

Corporation, and the Offshore Marine Service Associa-

tion (“OMSA”) respectfully submit this brief as amici

curiae in support of the respondents.'

Petitioners and respondents have given their blanket

consent to the filing of all amicus briefs in this case, and a

copy of their attorneys’ letter has been lodged with the

Clerk of the Court on the behalf of all amici.

°

INTEREST OF AMICI CURIAE

The first four amici are corporations that do business

in the United States, and thus may be subject to suit in

the United States. Each has been a defendant in one or

more lawsuits in which a plaintiff has sought to introduce

questionable expert testimony, and each reasonably antic-

ipates that it will be in a similar situation in the future.

Thus, each has a vital interest both in the admissibility of

expert testimony and in the options available to a district

court when responding to questionable expert testimony.

OMSA is a national trade association representing over

eighty owners or operators of marine equipment which

supports 90% of the equipment servicing the United

States offshore oil and natural gas exploration and devel-

opment industries. Its goals include encouraging and

' No counsel for a party authored this brief in whole or in

part. No person or entity, other than amici, made a monetary

contribution to the preparation or submission of this brief.

promoting the highest standards of safety, training, and

environmental protection in the offshore marine transpor-

tation service industry.

Although amici's interests might seem to be consis-

tent with petitioners’ interests, that is true only in the

very narrow sense that amici and petitioners all have an

interest in ensuring that questionable expert testimony

does not improperly influence trials. The district court's

application of the four Daubert factors may have resulted

in the proper exclusion of questionable expert testimony

in this particular case, but even if that is true here? there

is no assurance that this limited analysis would produce

the correct result in future cases. Amici contend that a

broader analysis is more appropriate. Thus, amici agree

with the Eleventh Circuit's judgment, i.e., that the deci-

sion of the district court should be vacated, and that the

case should be remanded to the district court for recon-

sideration.*

* Like the Eleventh Circuit, amici express no view as to

whether the specific expert testimony at issue here should have

been admitted into evidence. The district court should decide

that issue on remand, applying the analysis suggested here to

the facts of this case.

* The Eleventh Circuit's opinion does not provide any clear

direction for the district court on remand. Although the court of

appeals declares that “(t)he district court erred as a ma’ er of

law in applying the Daubert criteria,” 131 F.3d at 1437, Petition

(“Pet.”) App. A at 10a, the extent of this error is not explained. It

would be absurd to suggest that Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), would be completely

irrelevant on remand. If nothing else, the district court would be

bound by Daubert to apply Rule 702 rather than the rule of F rye

v. United States, 54 App. D.C. 46, 293 F. 1013 (1923). Amici

Accordingly, amici file this brief urging the Court to

affirm the decision below and to provide appropriate

guidance along the lines advocated here for the district

court to apply on remand.

e

SUMMARY OF ARGUMENT

District courts have a wide range of options for con-

trolling the problems associated with questionable expert

testimony. At the admissibility stage, courts should exer-

cise a robust gatekeeper function. Once evidence is held

admissible, however, courts still have an array of pre-

trial, trial, and post-trial remedies to control the prob-

lems. For example, when expert testimony is admitted

into evidence but is nevertheless insufficient to allow a

reasonable jury to find in the proponent’s favor, a court

may grant summary judgment or judgment as a matter of

law, offer a remittitur, or order a new trial. Courts should

use each of these tools in appropriate circumstances.

Moreover, their availability is an important consideration

in the initial admissibility decision. Indeed, some evi-

« nce that lies at the margin of admissibility may be

properly admitted because the court has adequate con-

trols (other than exclusion) available.

«

accordingly read the decision below as holding that the district

court should not limit its analysis to the four Daubert factors, but

should instead apply a broader analysis under Rule 702 (that

may or may not include some or all of the specific Daubert

considerations). Amici support this conclusion, and urge this

Court to provide more detailed guidance - both for the district

court on remand and for future courts that will face these issues.

ARGUMENT

The problematic nature of expert testimony is well

recognized. See, e.g., Daubert v. Merrell Dow Pharmaceuti-

cals, Inc., 509 U.S. 579, 595 (1993) (“ ‘Expert evidence can

be both powerful and quite misleading because of the

difficulty in evaluating it.’ ”) (quoting Weinstein, Rule 702

of the Federal Rules of Evidence is Sound; It Should Not Be

Amended, 138 F.R.D. 631, 632 (1991)); 22 C. Wricut & K.

GRAHAM, Feperat Practice AND Procepure § 5217, at 295

7

(1978) (“Scientific and technical evidence has great poten-

tial for misleading the jury.”); Gross, Expert Evidence, 1991

Wis. L. Rev. 1113, 1114-15 & nn.1-6 (cataloging dissatisfac-

tion with expert testimony going back to 1848).

Methods by which the problems might be addressed

are also well known, but unfortunately they are often

overlooked. In Daubert, the Court focused on the issue of

admissibility: When is it appropriate to admit an expert's

testimony into evidence? This is an important question,

and answering it correctly is an essential part of the

solution. But it is still only part of the solution. Once the

court has ruled that an expert’s testimony is admissible,

the trial court must still exercise appropriate pre-trial,

trial, and post-trial controls to ensure that questionable or

insufficient expert testimony does not improperly affect

the litigation process. Not only are these other options

important in their own right, their availability is an

important consideration in resolving the admissibility

question. Part I of this brief focuses on admissibility,

while Part II focuses on appropriate pre-trial, trial, and

post-trial controls.

District Courts Should Exercise a Robust Gatekeeper

Function to Exclude Inappropriate Expert Testimony

A. The Special Problems with Expert Testimony

Although expert testimony has the potential to be

highly valuable in resolving legal disputes, problems

unique to expert testimony also create a tremendous risk

that it may be abused. Amici note three particular prob-

lems with expert testimony, each of which increases the

risk that the testimony will be abused.

1. The Jury’s Lack of Expertise. The admissibility of

expert testimony and the wide latitude given to experts

are based on the assumption that jurors lack the expertise

to understand the significance of the underlying facts on

which experts rely to draw their conclusions. See, ¢.g.,

Advisory Committee’s Note to Feo. R. Evip. 702. Even if

jurors were given the underlying facts on which a reliable

expert depends, the Rules presume that they would be

unable to reach the correct conclusions without assis-

tance.

If jurors had the necessary expertise, expert wit-

nesses could testify in the same way as ordinary lay

witnesses. In the context of the present case, for example,

Mr. Carlson would simply testify about his observation of

such things as “tell-tale markings,” “ ‘bead grooves,’ ”

and “ ‘sidewall deterioration,’” 131 F.3d at 1436, Pet.

App. A at 8a, on the failed tire. The jury would then draw

its own conclusion “whether [the] tire failed because of

abuse or neglect.” Ibid. Similarly, in Daubert the chal-

lenged experts would have described their observations

during the “in vitro” and “in vivo” animal studies, the

observations during the pharmacological studies, and the

data in the previously-published pharmacological

studies. See 509 U.S. at 583. The jury would then apply

this knowledge itself to determine whether Bendectin

causes birth defects in humans.

Because jurors are presumed to lack the expertise to

draw useful conclusions from any technical or scientific

data, Rule 702 permits reliable experts to draw the con-

clusions for the jury. So long as the experts are reliable,

the system can work well and jurors can obtain valuable

information that will help them to reach a correct verdict.

When the experts’ opinions are unreliable, however, the

jury — by the same hypothesis that permits the experts’

testimony — lacks the expertise to recognize the invalidity

of their conclusions, and accordingly it may easily be

misled or confused as a result. Having set up a system

based on the assumption that jurors will not understand

an expert’s methods, it makes little sense to ask jurors to

distinguish between reliable and unreliable expert testi-

mony based on cross-examination, the quality of the

experts’ presentations, or some other factor that will

either be misunderstood or irrelevant. Accordingly, dis-

trict courts must guard carefully against the risk that

unreliable testimony will infect the process.

2. Mercenary Expert Testimony. Other factors unique to

expert testimony also increase the risk of abuse. Unlike

an ordinary witness,4 an expert witness may be (and

+ It is generally a felony to pay a witness for testimony in

federal court, see 18 U.S.C. § 201(c)(2), or to be paid as a witness,

s—=

commonly is) paid to testify. See, e.g., Gross, supra, 1991

Wis. L. Rev. at 1129-36. This naturally creates a market in

expert testimony, meaning that litigants can “shop” for

the experts most likely to assist their cases, so that the

actual expertise of the witness may become a secondary

concern. See, e.g., In re Air Crash Disaster at New Orleans,

795 F.2d 1230, 1234 (CA5 1986) (criticizing “experts whose

opinions are available to the highest bidder”); E.J. du Pont

de Nemours & Co. v. Robinson, 923 S.W.2d 549, 553 (Tex.

1995) (noting the existence of “experts who ‘are more

than willing to proffer opinions of dubious value for the

proper fee’ ”) (quoting 2 S. Goope, O.G. WeLiBsorn & M.

SHaARLOoT, Guipe To THE Texas Rutes or Evipence: Crvit AND

Criminat § 702.2, at 17 (2d ed. 1993)); Gross, supra, 1991

Wis. L. Rev. at 1131-32 (describing the modern market for

expert testimony).

Although an opposing lawyer can bring out on cross-

examination that a witness has been paid to testify, this

control is not particularly effective because typically both

sides will have paid their expert witnesses. The mere fact

of payment gives the jury no reason to prefer one paid

expert over the other. Accordingly, district courts must

guard carefully against the risk that purely mercenary

testimony will infect the process.

3. The Expert Witness as a Conduit for Inadmissible

Evidence. Unlike ordinary witnesses, expert witnesses

see 18 U.S.C. § 201(c)(3). These general rules do not apply to

expert witnesses. See 18 U.S.C. § 201(d). See also, e.g., A.B.A.

Move Rute or Proressionat Conouct 3.4(b); A.B.A. Mover Cope

OF PrRoressionat Responsisitrry DR 7-109(C).

can base their testimony on otherwise inadmissible evi-

dence. See Fev. R. Eviv. 703 (“The facts or data in the

particular case upon which an expert bases an opinion or

inference . . . need not be admissible in evidence.”). By

definition, the jury should not consider this underlying

inadmissible evidence. Cf, e.g., Feo. R. Eviw. 103(c) (“pro-

ceedings shall be conducted, to the extent practicable, so

as to prevent inadmissible evidence from being suggested

to the jury by any means”).

If the system works properly, the expert will “filter”

the inadmissible evidence, using his or her expertise

implicitly to vouch for the reliable evidence and to elimi-

nate the unreliable from consideration. See, e.g., Advisory

Committee’s Note to Fev. R. Eviw. 703; United States v.

Sims, 514 F.2d 147, 149 (CA9) (“Years of experience teach

the expert to separate the wheat from the chaff... . ”),

cert. denied, 423 U.S. 845 (1975). When the system works

poorly, however, the expert may become little more than

a conduit for putting inadmissible evidence before the

jury. Cf. Marsee v. United States Tobacco Co., 866 F.2d 319,

322-324 (CA10 1989) (plaintiff's medical expert attempted

to introduce inadmissible hearsay); United States v. Lundy,

809 F.2d 392, 395 (CA7 1987) (“An arson expert cannot

testify that he heard from an informant that the defen-

dant torched the building and thus in his expert opinion

the defendant probably set the fire.”); Barris v. Bob’s Drag

Chutes & Safety Equipment, Inc., 685 F.2d 94, 101-102 n.10

(CA3 1982) (plaintiff's design expert attempted to intro-

duce unrelated data and facts from a different expert's

report). Accordingly, district courts must guard -carefully

against the risk that experts will become conduits for

inadmissible evidence that will infect the process.

B. The Need for a Robust Gatekeeper Function to

Exclude Inappropriate Expert Testimony

Because expert testimony is very different from other

testimony, the Federal Rules of Evidence give judges the

power to exclude expert testimony on grounds that are

unavailable with respect to other witnesses. In other

words, the Rules create a unique gatekeeper function for

expert testimony that is broader than the normal gate-

keeper function that trial judges regularly undertake (on

such issues as relevance, for example). See, e.g., General

Electric Co. v. Joiner, 522 U.S. __, 118 S. Ct. 512, 517

(1997); Daubert, supra, 509 U.S. at 589 & n.7; Hamling v.

United States, 418 U.S. 87, 108 (1974). But the Rules do not

specify whether this is a robust gatekeeper function (in

which judges carefully scrutinize expert testimony and

keep out anything questionable), a weak one (in which

judges admit everything that is arguably relevant and

reliable, leaving it to the jury to sort out the good evi-

dence from the bad), or something between these two

alternatives.

——

If judges were to exercise only a weak gatekeeper

function, expert testimony would be little different from

other evidence. District courts can exclude any evidence

that is, for example, irrelevant, see Feo. R. Eviv. 402,

cumulative, see Feo. R. Eviw. 403, or unduly prejudicial,

see ibid. The unique gatekeeper function for expert testi-

mony undoubtedly justifies something more than this.

10

Amici contend that a robust gatekeeper function is

required because the unique problems associated with

expert testimony, see supra part I1.A, demand particularly

close scrutiny to ensure that unreliable testimony does

not infect the trial process.

A District Court’s Responsibility for Controlling Ques-

tionable Expert Testimony Does Not End with the Deci-

sion on Admissibility, but Continues During the

Remaining Pre-Trial Proceedings, Throughout the Trial,

and When Deciding Post-Trial Motions

Although the district court should be a robust gate-

keeper to exclude inappropriate expert testimony, con-

trolling the gate is not the only method to control the

problem. District courts also have other tools for ensuring

that litigants do not misuse questionable expert testi-

mony, and they should be instructed to take advantage of

their full arsenal to preserve the integrity of the trial

process. Recognition of the full range of options is impor-

tant even when ruling on admissibility, because it enables

the court to tailor its admissibility ruling appropriately.

A. The Inadequacy of the Simple Gatekeeper Model

for Controlling Questionable Expert Testimony

Excluding questionable testimony is one way to con-

trol the unique problems associated with expert evidence.

But a decision to admit expert testimony does not neces-

sarily mean that the evidence is so reliable that no further

problems can arise. In reality, no clear line exists between

reliable and unreliable expert testimony. Although some

11

testimony is clearly unreliable and should be excluded,

while some is clearly reliable and should be admitted, a

district court is least likely to address these extreme

situations in practice.° Between the two extremes lies the

spectrum of cases that generally require a decision.

Often the expert evidence offered will be sufficiently

unreliable that the best course, considering all of the

circumstances, will be to exclude it completely. Some-

times the evidence offered will be unreliable enough to

make the judge skeptical, but not so unreliable that the

judge concludes that it should be excluded completely. In

such a situation, the judge may wish to admit the evi-

dence, confident in the knowledge that subsequent

remedies will still be available to deal with the problems

if the judge’s initial skepticism proves justified. In short,

some evidence that lies at the margin of admissibility

may be properly admitted because the court has adequate

controls (other than exclusion) available. In these situa-

tions, the important concerns that justify a robust gate-

keeper function will still be addressed while also

recognizing “the ‘liberal thrust’ of the Federal Rules and

their ‘general approach of relaxing the traditional barriers

to “opinion” testimony.’ ” Daubert, supra, 509 U.S. at 588

(quoting Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169

(1988)).

* Clearly inadmissible evidence is the least likely to be

offered and clearly admissible evidence is the least likely to be

challenged because most parties will recognize the futility of

these attempts. Cf. Daubert, 509 U.S. at 592 n.11 (“well-

established propositions are less likely to be challenged”).

12

Finally, the alternative remedies noted here are par-

ticularly important in cases where admissibility is never

an issue. As this Court recognized in Daubert, some

expert testimony is shaky but still admissible. See 509 U.S.

at 596. In such situations, the trial court’s gatekeeper

function is not efivet' ve, and the court must instead rely

on other pre-trial, trial, and post-trial remedies.

B. Alternative Pre-Trial, Trial, and Post-Trial Remedies

for Controlling Questionable Expert Testimony

District courts have a wide array of pre-trial, trial,

and post-trial remedies for controlling the problems asso-

ciated with questionable expert testimony, and amici note

only a few of them here. The important point is not to

catalogue the entire range of options, but to recognize

that (a) there is a wide range of options; and (b) district

courts should use them in appropriate circumstances.

1. Summary Judgment. A district court's conclusion

that expert testimony satisfies the Rule 702 standard does

not necessarily mean that the case must proceed to trial.

If the court concludes that the testimony - although

admissible — is still so questionable that it is insufficient

to allow a reasonable jury to find in the proponent’s

favor, “the court remains free . . . to grant summary

judgment.” Daubert, supra, 509 U.S. at 596 (citing Fev. R.

© In some cases, expert testimony may be perfectly reliable

but it will still be insufficient to establish all of the elements of a

plaintiff's case. In such a situation, the remedies discussed here

are particularly relevant.

13

Civ. P. 56). See also, e.g., Turpin v. Merrell Dow Pharmaceuti-

cals, Inc., 959 F.2d 1349 (CA6) (upholding summary judg-

ment when the plaintiffs’ evidence — essentially the same

as the expert testimony whose admissibility was at issue

in Daubert — was insufficient to allow a jury to find that

Bendectin caused the relevant birth defects), cert. denied,

506 U.S. 826 (1992); cf. Vadala v. Teledyne Industries, Inc., 44

F.3d 36, 39 (CA1 1995) (quoting Daubert).

2. Appropriate Jury Instructions. In Daubert, this

Court explained that “[vJigorous cross examination, pre-

sentation of contrary evidence, and careful instruction on

the burden of proof are the traditional and appropriate

means of attacking shaky but admissible evidence.” 509

U.S. at 596. Cross examination and contrary evidence are

within the control of the opposing party, of course, but

the district court is responsible for the “careful instruc-

tion on the burden of proof.” The burden of proof, how-

ever, is not the only issue on which the district court may

need to provide appropriate jury instructions. Depending

on the context, it may be necessary for the court to give

limiting instructions regarding, for example, the uses to

which evidence may be put, see, e.g., Daubert, supra, 509

U.S. at 591 (noting that evidence about the phases of the

moon may be valid for one purpose, but not for another

purpose); Sims, supra, 514 F.2d at 149-150 (“[When an

expert relies on inadmissible hearsay,] it . . . becomes

necessary for the court to instruct the jury that the hear-

say evidence is to be considered solely as a basis for the

expert opinion and not as substantive evidence.”), or the

power of the jury to reject expert testimony, see, ¢.g.,

Richey, Proposals to Eliminate the Prejudicial Effect of the Use

of the Word “Expert” Under the Federal Rules of Evidence in

14

Civil and Criminal Jury Trials, 154 F.R.D. 537, 555-558

(1994).”

3. Judgment as a Matter of Law Before Submission

of the Case to the Jury (Directed Verdict). Under Federal

Rule of Civil Procedure 50(a), the district court may grant

a motion for judgment as a matter of law before submit-

ting the case to the jury if “there is no legally sufficient

evidentiary basis for a reasonable jury” to reach a differ-

ent conclusion. The Daubert Court recognized this pro-

cedure —- known as a “directed verdict” before the 1991

amendments to the Rules - as an appropriate method for

dealing with questionable expert testimony:

[I]n the event the trial court concludes that the

scintilla of evidence presented supporting a

position is insufficient to allow a reasonable

juror to conclude that the position more likely

than not is true, the court remains free to direct

a judgment... .

509 U.S. at 596 (citing Feo. R. Civ. P. 50(a)). Cf. Vadala v.

Teledyne Industries, Inc., 44 F.3d 36, 39 (CA1 1995) (quoting

Daubert).

7 Although limiting instructions are important and_may be

valuable in appropriate situations, they are often inadequate. As

this Court has recognized, in some situations limiting

instructions are so unlikely to be effective that a trial court

would not be justified in relying on them. See, e.g., Bruton v.

United States, 391 U.S. 123, 135 (1968) (“[T]here are some

contexts in which the risk that the jury will not, or cannot,

follow instructions is so great .. . that the practical and human

limitations of the jury system cannot be ignored.”); cf. Gray v.

Maryland, 523 U.S. ___, 118 S. Ct. 1151, 1155 (1998).

15

4. Judgment as a Matter of Law After Trial (Judg-

ment Notwithstanding the Verdict). Under Federal Rule

of Civil Procedure 50(b), the district court may still grant

a motion for judgment as a matter of law after the jury

has returned a different verdict. Thus this procedure -

known as a “judgment notwithstanding the verdict” or a

“judgment n.o.v.” before the 1991 amendments to the

Rules - would be appropriate when the jury has been

unduly swayed by questionable expert testimony but

“the scintilla of evidence presented . . . is insufficient,”

Daubert, supra, 509 U.S. at 596.8 See, e.g., Richardson v.

Richardson-Merrell, Inc., 857 F.2d 823 (CA DC 1988)

(affirming judgment n.o.v.), cert. denied, 493 U.S. 882

(1989).

5. Remittitur. When the jury has been unduly

swayed by questionable expert testimony in assessing

® There is a conflict among the circuits as to whether a

district court, when ruling on a motion for judgment as a matter

of law after trial (previously known as “judgment

notwithstanding the verdict”), can decline to consider evidence

that in retrospect should not have been admitted during trial.

Compare Lightening Lube, Inc. v. Witco Corp., 4 F.3d 1153,

1198-1200 (CA3 1993) (court may exclude improperly admitted

evidence from consideration), with, e.g., Schudel v. General

Electric Co., 120 F.3d 991, 995-996 (CA9 1997) (court may not

exclude improperly admitted evidence from consideration);

Jackson v. Pleasant Grove Health Care Center, 980 F.2d 692, 695-696

(CA11 1993) (same); Douglass v. Eaton Corp., 956 F.2d 1339,

1343-44 (CA6 1992) (same). Under either view, however, the

district court may enter judgment as a matter of law after trial

when the questionable evidence —- whether or not it should have

been admitted - is insufficient (when considered with the rest of

the evidence in the case) to support the verdict. See, e.g.,

Douglass, 956 F.2d at 1345.

16

damages, a remittitur may be an appropriate remedy.? In

Shu-Tao Lin v. McDonnell Douglas Corp., 574 F. Supp. 1407

(S.D.N.Y. 1983), for example, the jury was unduly swayed

by an “expert” economist’s testimony that, in retrospect,

should not have been admitted in evidence. The district

judge thus offered a remittitur. See id. at 1414. Although

in this particular case, the defendant succeeded in having

even the reduced verdict set aside on appeal, see Shu-Tao

Lin v. McDonnell Douglas Corp., 742 F.2d 45 (CA2 1984),

the option is nevertheless available in appropriate con-

texts. See also, e.g., Strickland v. Owens Corning, 142 F.3d

353, 357-358 (CA6 1998) (remittitur appropriate when the

jury’s allocation of fault was against the weight of the

evidence).

6. New Trial. When the jury has been unduly

swayed by questionable expert testimony - sometimes

because the evidence should not have been admitted at

trial, but more often because admissible testimony was

insufficient to support the verdict - and the court is for

some reason unable to enter judgment as a matter of

law,'° ordering a new trial is an appropriate remedy. See,

* When the jury has been unduly swayed by questionable

expert testimony in determining liability, on the other hand, a

remittitur would not be appropriate. When the jury is not

justified in holding the defendant liable, no damages should be

awarded. But when the jury is entitled to find liability and the

questionable expert testimony relates only to the amount of

damage that the plaintiff suffered, as in Shu-Tao Lin, then the

district court may consider offering a remittitur.

10 See generally, e.g., Montgomery Ward & Co. v. Duncan, 311

U.S. 243, 251 (1940) (noting how the standard for ordering a new

trial differs from the standard for granting judgment as a matter

of law).

17

e.g., Schudel v. General Electric Co., 120 F.3d 991, 996 (CA9

_ 1997); Jackson v. Pleasant Grove Health Care Center, 980 F.2d

692, 696 n.4 (CA11 1993,; Shu-Tao Lin v. McDonnell Dou-

glas Corp., 742 F.2d 45, 49 (CA2 1984); see also, e.g., Fev. R.

Civ. P. 50(b)(1)(B), 50(b)(2)(A).

C. The Importance of Pre-Trial, Trial, and Post-Trial

Remedies at the Admissibility Stage

In this case, the immediate issue before the Court is

the admissibility of an expert witness's proposed testi-

mony, and thus it may seem premature to consider pre-

trial, trial, and post-trial remedies. In fact, it is very

important to consider these remedies at this stage. Not

only are they an important part of the solution to the

potential problems created by questionable expert testi-

mony,'! they are also an important consideration in

resolving the admissibility question. The district court

should make the admissibility determination with the full

range of options in mind. Otherwise, it might exclude

evidence that should properly have been admitted

because other remedies would have been sufficient to

solve the problems it might otherwise create.

S

"If the district court decides on remand to admit Mr.

Carlson's testimony and the original reliability concerns prove

justified, it will be important for the court to exercise its trial

and post-trial control functions. The court must avoid the

mistake of thinking that because the evidence was admitted, no

further control with respect to that evidence is available. “[T]he

‘liberal thrust’ of the Federal Rules,” Daubert, supra, 509 U.S. at

588 (quoting Beech Aircraft Corp., supra, 488 U.S. at 169), does not

justify a district court’s abandoning all controls over

questionable expert testimony - even if it may be admissible.

18

CONCLUSION

The decision of the Eleventh Circuit should be

affirmed, and the case should be remanded to the district

court for further consideration in light of the principles

suggested here.

October 12, 1998

Respectfully submitted,

Rosert L. KLAwetrTer

Counsel of Record

Lewis E. HENDERSON

EasTHAM, Watson, Date &

Forney, L.L.P.

The Niels Esperson Building

808 Travis, 20th Floor

Houston, Texas 77002-5769

(713) 225-0905

MicuHaet F. Stur.ey

727 East Dean Keeton Street

Austin, Texas 78705

(512) 232-1350

Attorneys for Amici Curiae