# Amicus Curiae Brief — Kumho Tire Co. v. Carmichael

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0174%3A22

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 137

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0174%3A22. Public record. Not legal advice.