Amicus Curiae Brief — Kumho Tire Co. v. Carmichael

OFFICE OF THE CLERK

No. 97.1709 a

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

KUMHO TIRE COMPANY, LTD., ET AL.,

Petitioners,

v.

PATRICK CARMICHAEL, ET AL.,

Respondents.

On Writ Of Certiorari To The

United States Court Of Appeals

For the Eleventh Circuit cee

AMICUS CURIAE BRIEF OF

THE ASSOCIATION OF TRIAL LAWYERS OF AMERICA

IN SUPPORT OF THE RESPONDENTS

MARK S. MANDELL, Esq. JEFFREY ROBERT WHITE, Esa.*

1050 31st St., N.W. 1050 31st. St., N.W.

Washington, DC 20007 ~—- Washington, DC 20007

(202) 965-3500 (202) 965-3500

President, The Association Attorney for Amicus Curiae

of Trial Lawyers of America *Counsel of Record

—p eee ee ++ - == _ — ee — ee — — — —- ~~

BEST AVAILABLE COPY! ~

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TABLE OF CONTENTS

TABLE OF AUTHORITIES......... - iii

IDENTITY AND INTEREST OF AMICUS CURIAE......... 1

SUMMARY OF THE ARGUMENT ...........0-0e00 2

ARGUMENT

I. THE TRIAL JUDGE’S GATEKEEPING FUNCTION

REQUIRES FLEXIBLE INQUIRY INTO

RELIABILITY, NOT RIGID APPLICATION OF THE

DAUBERT FACTORS TO ALL EXPERT

TESTIMONY. 4

A. The District Court’s Rote Application of the

Daubert Factors Constituted Abuse of Discretion 5

1. Daubert Does Not Require Judges To Apply Rigid

Criteria For The Admissibility Of Expert Opinion.................. 5

2. Application of the Daubert Factors To All Expert

Testimony Would Preclude Many Types Of Expert Testimony

Viewed As Helpful To The Jury Without Enhancing

ReMBllty. — ...0ccenserrsservsessvcsocsccsvocsccesrsneessonsnessoocnsessosesssneeess 7

3. The District Court's Failure To Indicate the “Fit”

Between Criteria and the Validity of Carlson's Testimony

Constituted Abuse Of Discretion. .........:-.s000eeceeeereeeeerseenees 10

B. Reliability of Carlson’s Application of Valid

Methodology Was Subject To Cross Examination. .......... 12

Il. THE RESPONSIBILITY OF FEDERAL JUDGES IN

RULING ON THE ADMISSIBILITY OF EXPERT

TESTIMONY IS NOT TO RESOLVE CONTESTED

FACTUAL ISSUES, BUT TO ASSIST THE JURY IN

DOING SO. we 13

i

A. This Court Should Provide A Guideline

Applicable to the Admissibility of All Expert Testimony

Under Rule 702 13

B. Historically, Courts Have Deemed Expert

Testimony Sufficiently Reliable For the Jury Where Its

Foundation Is Subject to Cross-Examination or Possesses

Other Indicia Of Reliability. 14

C. The Judge’s Role As Gatekeeper Is To Assure

That Expert Opinion Bears Sufficient Indicia Of

Reliability To Assist The Jury In Determining Its Weight

And Credibility. 18

Ill. RELEVANT TESTIMONY FROM A QUALIFIED

EXPERT IS PRESUMPTIVELY ADMISSIBLE.............19

A. Broad Admissibility of Expert Testimony is

Consistent with the Right to Trial by Jury, the Rules

Enabling Act, and the Liberal Thrust of the Rules

Themselves. 19

a A: A eee

Opinion are Baseless and Misdirected.

1. Fear of Dishonest Expert. ..........0:csceeerreereerenenneeeees 24

2. Fear of Infallible Experts...............00..0.sessesseoserssseesees 24

3. Fear of Incompetent JUTICS.............00csseeeereeseneenseennees 25

D. Courts Possess Other Means Of Ensuring

Reliability Short Of Exclusion. 28

CONCLUSION 29

TABLE OF AUTHORITIES

Cases

Ambrosini v. Labarraque, 10) F.3d 129 (D.C. Cir. 1996) ....22

Amchem Products, Inc. v. Windsor, 117 S. Ct. 2231 (1997). 22

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ......... 15

Barefoot v. Estelle, 463 U.S. 880 (1983)... 15, 27

Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988)..... 17, 20

Browning-Ferris, Indus. v. Kelco, 492 U.S. 257 (1989)........ 22

Carroll v. Morgan, 17 F.3d 787 (Sth Cir. 1994) 0000. 8

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

ESS SED oT passim

Daubert v. Merrell Dow Pharmaceuticals., Inc.,

Ne cccoes 7, 10

Davis v. United States, 165 U.S. 373 (1897) 00000000. 16

Dimick v. Schiedt, 293 U.S. 474 (1953)............. ESN oe 22

Fiero v. Gomez, 865 F. Supp. 1387 (N_D. Cal. 1994)......... 19

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). 16, 17, 18

Galloway v. United States, 319 U.S. 372 (1943) .0.....00000000... 22

General Electric Co. v. Joiner, 118 S. Ct. 512 (1997)... 12, 17

Knight v. Otis Elevator Co., 596 F.2d 84 (3d Cir. 1979).......23

McCullock v. H.B. Fuller Co., 61 F.3d 1038 (2d Cir. 1995)13, 22

Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322 (1979) ...22

Rock v. Arkansas, 483 U.S. 44 (1987) ..0.0.....0.000000000000000000. 20

Soo Line R.R. v. Fruehauf Corp., 547 F.2d 1365

ERSTE SO, CON “

-

State v. Sullivan, 130 A.2d 610 (NJ. 1957) ......-...ccccceceeeesoes 24

Tennant v. Peoria & Pekin Union Ry., 321 U.S. 29 (1944)... 22

United States v. Bonds, 12 F 3d 540 (6th Cir. 1993)............. 13

United States v. Castiello, 915 F.2d 1 (1st Cir. 1990)............. 9

United States v. Chischilly, 30 F 3d 1144 (9th Cir. 1994)..... 13

United States v. Johnson, 575 F.2d 1347 (Sth Cir. 1978)...... 10

United States v. Johnson, 28 F 34 1487 (8th Cir. 1994).......... 9

United States v. Jones, 107 F.3d 1147°(6th Cir. 1997)............ 9

United States v. Locascio, 6 F.3d 924 (2d Cir. 1993).............. 9

United States v. Scheffer, 118 S. Ct. 1261 (1998)........... 15, 21

United States v. Starzecpyzel, 880 F. Supp. 1027

I aa Ae 9

United States v. Valle, 72 F.3d 210 (1st Cir. 1995)............000+. 9

United States v. Williams, 81 F 3d 1434 (7th Cir. 1996)......... 9

Constitutions, Statutes, and Rules

a uiddeeciaea 21

NNR ti Rak RIP 2 23

AEROS 15 aT aN RRR RE Ey 9

SESS ESS RR nat atest ate 8 passim

EN ERR a Pon ois teste en, 15

Other Authorities

Allen, Ronald J., Expertise and the Daubert Decision,

84 J. Crim. L. & Criminology 1157 (1994) oo... g

Beecher-Monas, Erica, Blinded By Science: How Judges

Avoid The Science In Scientific Evidence,

v

71 Temp. L. Rev. 55 (1998) 00... .--cccccccecesccecssseesesssevennve 8

Berger, Margaret A., Procedural Paradigms For Applying

The Daubert Test, 78 Minn. L. Rev. 1345 (1994)8, 16, 20

Black, Bert, Francisco J. Ayala, and Carol Saffran-Brinks,

Science And The Law In The Wake Of Daubert: A New

Search For Scientific Knowledge,

Fee es Cs Pe lela daccticcisindiccesrnctitiscchssssooes 16

Cecil, Joe S., Valerie P. Hans, and Elizabeth C. Wiggins,

Citizen Comprehension of Difficult Issues: Lessons from

Civil Jury Trials, 40 Am. U. L. Rev. 728 (1991)........... 28

Conley, John M. & David W. Peterson, The Science of

Gatekeeping: The Federal Judicial Center's New

Reference Manual on Scientific Evidence,

po hf REET 7

Developments in the Law — the Civil Jury,

110 Harv. L. Rev. 1489 (1997)...000.00.....c cece. 26, 28

Faigman, David L., Elise Porter and Michael J. Saks,

Scientific Evidence After the Death of Frye: Daubert

and Its Implications for Toxic Tort, Pharmaceutical,

and Product Liability Cases,

15 Cardozo L. Rev. 1799 (1994) ooo... o.cccccccccccsecseseeeen 15

Gross, Samuel R., Expert Evidence, 1991

RRR ee 7, 15, 24, 25

Hans, Valerie P., The Jury's Response to Business and

Corporate Wrongdoing, 52 Law & Contemp.

I i cceiemmnnnse 25

Hans, Valerie & Neil. Vidmar, JUDGING THE JURY (1986) ....26

vi

Imwinkelried, Edward J., The Next Step After Daubert:

Developing a Similarly Epistemological Approach to

Ensuring the Reliability of Nonscientific Expert

Testimony, 15 Cardozo L. Rev. 2271 (1994) ................... 8

Jacobs, Michael S., Testing the Assumptions Underlying the

Debate About Scientific Evidence: A Closer Look at

Juror “Incompetence” and Scientific “Objectivity,”

Pe SR 27

Kalven, Jr., Harry & Hans Zeisel, THE AMERICAN

| SE Te Cee es ee Oe OO 26

McCormick, Mark, Scientific Evidence: Defining a New

Approach to Admissibility, 67 lowa L. Rev. 879 (1982) 17

Myers, Martha A., Rules Departures and Making Law: Juries

and Their Verdicts, 13 Law. & Soc. Rev. 781 (1979) ....26

O'Connor, Sandra Day, Juries: They May Be Broken, But We

Can Fix Them, Federal Lawyer 20 (June 1997) ............. 28

Report of the 1997 Forum for State Court Judges, SCIENTIFIC

EVIDENCE IN THE COURTS: CONCEPTS AND

CONTROVERSIES (Roscoe Pound Foundation 1998)......... 4

Rules of Evidence, Hearings Before the Special Subcom. on

Reform of Federal Criminal Laws of the House Comm.

on the Judiciary, 93d Cong., Ist Sess. 87-88 (1973). 18, 25

Saks, Michael J. & Jonathan J. Koehler, What DNA

"Fingerprinting" Can Teach the Law About the Rest of

Forensic Science, 13 Cardozo L. Rev. 361 (1991)........... 8

Tochterman, Ronald W., Daubert: A (California) Trial Judge

Dissents, 30 U.C. Davis L. Rev. 1013 (1997)................. 27

vii

Vandall, Frank J., The Restatement (Third) of Torts: Products

Liability Section 2(b): The Reasonable Alternative

Design Requirement, 61 Tenn. L. Rev. 1407 (1994)...... 23

Vidmar, Neil, MEDICA! MALPRACTICE AND THE AMERICAN

JURY: CONFRO) | ).G THE MYTHS ABOUT JURY

INCOMPETENCE, DEEP POCKETS, AND

OUTRAGEOUS AWARDS (1995) 000 oooocosceeccossreeeee 26

Weinstein, Jack B., Improving Expert Testimony,

20 U. Rich. L. Rev. 473 (1986) occ cccccecoeee 15, 18

Weinstein, Jack B. & Margaret A. Berger,

WEINSTEIN'S EVIDENCE (1987) ooo oooococceccccceeceeees 17

I i 14

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

No, 97-1709

KUMHO TIRE COMPANY, LTD., ET AL.,

Petitioners,

Vv.

PATRICK CARMICHAEL, ET AL.,

Respondents.

On Writ Of Certiorari To The

United States Court Of Appeals

For the Eleventh Circuit

BRIEF OF AMICUS CURIAE

THE ASSOCIATION OF TRIAL LAWYERS OF AMERICA

IN SUPPORT OF THE RESPONDENTS

IDENTITY AND INTEREST OF AMICUS CURIAE

)

The Association of Trial Lawyers of America [“ATLA”]

is a voluntary national bar association whose 50,000 members

primarily represent persons seeking to vindicate their legal

rights in personal injury tort actions, civil rights cases, and

commercial litigation. All parties have given blanket consent

to the filing of all amicus briefs in this case, in letters of

consent filed with the Clerk of the Court.!

! Pursuant to Rule 37.6, Amicus discloses that no counsel for a party

authored any part of this brief, nor did any person or entity other than

2

The issues raised in this case are of overriding importance

to trial practitioners and their clients. The admissibility of

expert testimony is frequently crucial to whether aggrieved

persons will have their day in court. Trial lawyers fully

appreciate the need for reliability in courtroom evidence.

Their experience also gives them a healthy respect for the

ability of American juries to assess intelligently the weight and

credibility of expert testimony.

ATLA’s primary concern is that overly restrictive

limitations keep potentially helpful expert testimony from the

jury, whose responsibility as factfinder is mandated by the

Constitution. Many of the arguments advanced for such

limitations are unsupported and destructive attacks on the

competence of juries. It is ATLA’s view that the objective of

the court’s “gatekeeping” function is not to expand the

judge’s role, but to assist the jury in fulfilling its constitutional

responsibility.

SUMMARY OF THE ARGUMENT

I. This case is chiefly about juries. In Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), this Court

outlined the judge’s responsibility to ensure the reliability of

expert testimony admitted under Fed. R. Evid. 702. But

automatic, rigid application of the four factors discussed in

Daubert does not meet this responsibility. This Court’s

opinion in Daubert clearly did not require that these factors

be applied in every instance without regard to whether they

are indicative of the reliability of the particular expert opinion.

Such wooden application of the Daubert factors would

exclude many types of expert testimony that are routinely

admitted as helpful to the factfinder without enhancing

amicus curiae, its members, or its counsel make a monetary contribution

to the preparation or submission of this brief.

3

A judge’s reliability inquiry under Daubert must

necessarily examine the “fit” between the factors applied and

the reliability of the proffered testimony. The district court’s

failure to consider whether the factors were actually indicative

of Carlson’s reliability constituted an abuse of discretion.

Cross-examination remains a vitally important means of

ensuring reliability where the witness relies on personal

knowledge and experience. In this case, objections that

Carlson’s expert opinion was unreliable did not focus on the

underlying principle that causes of tire failure can be

ascertained by visual inspection, but rather on Carlson’s

application of that principle, which could be probed through

cross-examination and rebuttal.

Il. A general guideline applicable to all expert testimony

should look to the benchmark incorporated by Congress in

Rule 702: Assistance to the finder of fact. The objective of the

judge’s reliability inquiry should be to ensure that the jury has

what it needs to make an intelligent assessment of the weight

and credibility of the expert’s testimony. A judge should

determine whether the basis for the expert’s opinion is

amenable to cross-examination, whether additional indicators

of reliability would aid the jury in its evaluation, and whether

other steps, such as special instructions and juror notetaking,

might help the jury carry out its task. Exclusion of expert

testimony should be the last, not the first resort.

Ill. Under the “assist the jury” guideline, relevant testimony

from a qualified expert should be presumptively admissible,

unless the opponent comes forward with substantial evidence

that the expert’s opinion is mere speculation or subjective

belief. A presumption of admissibility is consistent with the

liberal thrust of the Federal Rules and would minimize abuse.

It also safeguards the constitutional right to trial by jury.

There is no factual basis for arguments that experts

distort the truth for financial gain, that they possess a

misleading “aura of infallibility” in the eyes of jurors, and that

4

jurors are simply not competent to deal with expert testimony.

Empirical studies demonstrate that jurors are capable of

credibility of expert witnesses. Moreover, the justice system

provides means of dealing with such problems directly, rather

than by restricting all expert testimony.

Daubert does not require judges to be amateur scientists,

nor to be professional jurors. Its purpose is to make them

better judges.

ARGUMENT

I. THE TRIAL JUDGE’S GATEKEEPING FUNCTION

REQUIRES FLEXIBLE INQUIRY INTO

RELIABILITY, NOT RIGID APPLICATION OF THE

DAUBERT FACTORS TO ALL EXPERT

TESTIMONY.

This case is chiefly about juries. This Court’s decision in

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

(1993), has sparked a vigorous examination of the role of

science in the courtroom. See, e.g., Report of the 1997 Forum

for State Court Judges, SCIENTIFIC EVIDENCE IN THE COURTS:

CONCEPTS AND CONTROVERSIES iii (Roscoe Pound

Foundation 1998); Development in the Law, Confronting The

New Challenges Of Scientific Evidence, 108 Harv. L. Rev.

1481, 1488 (1995). At the same time, the Court’s decision

has focused attention on the constitutional role of the jury.

New empirical research has shed light on the competence of

juries in dealing with expert testimony. Unfortunately, some

have used the decision to engage in unfounded and

destructive jury-bashing, often for the purpose of garnering

support for legislative “reform” Of tort law.

5

A. The District Court’s Rote Application of the

Daubert Factors Constituted Abuse of Discretion.

1. Daubert Does Not Require Judges To Apply Rigid

Criteria For The Admissibility Of Expert Opinion.

Both parties in this case accept that Daubert gives the

trial judge “some gatekeeping responsibility” to ensure that

“scientific testimony or evidence admitted is not only relevant,

but reliable.” 509 U.S. at 589. Their dispute focuses on the

Court’s “general observations,” setting forth four factors that

might bear on the judge’s inquiry:

1. Whether the expert's theory or technique “can be

(and has been) tested.”

2. “[PJublication (or lack thereof) in a peer reviewed

journal.”

3. The known or potential “rate of error.”

4. A showing of “a particular degree of acceptance”

“within the relevant scientific community

509 U.S. at 593-94.

The trial judge in this case ruled that under Daubert the

court “must apply” these criteria regardless of whether the

expert’s opinion is based on scientific principles or personal

experience. 923 F. Supp. at 1520. The district court did not

explain how any of these factors made Carlson’s testimony

more or less reliable. The court concluded only that Carlson’s

testimony failed to satisfy the four factors and was thus

inadmissible.

The court of appeals acknowledged that under Rule 702,

“jt is the district court’s duty to determine if Carlson’s

testimony is sufficiently reliable and relevant to assist a jury.”

131 F.3d at 1436. However, the court held that the trial judge

erred in applying the Daubert factors to Carison’s testimony,

6

which the court found was based on personal knowledge and

experience, rather than a scientific methodology.”

Petitioner would have this Court transform the Daubert

factors into a rigid set of criteria for admissibility of all expert

testimony, regardless of whether it is based on “scientific

knowledge” or on the witness’ personal knowledge and

experience. Pet. Br. at 19, 32 & 35.5

Such a rigid approach is contrary to this Court’s

admonition in Daubert that the trial. judge’s inquiry “is a

flexible one.” 509 U.S. at 594. It would have been

incongruous for the Court to rule that the Rules eliminated

the rigid Frye test, only to impose a rigid four-part standard

of its own. The Court stated that the suggested factors were

“nonexclusive” and not intended to be “a definitive checklist

or test.” Jd. at 593. Indeed, the Court expressly indicated that

2 ATLA does not understand the court’s use of the phrases “outside the

scope of Daubert” and “inapplicability of Daubert” to deny the judge's

role in assuring reliability, the court was referring specifically to the

application of the four Daubert factors. See 1434-35 & n.4.

3 ATLA suggests that Petitioner’s Brief in this case has not quite lived

up to its advance billing The court below held that the district court

erred in applying the Daubert factors because Carlson’s opinion was not

based on scientific knowledge, but on his personal knowledge and

experience. The Petition for Certiorari carefully laid out the division of

authority among the circuits as to whether Daubert should apply to

In its merits brief, however, Petitioner’s primary contention is

much more narrow and fact-bound: That, contrary to the lower court’s

reading of the record, Carlson did indeed rely on a scientific

methodology. [Pet. Br. at 28] Whether the Daubert factors might not

apply to certain types of experience-based expert testimony, Petitioner

concedes, is “an issue that need not be decided in this case.” (Pet. Br. at

29)

In that neither party takes issue with the core holding of the court

of appeals - that the judge erred in applying the Daubert factors to

expert opinion based on personal experience - ATLA respectfully

suggests that this case is not well-suited as a vehicle for the broad

expansion of Daubert desired by many of Petitioner’s supporting amici.

7

at least two factors should not be applied in every case. The

‘publication or peer review’ factor, for example, may not be

probative of reliability where the technique or principle at

issue is ‘too particularized, too new, or of too limited interest

to be published.” Jd at 594. Additionally, a showing of

“general acceptance” is permissible, but not required. Jd.

A more faithful reading of Daubert was rendered by the

Ninth Circuit on remand:

We read these factors as illustrative rather than

exhaustive; similarly, we do not deem each of them to be

equally applicable (or applicable at all) in every case.

Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d

1311, 1316-17 (9th Cir.), cert. denied, 116 S. Ct. 189 (1995).

2. Application of the Daubert Factors To All Expert

Testimony Would Preclude Many Types Of Expert Testimony

Viewed As Helpful To The Jury Without Enhancing

Reliability.

Experts testify an estimated 40,000 times annually in civil

and criminal cases. Samuel R. Gross, Expert Evidence, 1991

Wis. L. Rev. 1113, 1231 n.348. These witnesses represent a

wide spectrum of scientific, technical and other specialized

knowledge. Rigid application of the Daubert factors would

exclude much of this evidence without enhancing the

reliability of expert testimony.

Many fields of knowledge simply do not employ

experimental procedures to test or falsify hypotheses, nor do

they determine error rates. Some are observational,

continually refining theories to explain new data. The theory

of evolution is an example. See, John M. Conley & David W.

Peterson, The Science of Gatekeeping: The Federal Judicial

Center's New Reference Manual on Scientific Evidence, 74

N.C_L. Rev. 1183, 1201-04 (1996).

Social sciences in particular “rely predominantly on

retrospective observational studies rather than on controlled

experimentation, and do not necessarily meet the Daubert

standard of falsifiability.” Erica Beecher-Monas, Blinded By

Science: How Judges Avoid The Science In Scientific

Evidence, 71 Temp. L. Rev. 55, 69 (1998). Indeed, the aim

of Karl Popper’s discussion of “falsifiability,” which Daubert

cited in discussing the scientific method, was to distinguish

“true” empirical science from such “nonscientific” pursuits as

economics and psychiatry. Ronald J. Allen, Expertise and the

Daubert Decision, 84 J. Crim. L. & Criminology 1157, 1172

(1994). :

Engineering, law, and accounting are other areas that

require specialized training but are not “scientific” in

approach and method. See Edward J. Imwinkelried, The Next

Step After Daubert : Developing a Similarly Epistemological

Approach to Ensuring the Reliability of Nonscientific Expert

Testimony, 15 Cardozo L. Rev. 2271, 2278-79 (1994).

Indeed, as one of Petitioner’s supporting amici points out,

epidemiology, which figured heavily in the Daubert case

itself, would not pass muster under the Daubert factors.

Amicus Brief of American Tort Reform Association at 20-21.

A related type of expert opinion is that of a qualified

member of a profession concerning the standard of care in a

ice case. See, e.g., Carroll v. Morgan, 17 F.3d 787,

789 (Sth Cir. 1994), reh'g denied, 26 F.3d 1117 (Sth Cir.

1994) (board-certified cardiologist testified as to the standard

of medical care for a cardiologist).

Procedural Paradigms for Applying the Daubert Test, 78

Minn. L. Rev. 1345, 1354-55 (1994); Michael J. Saks &

Jonathan J. Koehler, What DNA "Fingerprinting" Can Teach

9

the Law About the Rest of Forensic Science, 13 Cardozo L.

Rev. 361, 362 (1991). Nevertheless, expert opinions based on

these techniques are routinely admitted. See, e.g, United

States v. Jones, 107 F.3d 1147, 1157 (6th Cir. 1997)

(handwriting analysis could not meet Daubert standards, but

was nonetheless admissible as specialized knowledge helpful

to jury); United States v. Starzecpyzel, 880 F. Supp. 1027,

1046-47 (S.D.N.Y. 1995)(same).

Other areas of knowledge are primarily interpretive.

Language interpreters, of course, testify as experts. Fed. R.

Evid. 604. Other uses of language may require interpretation.

See Soo Line R.R. v. Fruehauf Corp., 547 F.2d 1365, 1375

(8th Cir. 1977)expert testimony admissible to interpret

complex technical construction specifications). Prosecutors

frequently make use of witnesses who can interpret jargon

used by criminal organizations. Eg, United States v.

Williams, 81 F.3d 1434, 1442-43 (7th Cir. 1996) (testimony

by a former gang member concerning how to translate the

gang’s code.); United States v. Castiello, 915 F.2d 1, 4-5 (ist

Cir. 1990), cert. denied, 498 U.S. 1068 (1991) (testimony by

narcotics agent interpreting drug jargon in tape recording).

Criminal prosecutions make use of witnesses with

specialized knowledge to explain criminal activity. E.g.,

United States v. Valle, 72 F.3d 210, 214-215 (1st Cir. 1995)

(expert testimony on matters involving dosage, prices, and

other particulars of ingestion and distribution of cocaine

admissible as ukely to be helpful); United States v. Johnson,

28 F.3d 1487 (8th Cir. 1994), cert. denied, 115 S. Ct. 768

(1995) (gang member testified as an expert on gang activity);

United States v. Locascio, 6 F.3d 924, 936-937 (2d Cir.

1993), cert. denied, US. _, 128 L. Ed. 2d 365 (1994)

(FBI agent testimony regarding structure and methods of

organized crime families).

It is not essential that a witness with specialized

knowledge belong to any legitimate discipline. See, e.g., State

v. Brimer, 25S N.W.2d 422 (Neb. 1977)(retired burglar

10

testified as an expert on the issue of whether items found in

defendant’s possession were burglar tools); United States v.

Johnson, 575 F.2d 1347 (Sth Cir. 1978)(witness who testified

that he had smoked marijuana over one thousand times and

had developed the ability to distinguish marijuana from

various sources, permitted to opine that the marijuana in

question was from Colombia).

As Judge Kozinski noted »» :emand in Daubert, strict

application of the Daubert factors would close the gate to a

great deal of expert testimony in criminal cases. Daubert v.

Merrell Dow Pharmaceuticals., Inc., 43 F.3d 1311, 1317 &

n.5 (9th Cir. 1995). ATLA respectfully refers the Court to the

Brief of Amicus Curiae International Association of Arson

Investigators, et al, setting forth the difficulties that

application of Daubert factors would present to the

prosecution of criminal cases.

Significantly, most of the amici supporting Petitioner part

company with the Petitioner on this point, stating that, while

Daubert’s gatekeeping function applies to all expert

testimony, the specific Daubert factors do not apply in every

case. E.g., Brief of the United States as Amicus Curiae at 18

(“the four factors identified in Daubert simply provide

illustrative examples of pertinent considerations”); Brief of

ATRA at 22; Brief of Defense Research Institute at 18, Brief

of Washington Legal Foundation at 18-19.

3. The District Court's Failure To Indicate the “Fit”

Between Criteria and the Validity of Carlson's Testimony

Constituted Abuse of Discretion.

Daubert factors, the gatekeeping function would be

“essentially disabled.” Pet. Br. at 20-21. ATLA suggests that

precisely the opposite is true. Because the purpose of this

gatekeeping function is to ensure the reliability of the

proffered testimony, any indicia selected by the judge must be

1]

light on the validity of the proffered testimony short-circuits

the gatekeeping function. In short, the reliability inquiry

requires some “fit” between any criteria applied by the judge

and reliability of the specific testimony.

On this point, ATLA agrees with the view expressed by

the Solicitor General:

Depending on the expert testimony mvolved, a district

court’s decision to apply the factors identified in Daubert,

or not to apply those factors, could result in an abuse of

discretion. The crucial question in each case is whether

the district court has properly assessed the reliability of

the expert’s testimony in light of the fact in issue and the

expertise involved.

Brief of United States as Amicus Curiae at 20-21.

The district court’s ruling in this case lacked any such

assessment of whether application of the Daubert factors

would shed any light on the reliability of Carlson’s opinion.

For example, because Carlson relied on his years of

experience in examining failed tires, it would not appear that

testing by others with differing experience would either

“falsify” Carlson’s method or arrive at an error rate. Nor did

the district court indicate whether in the field of tire failure

publish articles by individuals such as Carlson about how they

analyze failed tires, so that lack of publication or peer review

might indicate unreliability. General acceptance of Carlson’s

method of interpreting the characteristics of failed tires would

shed little light on the reliability of Carlson’s opinion because

each analyst would necessarily rely on his or her own personal

knowledge and experience.

In short, the district court automatically applied the

sufficient “fit” between those factors and the reliability of

Carison’s testimony in the circumstances of this case. ATLA

12

submits that this rigid application of the Daubert factors

constituted an abuse of discretion. Cf, General Electric Co. v.

Joiner, 118 S. Ct. .512 (1997).

B. Reliability of Carison’s Application of Valid

Methodology Was Subject To Cross Examination.

To state that the Daubert factors bore little relationship

to the reliability of Carison’s expert opinion is not to say that

Petitioner complains of deficiencies in Carlson’s inspection of

the tire, repeated inconsistencies and mistakes in his report,

and failure to account for evidence indicating abuse. Pet. Br.

at 6-8 & 48-49. Indeed, Petitioner asserts that “Carlson

departed significantly from his usual methodology in this

case.” Jd at 33.

The focus of these concerns is not the underlying

engineering principles or Carison’s “visual inspection-process

of elimination” methodology .*

The principle that tire abuse leaves tell-tale marks on a

tire is well accepted, as the tire manufacturers’ trade

association states:

Based on years of experience testing, observing, and

applying scientific principles to the analysis of tire

failures, certain information and basic understandings

about tires have become almost axiomatic. Various forms

of use and abuse lead to certain identifiable and

repeatable conditions of failure. For example, when tres

are run underinflated heat can build up, which ultumately

can lead to failure with certain established indicia.

Brief of Rubber Manufacturers at 24 n.16. Both Carlson and

Petitioner’s own tire failure expert employed visual inspection

of these physical characteristics. 131 F.3d at 1436 n 8.

4 The court found “no inherent flaw in a process-of-elimination form of

proof per se.” 923 F. Supp. at 1520 n.7.

13

Rather, Petitioner’s complaints appear to focus on

Carison’s application of that methodology and his analysis of

witness who relies on out-of-court scientific principles or

techniques, Carlson’s specific application and analysis was

amenable to cross-examination to develop these shortcomings

for the jury. ATLA respectfully submits that the district court

should have inquired whether the reliability of Carlson’s

opinion could be probed sufficiently by cross-examination and

rebuttal, rather than resorting to extraneous indicia of

reliability. Application of a methodology or technique in a

particular instance is generally deemed a matter that goes to

weight, rather than admissibility. United States v. Bonds, 12

F.3d 540, 561 (6th Cir. 1993); United States v. Chischilly, 30

F.3d 1144, 1154 (9th Cir. 1994), cert. denied, 513 U.S. 1132

(1995); McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1042-

44 (2d Cir. 1995).

Il. THE RESPONSIBILITY OF FEDERAL JUDGES IN

RULING ON THE ADMISSIBILITY OF EXPERT

TESTIMONY IS NOT TO RESOLVE CONTESTED

FACTUAL ISSUES, BUT TO ASSIST THE JURY IN

DOING SO.

A. This Court “Should Provide A Guideline

Applicable to the Admissibility of All Expert Testimony

Under Rule 702.

To state that Daubert requires judges to take steps to

ensure the reliability of expert testimony but that the four

Daubert factors are not necessarily or exclusively applicable

leaves judges in a quandary. What guides the selection of the

appropriate steps or factors to ensure reliability in a particular

case? As the Solicitor General states, there is “a strong need

of expert testimony and evidence under Rule 702.” Brief of

United States as Amicus Curiae at 14.

14

Several amici propose that all expert testimony be gauged

by comparison with the standards cr methodology prevalent

in the expert’s particular field of discipline or with the

“intellectual rigor” experts employ in practice outside the

courtroom.

ATLA subnuts that these considerations are merely a

more restrictive formulation of Daubert’s “general

acceptance” factor. Indeed, Petitioner includes these

considerations within its discussion of the general acceptance

factor. Pet. Br. at 43. Comparison with the accepted

knowledge or methodologies of the expert’s discipline, while

sometimes useful, suffers from the same limitations as the

Frye test. Its elevation to a generally applicable criterion

would essentially overrule Daubert’s central holding that the

Frye test as a single standard did not survive the enactment of

Rule 702. 509 U.S. at 589.

ATLA suggests that Congress itself has set the

benchmark to guide the judge’s reliability inquiry under Rule

702: To assist the trier of fact. This is, after all, the purpose of

the judge’s reliability inquiry. Our adversary system does not

pit judges against juries. On the contrary, ATLA suggests, the

judge’s objective should be to ensure that the jury has a

sufficient basis for an intelligent decision as to the credibility

and weight of the expert’s opinion.

B. Historically, Courts Have Deemed Expert

Testimony Sufficiently Reliable For the Jury Where Its

Foundation Is Subject to Cross-Examination or Possesses

Other Indicia Of Reliability.

Common law judges traditionally ruled on the

admissibility of expert testimony, reserving to the jury the task

of evaluating its credibility and weight. See 9 John H.

Wigmore, EVIDENCE IN TRIALS AT COMMON LAW §§ 2549 &

2550, at 639-40 (Chadbourn rev. 1981). “Credibility

determinations, the weighing of the evidence, and the drawing

of legitimate inferences from the facts are jury functions,” this

15

Court has stated, “not those of the judge.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

[It is] the fundamental premise of our entire system that

the purpose of the jury is to sort out the true testimony

from the false, the important matters from the

unimportant matters, and when called upon to do so, to

give greater credence to one party’s expert witnesses than

another’s.

Barefoot v. Estelle, 463 U.S. 880, 902 (1983). See also

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

Prior to the 20th Century, courts generally did not

impose greater reliability requirements on expert testimony

than on testimony from other witnesses. Jack B. Weinstein,

Improving Expert Testimony, 20 U. Rich. L. Rev. 473, 474-

75 (1986). “Traditionally, common law rules of evidence

required a witness to base her expert opinions solely upon her

own observations, or on explicitly stated assumptions drawn

from evidence in the record.” Gross, supra, at 1156.

“Personal observation has always been an adequate basis for

an expert’s opinion, ‘and indeed has been called the most

desirable of all bases.”” Jack B. Weinstein, et al., WEINSTEIN'S

EVIDENCE § 703-7 (1995) (quoting the Advisory

Committee’s Note to Fed.R Evid. 703).

the knowledge and experience of the witness himself, cross-

examination, impeachment and rebuttal by the opposing party

provided the jury with a sufficient basis for assessing the

expert’s credibility. At this time, “courts apparently never

considered the question of whether a body of asserted

knowledge existed, and could be validated, separate from the

qualified expert who ‘possessed’ it.” David L. Faigman, Elise

Porter and Michael J. Saks, Scientific Evidence After the

Death of Frye: Daubert and Its Implications for Toxic Tort,

Pharmaceutical, and Product Liability Cases, 15 Cardozo L.

Rev. 1799 (1994). Scientific principles were, in effect, out-of-

court assertions. An expert witness could not be cross-

16

examined “as to what other scientific men have said .. . or in

respect to the general teachings of science.” Davis v. United

States, 165 U.S. 373, 376-77 (1897).°

Eventually, the progress of science presented courts with

the problem of experts whose opinions depended upon

scientific principles or methods apart from the witness’ own

knowledge and experience. Frye v. United States, 293 F.

1013 (D.C. Cir. 1923), implicitly recognized that a defense

expert’s testimony concerning the results of an early form of

polygraph essentially depended upon on an out-of-court

assertion of scientific knowledge not subject to cross-

examination. Hence, some other means of assuring reliability

was needed as a substitute for cross-examination.

Significantly, Justice Van Orsdel did not undertake a

direct inquiry into the validity of blood pressure response to

lying, despite the fact that defendant argued that scientific

tests supported the theory. Instead, the Frye court took a

more indirect route. “General acceptance” of a scientific

principle or methodology does not establish its reliability. It

serves instead as a “surrogate” or indicator of reliability that

the court deemed sufficient for the jury to assess the weight

and credibility of the expert’s testimony. See generally Bert

Black, Francisco J. Ayala, and Carol Saffran-Brinks, Science

And The Law In The Wake Of Daubert: A New Search For

Scientific Knowledge, 72 Tex. L. Rev. 715, 725-34 (1994).

Although some courts applied Frye 's general acceptance

standard in rigid fashion, others recognized that different

5 The reliability concern raised by reliance on out-of-court scientific

knowledge is analogous to the hearsay problem of admitting out-of-court

statements for their truth. Professor Margaret Berger, for example,

suggests that judges deal with such expert opinion in much the same way

they approach proffers of learned treatises under the hearsay exception,

Fed. R. Evid. 803(18), treating relevant testimony as presumptively

admissible unless the opponent comes Foreward with evidence of

untrustworthiness. Margaret A. Berger, Procedural Paradigms For

Applying The Daubert Test, 78 Minn. L. Rev. 1345, 1367 (1994).

17

~

indicia of reliability might be more appropriate for other types

of scientific testimony. Judge Weinstein and Professor Berger,

for example, proposed seven pertinent factors: (1) the general

acceptance of the technique; (2) the qualifications of the

expert; (3) the technique's previous uses; (4) the potential rate

of error; (5) the existence of specialized literature; (6) the

novelty of the invention; and (7) the degree to which the

Jack B. Weinstein & Margaret A. Berger, 3 WEINSTEIN'S

EVIDENCE § 702[03], at 702-18 (1987). Justice McCormick

suggested 11 factors. Mark McCormick, Scientific Evidence:

Defining a New Approach to Admissibility, 67 lowa L. Rev.

879, 911-12 (1982). One group of scholars identified some 20

different factors employed by courts as surrogate indicators of

reliability. Black, et al, supra at 733-34 & n.114.

The Court in Daubert held that Congress did not

incorporate the Frye standard into the Federal Rules of

Evidence. “[A] rigid general acceptance requirement would

be at odds with the ‘liberal thrust’ of the Federal Rules and

their ‘general approach of relaxing the traditional barriers to

opinion testimony.” 509 U.S. at 588 (quoting Beech Aircraft

Corp. v. Rainey, 488 U.S. 153, 169 (1988)). At the same

time, however, “the trial judge must ensure that any and all

scientific testimony or evidence admitted is not only relevant,

but reliable. 509 U.S. at 589. As the Court subsequently

stated, “the Federal Rules of Evidence . . . leave in place the

‘gatekeeper’ role for the trial judge in screening such

evidence.” General Electric Co. v. Joiner, 118 §. Ct. 512,

517 (1997).

The Court clearly did not intend to replace the Frye test

with the rigid application of its own four factors. What

factors, then, should the trial judge apply? ATLA suggests

that judges should be guided by the benchmark set in Rule

702. Courts should identify those indicia of reliability that will

provide the jury with what it needs to make an intelligent

18

decision as to the proper credibility and weight of the expert’s

C. The Judge’s Role As Gatekeeper Is To Assure

That Expert Opinion Bears Sufficient Indicia Of

Reliability To Assist The Jury In Determining Its Weight

And Credibility.

In enacting the Federal Rules of Evidence, Congress

produced an enormous loosening up of the restrictions on

the admission of expert testimony,-on its basis, on its

form, and on the effective utilization of such testimony

once admitted. This relaxation was needed to give the trier

of fact convenient access to the reliable technical

knowledge that is available in our modern society.

Jack B. Weinstein, Jmproving Expert Testimony, 20 U. Rich.

L. Rev. 473, 482 (1986).

This “loosening up” represents an informed vote of

confidence in the ability of American juries to make proper

use of expert testimony. The purpose of the Rules was to

remove “a heavy and suffocating layer of technicalities wholly

inconsistent with the simple facts of life and the intelligence of

American jurors.” Rules of Evidence, Hearings Before the

Special Subcom. on Reform of Federal Criminal Laws of the

House Comm. on the Judiciary, 93d Cong., Ist Sess. 87-88

(1973)(Statement of Albert Jenner, Chairman of the Advisory

Committee on the Rules of Evidence).

Significantly, the Daubert factors, offered as “general

observations,” are not framed as rules of exclusion. For the

most part, the Court did not describe these considerations as

yes-no tests of admissibility, but instead spoke in terms of

degree, the hallmark of matters that go to the weight of the

For example, the Court did not identify a specific “error

rate” as a ceiling, beyond which an expert’s opinion would be

disqualified. Providing the error rate of a particular

19

methodology would assist the jury in assessing the weight of

the expert’s opinion. The Court Jescribed “publication (or

lack thereof) in a peer reviewea journal” as “a relevant,

though not dispositive, consideration.” 509 U.S. at 594.

Similarly, the Court indicated, evidence of “a particular

degree of acceptance” in the relevant scientific community, is

permissible, though not required. Jd.

The Court’s discussion suggests that where expert

opinion rises above the threshold of mere “subjective belief or

unsupported speculation,” Jd. at 590, the judge’s focus should

be on selecting indicia of reliability that will provide the jury

with a basis for intelligently deciding whether and to what

extent to credit the expert’s opinion. As the Court explains:

Vigorous cross-examination, presentation of contrary

evidence, and careful instruction on the burden of proof

are the traditional and appropriate means of attacking

shaky but admissible evidence.

Id. at 596.

IL RELEVANT TESTIMONY FROM A QUALIFIED

EXPERT IS PRESUMPTIVELY ADMISSIBLE.

A. Broad Admissibility of Expert Testimony is

Consistent with the Right to Trial by Jury, the Rules

Enabling Act, and the Liberal Thrust of the Rules

Themselves.

Applying the jury-centered guideline described above,

ATLA submits that relevant testimony by a properly qualified

expert should be presumptively admissible, unless the

opponent demonstrates that the opinion has no reliable basis

and is mere speculation or subjective belief. Judges should use

the means at their disposal to assure that the jury is equipped

§ Generally, the accuracy of scientific testing is “addressed through

determination of the weight to be accorded the testimony, rather than

through the threshold determination of admissibility.” Fierro v. Gomez,

865 F. Supp. 1387, 1395 n.7 (N_D. Cal. 1994).

20

to make informed assessments of an expert’s opinion. In some

cases, reliability can be probed through cross-examination and

rebuttal of the witness. In other cases, the judge may look to

the presence or absence of indicia of reliability that will assist

the jury. The trial judge might also usc other means of

assisting the jury in its task, including spevial instructions,

allowing juror notetaking and questioning of witnesses, and

other devices.

This Court’s decisions under the Rules have consistently

upheld the Rules’ preference in favor of broad admissibility of

scientific evidence and confidence in the jury’s ability, aided

by cross-examination and the adversarial process, to carry out

its factfinding function. See e.g., Rock v. Arkansas, 483 U.S.

44, 61 (1987). In Daubert, the Court recognized the “liberal

thrust” of the Federal Rules and their “general approach of

relaxing the traditional barriers to ‘opinion’ testimony.” 509

U.S. at 588, quoting Beech Aircraft Corp. v. Rainey, 488

U.S. 153, 169 (1988). Compare Rules 803(6) and 803(8),

providing exceptions to the hearsay rule for business records

and public records “unless the sources of information or other

circumstances indicate lack of trustworthiness.”

Professor Berger has concluded that scientific expert

testimony “should be presumed to be admissible until the

opponent discharges its burden to show the contrary.” She

reasoned that:

the evidentiary policies underlying Daubert’s competing

rationales, efficiency and fairness concerns, and the

structure of the discovery rules, all dictate placmg a

burden on the opponent of the evidence to make a prima

facie showing that the proponent's evidence suffers from

the deficiencies identified in Daubert, before the court has

any obligation to undertake an admissibility

Margaret A. Berger, Procedural Paradigms For Applying

The Daubert Test, 73 Minn. L. Rev. 1345, 1367 (1994).

Indeed, the amicus brief submitted by a group of engineering

21

Amicus Brief of John Allen, et al. at 20.

To hold otherwise, requiring the district court to conduct

a reliability inquiry whenever a party utters a Daubert

objection to a proposed expert, would invite abuse. A full-

scale Daubert hearing can be an expensive proposition,

involving the transportation and court time of the testifying

expert, accompanied by supporting documentation and -- not

infrequently -- supporting experts. A party should not be

permitted to spend an opponent into a disadvantageous

settlement or to deter individuals from pursuing their legal

rights in the first place, by imposing unnecessary expense in

the absence of evidence of genuine reliability concerns.

Such a presumption in favor of admissibility also

comports with the preservation of the constitutional role of

the jury.” Within that constitutional mandate:

It is the jury, not the court, which is the factfinding body.

It weighs the contradictory evidence and inferences,

judges the credibility of witnesses, receives expert

instructions and draws the ultimate conclusion as to the

facts. Its function is to select among conflicting

inferences and conclusions that which it considers most

reasonable. That conclusion, whether it relates to

negligence, causation, or any other factual matter cannot

be ignored.

In Suits at common law, where the value in controversy shall

exceed twenty dollars, the right of trial by jury shall be

preserved, and no fact tried by a jury, shall be otherwise

reexamined in any Court of the United States, than according

to the rules of common law.

U.S. Const., amend vii. The “jury’s core function .° making credibility

determinations” is also a “fundamental premise of our criminal trial

system.” United States v. Scheffer, 118 S.Ct. 1261, 1266 (1998).

22

Tennant v. Peoria & Pekin Union Ry., 321 U.S. 29, 35

(1944). “[BJecause the federal courts operate under the

strictures of the Seventh Amendment,” this Court has stated,

“we are reluctant . . . to take steps which ultimately might

interfere with the proper role of the jury.” Browning-Ferris,

Indus. v. Kelco, 492 U.S. 257, 279 n.26 (1989).

An unduly rigorous exercise of the judge’s gatekeeping

function, “elevating judges to the role of St. Peter at the gates

of heaven” in one court’s memorable phrase, “would

inexorably lead to evaluating witness credibility and weight of

the evidence, the ageless role of the jury.” McCullock v. H.B.

Fuller Co., 61 F.3d 1038, 1045 (2d Cir. 1995). See also

Ambrosini v. Labarraque, 101 F.3d 129, 133 (D.C. Cir.

1996)(“When a court denies the right to have a jury decide a

disputed issue, especially one of a scientific nature, its reasons

for doing so must be strong.”). As this Court has cautioned:

Maintenance of the jury as a fact-finding body is of such

importance and occupies so firm a place im our history

and jurisprudence that any seeming curtailment of the

right to a jury trial should be scrutinized with the utmost

care.

Dimick v. Schiedt, 293 U.S. 474, 486 (1953).

Such vigilance is necessary to avoid “the ‘gradual process

of judicial erosion which . . . has slowly worn away a major

portion of the essential guarantee of the Seventh

Amendment.”” Parklane Hosiery Co., Inc. v. Shore, 439 U.S.

322, 339 (1979)(Rehnquist, J., dissenting), quoting Justice

Black in Galloway v. United States, 319 U.S. 372, 407

(1943)(Black, J., dissenting).

This Court has also emphasized that interpretations of the

Federal Rules must be mindful of the mandate of the Rules

Enabling Act that the rules, “shall not abridge, enlarge or

modify any substantive right.” 28 U.S.C. § 2072. See,

Amchem Products, Inc. v. Windsor, 117 §. Ct. 2231, 2244

(1997)(Fed. R. Civ. Pro. 23).

23

It is a fact of our justice system today that “ in many sorts

of civil litigation, the plaintiffs cannot satisfy their burden of

B. Arguments Against Broad Admissibility of Expert

Opinion are Baseless and Misdirected.

Petitioner and supporting amici advance a number of

; it ieend eimai of

* It is also a fact of life that in any given field of science, many of the

qualified experts are employed by, or are engaged in research funded by

manufacturers or corporations who are frequent defendants in such

litigation. As one court has recognized, undue restrictions on expert

testimony place an especially onerous burden on injured plaintiffs, who

do not have access to the numbers of experts available to manufacturers

Knight v. Otis Elevator Co., 596 F.2d $4, 88 (3d Cir. 1979).

24

American Automobile Manufacturers at 5. ATLA submits

that these argument have little basis in fact. Moreover, the

issues they raise are better addressed by other means than

1. Fear of Dishonest Experts.

Petitioner and several amici raise the specter of “hired

gun” experts who may skew their testimony in the direction of

their financial interests, or even lie..No empirical data is

offered to support this assertion, and some researchers doubt

that dishonest experts are a significant problem. See, ¢.g.,

Samuel R. Gross, Expert Evidence, 1991 Wis. L. Rev. 1113,

at 1120.

To the extent that the problem exists, however, it is not a

matter of invalid science, but of venal scientists. The

2. Fear of Infallible Experts

itnesses are clothed with an “aura of infallibility” in the eyes

As practical and experienced trial lawyers, we knew and,

in fact have long known that intelligent jurors realize that

an expert is only stating his opinion, that his testimony 1s

to be treated as an opinion and is not binding upon the

false testimony.

1957)(sustaining conviction of doctor for perjury as medical expert

25

Jurors and is to be judged in the light of all the evidence in

Se Oe engage jen ohem

Rules of Evidence, Hearings Before the Special Subcom. on

Reform of Federal Criminal Laws of the House Comm. on the

Judiciary, 93d Cong., Ist Sess. 87-88 (1973).

1179. See also Valerie P. Hans, The Jury's Response

Business and Corporate Wrongdoing, 52 Law & Contemp.

Pbims. 177, 189 (1989) (In experimental studies using mock

Finally, the Rules already address the problem of

testimony that is likely to be misleading or confusing to the

jury. As this Court pointed out in Daubert, such testimony is

subject to exclusion under Rule 403. 509 U.S. at 595.

'© Petitioner's sole item of empirical evidence is a National Law Journal

survey which concluded that many jurors found testifying experts to be

credible and affected their verdicts Pet. Br. at 24. The study does not

suggest either that experts mislead jurors or that the jurors were misled

In recent years it has become disturbingly fashionable,

particularly among those with a financial interest in rewriting

tort law in their favor, to engage in what can only be called

“jury bashing.” Ordinary Americans from all backgrounds and

walks of life, the argument goes, suddenly become intellectual

children when they enter the jury box, unable to understand

the evidence put before them and deciding cases on the basis

of emotion.

Such attacks are based almost entirely on anecdotal

stories and “lack substantial empirical bases." Developments

in the Law — the Civil Jury, 10 Harv. L. Rev. 1489, 1511

(1979). Valerie. Hans & Neil. Vidmar, JUDGING THE JURY

131-64 (1986); Neil Vidmar, MEDICAL MALPRACTICE AND

THE AMERICAN JURY: CONFRONTING THE MYTHS ABOUT

JURY INCOMPETENCE, DEEP POCKETS, AND OUTRAGEOUS

AWARDS 175-182 (1995). .

Indeed, as one trial judge states:

27

I would prefer to have a jury of twelve make the call on

prospective jurors on the subject during voir dire

examination, and from having discussed it with swom

jurors after they have been excused, that jurors also are

often distrustful of expert witnesses. . . . My intuition is

the jury, taken as a whole, is typically a great deal more

knowledgeable about science than the judge. In any

group of twelve jurors who have survived the selection

process, there is likely to be at least one juror who has a

far better understanding of the scientific issue than the

judge.

Ronald W. Tochterman, Daubert: A (California) Trial Judge

Dissents, 30 U.C. Davis L. Rev. 1013, 1019 (1997).

As in Daubert, Petitioner is “overly pessimistic about the

capabilities of the jury and of the adversary system generally.”

509 U.S. at 596. See also Barefoot v. Estelle, 463 U.S. 880,

899 (1983)(“Petitioner’s entire argument . . . is founded on

the premise that a jury will not be able to separate the wheat

from the chaff. We do not share in this low evaluation of the

adversary process.”)

This Court’s confidence -- and that of the constitutional

framers -- is well placed. Recent empirical studies “strongly

rebut[] the broad assumption that jurors are not competent to

understand complicated scientific evidence.” Michael S.

Jacobs, Testing the Assumptions Underlying the Debate

About Scientific Evidence: A Closer Look at Juror

“Incompetence” and Scientific “Objectivity,” 25 Conn. L.

Rev. 1083, 1090, 1094-98 (1993).

concerning “ju’ competence in ordinary trials,” Joe S. Cecil,

Project Director in the Division of Research at the Federal

Judicial Center, and Valerie P. Hans, Professor of Criminal

Justice and Psychology at the University of Delaware,

concluded that “doubts about jury competence expressed by

jury critics stand in sharp contrast to the judgments of

scholars who conduct research on jury decisionmaking.” Joe

S. Cecil, Valerie P. Hans, and Elizabeth C. Wiggins, Citizen

Comprehension of Difficult Issues: Lessons from Civil Jury

Trials, 40 Am. U. L. Rev. 728, 744-45 (1991). To the

contrary, “empirical evidence consistently points to the

general competence of the jury” in such ordinary cases. /d. at

745.

Indeed, a Federal Judicial Center study constituting “the

first, and to date only, systematic examination of reported

performance of jurors across a substantial number of

demanding civil trials,” concluded that “the overall picture of

are capable of deciding even very complex cases.” Jd. at 764.

ATLA respectfully recommends to this Court the Brief

Amicus Curiae of Neil Vidmar et al., in which a group of

highly qualified professors and researchers set forth detailed

competence of juries.

D. Courts Possess Other Means Of Ensuring

Reliability Short Of Exclusion.

Where the ability of jurors to comprehend and evaluate

expert testimony is a matter of concern in a particular cases,

judges should make use of the wide variety of devices that

may aid the jury in carrying out its task.

Potentially helpful devices include tailoring the form and

timing of the court’s instructions to make them more

accessible and useful; permitting jurors to ask questions of

generally, Developments in the Law: The Civil Jury, 110

Harv. L. Rev. 1408, 1503-11 (1997), Sandra Day O'Connor,

Juries: They May Be Broken, But We Can Fix Them, Federal

Lawyer 20, 23-24 (June 1997). In short, exclusion of

evidence should be the last, not the first resort.

29

Daubert did not require judges to become amateur

scientists, nor professional jurors. The objective of the judicial

gatekeeping function should not be to prevent the jury from

hearing difficult expert testimony. Rather judges should focus

on assisting the jury in carrying out its constitutional

responsibility.

CONCLUSION

For the foregoing reasons, Amicus Curiae urges this

Court to affirm the judgment of the Court of Appeals.

Respectfully submitted,

Jeffrey Robert White

1050 31st St., NW

Washington, DC 20007

(202) 965-3500

October 19, 1998