Amicus Curiae Brief — Kumho Tire Co. v. Carmichael

Supreme Court, U.S.

61) FILED

No. 97-1709 7 | OCT 16 pnp

oe OFFICE OF

THE

Supreme Court of the United S save

OCTOBER TERM, 1997

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

HERCULES TIRE & RUBBER COMPANY, INC.,

Petitioners,

v.

PATRICK CARMICHAEL, AN INDIVIDUAL AND FATHER AND NEXT

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

CARMICHAEL, AN INDIVIDUAL AND MOTHER AND NEXT FRIEND

OF CARINA HORN, A MINOR, AND ADMINISTRATRIX OF THE

ESTATE OF JANICE HORN, CARINA HORN, A MINOR, LEONA

CARMICHAEL, SHAMEELA CARMICHAEL, AND NATIMAH

CARMICHAEL,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

BRIEF OF AMICI CURIAE TRIAL LAWYERS FOR

PUBLIC JUSTICE, P.C., PUBLIC CITIZEN, INC., AND THE

CENTER FOR AUTO SAFETY IN SUPPORT OF

RESPONDENTS

William A. Rossbach, Esq. Gerson H. Smoger, Esq.

Rossbach Brennan, P.C. (Counsel of Record)

401 No. Washington Street Smoger & Associates, P.C.

Missoula, MT 59802 13250 Branch View Lane

(406) 728-8878 Dallas, TX 75234

(972) 243-5297

Brian Wolfman, Esq.

Public Citizen Litigation Group Arthur H. Bryant, Esq.

1600 20" Street, N.W. Sarah Posner, Esq.

Washi D.C. 20009 Trial Lawyers for Public

(202) 588-1000 Justice, P.C.

1717 Massachusetts Ave. N.W.

Washington, D.C. 20036

(202) 797-8600

October 19, 1998 a

— WN

copy

| BEST AVAILABLE

TABLE OF CONTENTS

GRR AE vidi he AeA inl

ARGUMENT

I. RULE 702 WAS SPECIFICALLY DESIGNED TO

EXPAND THE ADMISSIBILITY OF A WIDE RANGE

OF EXPERT TESTIMONY, PARTICULARLY THAT

BASED UPON PERSONAL EXPERIENCE AND

WNT s 4s da dantaiudubnsnemcnbeen eeinaloe: 4

Il. PRIOR TO DAUBERT, COURTS PLAYED A

LIMITED GATEKEEPING ROLE -- /.E., TO ENSURE

THAT EXPERT TESTIMONY WAS RELEVANT

AND WOULD ASSIST THE TRIER OF FACT. ....... 5

Il. THE COURTS’ LIMITED GATEKEEPING ROLE

PRIOR TO DAUBERT WAS ROOTED IN OUR

CIVIL JUSTICE SYSTEM’S CONFIDENCE IN THE

ROLE OF JURIES AND THE ESTABLISHED

MECHANISMS FOR CHALLENGING WEAK

OEE 60's. 6h 0N a vac edatn db io ake ae 6

IV. PRIOR TO DAUBERT, SOME COURTS IN CERTAIN

TYPES OF CASES STRUGGLED WITH AN

UNNECESSARILY RESTRICTIVE STANDARD FOR

EVALUATING THE ADMISSIBILITY OF EXPERT

bee cle cc gt OR ee pI ars RA ee ga eae 10

Vv. THE MAIN THRUST OF DAUBERT WAS TO

LIBERALIZE THE TEST FOR EVALUATING THE

ADMISSIBILITY OF EXPERT EVIDENCE ......... 12

VI. THE EXPERT TESTIMONY AT ISSUE IN THIS

CASE WOULD HAVE BEEN ADMISSIBLE EVEN

UNDER THE STANDARD THAT PREVAILED

I Sh 5 Aas G iawn es Cotsen bade O's 14

VII. PETITIONERS’ APPROACH WOULD BE MORE

RESTRICTIVE THAN THE STANDARD THAT

PREVAILED BEFORE DAUBERT, AND IS THUS

CONTRARY TO THE LIBERALIZING THRUST

I sa Cav iek L5G ccahycvesneeieces 18

Vill. THE APPROACH REQUESTED BY PETITIONERS

WOULD BE A DRAMATIC AND UNWISE

DEPARTURE FROM LONG-ESTABLISHED

FEDERAL EVIDENCE LAW ................0-. 23

SS int SLURS Nia Vodecicbecccvecdees 26

TABLE OF AUTHORITIES

Page

CASES:

Ambrosini v. :

101 F.3d 129 (D.C. Cir. 1996), cert. dismissed,

co RT RE CAEN ae Ce ae 21

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ...cccccccccoo. 7

Barefoot v. Estelle, 463 U.S. 880 (1983) ooccccccccccccceceseseseseeseseseoee. 7

Bogosian v Mercedes-Benz of North America, Inc.,

EE ST OO TE 19

Bonner v. Polacari, 350 F.2d 493 (10th Cir. 1965) ......0.cccccccceee. 24

Brock v. Merrell Dow Pharmaceuticals, Inc.,

874 F.2d 307, modified, 884 F.2d 166 (Sth Cir. 1989)

cert. denied, 494 U.S. 1046 (1990) ooo. .cccccccccccceecosecreneeeseseeres 11

California v. Green, 399 U.S. 149 (1974) ooocccccccccccecececesevesesvevesees s

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

ER Ls AN a AAS 8

Circle J Dairy, Inc. v. A.O. Smith Harvestore Products, Inc.,

AAR eS ee ee ee 23

Colgrove v. Battin, 413 U.S. 149 (1973) ooocccccccccccccccecccesceeseoveeseoes 7

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

(10th Cir.), cert. denied, 117 S. Ct. 611 (1996) ooocccccccccccccceoes 21

Cummins v. Lyle Industries, 93 F.3d 362 (7th Cir. 1996) .......... 20

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

EE Ce passim

Davis v. Alaska, 415 U.S. 308 (1974) ooo... ccccccceccscecerseesesesesesneseeee 8

DeLuca v. Merrell Dow Pharmaceuticals, Inc.,

ELE ae ae 11

Dimick v. Scheidt, 293 U.S. 474 (1935) .o...ccccccccecccsesesseeeeeseseseeeeee. 7

Dixon v. International Harvester, 754 F.2d 573

SPSS ee ee 19

Frye v. United States, 293 F. 1013

KR i Ae Pa ee ee passim

Gentry v. Mangum, 466 S.E.2d 171, 185 (W. Va. 1995) ............ 14

Hanks v. Korea Iron & Steel Co., 993 F. Supp. 1204

ae = Oe ee ae ee 18

Hanna v. Fletcher, 261 F.2d 75 (D.C. Cir. 1958),

Cart. Gamiad, 359 U.S. D2 (UDG) an caccccececcscecevesececoeeccssessecees 23

lacobelli Construction Inc. v. County of Monroe,

RT, oe STE 14, 21

In re Japanese Electronic Products Antitrust Litigation,

Se ceceatitiicatin it 6

Kannankeril v. Terminix International Inc.,

a 21

Kelsay v. Consolidated Rail Corp., 749 F.2d 437

REE RARER SR Se er 24

Kentucky v. Stinger, 482 U.S. 730 (1987) oo.cccccccoccccesccseseessveveeenees 8

Masayesva v. Hale, 118 F.3d 1371 (9th Cir. 1997),

cert. denied, 118 S. Ct. 1098 (1998) ooo ce ccccceseeeeeeeecoeeee-. 21

Mason v. Woods, 172 F.2d 857 (Em. 3 eee eeeee 24

Moran v. Ford Motor Co., 476 F.2d 289 (8th Cir. _ pare 16

Noel v. United Aircraft Corp., 342 F.2d 232

SA NE a a ae 18

In re Paoli Railroad Yard PCB Litigation,

916 F.2d 829 (3d Cir. 1990), cert. denied,

(ae an lee 11

Parklane Hosiery Co. v. Shore, 439 U.S. 322 ES 7

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

(D.C. Cir. 1988), cert. denied, 493 U.S. 882 (1989) ............... 11

Rocky Mountain Helicopters, Inc. v. Bell Helicopters

Textron, 805 F.2d 907 (10th Cir. 1986) oo... ccccccccceeosceoes-.. 17

Ruud v. U.S., 256 F.2d 460 (9th Cir.),

cert. denied, 358 U.S. 817 (1958) oooce.ececccccccccesceeoeeseeseos--.. 24

Smith v. Ford Motor Co., 882 F. Supp. 770

et EO ee LL 14

Smith v. Uniroyal, Inc., 420 F.2d 438 (7th Cir. A 14

Stanczyk v. Black & Decker, Inc., 836 F. Supp. 565

REIL Niger ee ee ee ee 20

Stempel v. Chrysler Corp., 495 F.2d 1247

EE a SE 17

In re TME Litig. Cases Consol. II, 922 F. Supp. 997

I TI Giicicertiacati inane 24

Vv

Tyus v. Urban Search Management, 102 F.3d 256

(7th Cir. 1996), cert. denied, 117 S. Ct. 2409 (1997) .........

U.S. v. 1040.30 Acres of Land, 144 F. Supp. 199

a) Oa ee

U.S. v. 14.38 Acres of Land, 80 F.3d 1074

REE Re LUE art a eR 8,

U.S. v. Cordoba, 104 F.3d 225 (9th Cir. 1997) ooo... ccececeee.

U.S. v. Downing, 753 F.2d 1224 (3d Cir. 1985) oo... .cecccccceee.

U.S. v. Jones, 107 F.3d 1147 (6th Cir.), cert. denied,

Sp RG RC ee eC

U.S. v. Marler, 614 F.2d 47 (Sth Cir. 1980) ......ccccccccccccceseeue.

United States v. Sinclair, 74 F.3d 753 (7th Cir. 1996) ...........

Vlases v. Montgomery Ward & Co., 377 F.2d 846

ee re EL eT tN EES

Walton v. Sherwin-Williams Co., 191 F.2d 277

8 REL NE SE SE 2 ae

Watkins v. Telsmith, Inc., 121 F.3d 984 (Sth 1997) ...0.0.0........

Welders Supply, Inc. v. American Emp. Insurance Co.,

| RS

RULES:

Fed. R. Evid. 104(a) .................. catia ia ial titi

tes ees de cpree ite ag TN Pac ET ETE TT 5

eh et ge nn CTA EDDIE LEC ORE Ae eT 12

te ci ee LE OSD NT, passim

MISCELLANEOUS :

Huber, P., LIABILITY: THE LEGAL REVOLUTION AND ITS

ee 9

Imwinkelreid, "The Standard for Admitting Scientific

Evidence: A Critique from the Perspective of Juror

Psychology,” 100 MILITARY L. REV. 99 (1983) ................ 10

Developing a Similarly Epistemological Approach

to Ensuring the Reliability of Nonscientific Expert

Testimony," 15 CARDOZO L. REV. 2271 (1994) ........... 18, 22

Kalven and Zeisel, THE AMERICAN JURY (1966) Giitbetniiitineatete 9

Ladd, “Expert Testimony,” 5 VAND. L. REV. 414 (1952) ........ 4

Marino & Marino, “The Scientific Basis of Causality

in Toxic Tort Cases,” 21 DAYTON L. REV. 1 (1995) ........... 22

Roisman, “The Courts, Daubert, & Environmental

Torts: Gatekeepers or Auditors?,”

14 PACE ENVT’L L. REV. 558 (1997) ..0....cccccccococossccecceseecesees 24

vii

Vidmar, "Pap and Circumstance: What Jury Verdict

Statistics Can Tell Us about Jury Behavior and

the Tort System,” 28 SUFFOLK U. L. REV. 1205 (1994) ......

Weinstein, “Improving Expert Testimony,”

SOU. RACES, L.. BBV. S73 (EGBG). eccecercccneseicccencecesssesssccoccens

Vill

INTEREST OF AMICI CURIAE'

Trial Lawyers for Public Justice (“TLPJ”) is a national public

interest law firm dedicated to pursuing justice for the victims of

corporate and governmental abuses. Litigating throughout the

federal and state courts, TLPJ prosecutes cases designed to

advance consumers’ and victims’ rights, environmental protection

and safety, civil rights and civil liberties, occupational health and

employees’ rights, the preservation and improvement of the civil

justice system, and the protection of the poor and the powerless.

Public Citizen was founded in 1971 as a public advoca-y,

lobbying, and litigation organization. On behalf of its 120,000

members, Public Citizen has worked throughout its history for a

strong civil justice system. In particular, Public Citizen opposes

any curtailment in the ability of ordinary citizens to obtain

compensation in suits involving faulty or defective consumer

products. The organization takes a special interest in cases, such

as the suit now before this Court, involving automotive safety,

because it has long advocated in this area. Public Citizen believes

that a vibrant civil justice system has led to safer vehicles and

related components (such as tires).

The Center for Auto Safety is a nationwide consumer

organization with approximately 15,000 members that, for more

than 28 years, has worked to make automobiles and their

component parts safer and more economical. Of particular

relevance here, the Center has worked in the courts and before

federal regulators on issues involving tire safety, most notably the

Firestone 500 tire controversy, which involved hundreds of

‘Letters of consent to the filing of this brief have been filed with the

Clerk. No counsel for any party authored the brief in whole or in part, and no

person or entity other than amici curiae made any monetary contribution to its

preparation or submission.

injuries and known fatalities and led to the recall of over 15

million defective tires.

Amici are gravely concerned that the restrictive standard of

admissibility Petitioners seek in this case would undermine the

very purpose of Rule 702 of the Federal Rules of Evidence. The

rule Petitioners urge, which would require trial judges to apply the

factors set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579 (1993), to areas of expertise where the factors are

inappropriate, would only serve the purpose of removing the civil

decision-making function from juries and vesting judges with

inordinate power over the determination of civil cases. TLPJ

strongly opposes Petitioners’ effort to improperly circumscribe the

role and responsibility of juries in our system of justice and to

thereby unconscionably limit access to justice.

SUMMARY OF THE ARGUMENT

The fundamental basis for the designation of a witness as an

expert is that the witness has some specialized knowledge that

most lay persons on a jury would ordinarily not have, and that the

specialized knowledge would assist the jury in_ its

decision-making function. By design, under Federal Rule of

Evidence 702, there is a great breadth to this possible testimony,

including testimony derived from “knowledge” acquired by

education, skill, experience and wraining, and the standard for

admissibility has been a liberal one.

Petitioners and many of their supporting amici argue that the

gatekeeping required of Rule 702 means that some variation of the

four factors specifically discussed in Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), must be applied in

every case involving an expert witness. Such an admissibility

requirement for expert testimony is contrary to long-established

precedent regarding the admission of expert testimony, both

before and after the adoption of Rule 702, and does violence to

both Daubert and the purposes underlying Rule 702.

Petitioners’ interpretation of Rule 702 would render

inadmissible the testimony of many experts who have testified

without controversy since the inception of the Federal Rules of

Evidence. It would essentially turn Daubert — which stressed the

“liberal thrust” of the Federal Rules of Evidence and their

“general approach of relaxing the traditional barriers to opinion

testimony” — upside down. Daubert rejected the Frye rule

excluding novel scientific testimony as unduly restrictive and held

that evidence barred under Frye would be admissible under Rule

702. By ignoring all of this — the very essence of Daubert — and

focusing upon language in Daubert addressed to the specific type

of novel scientific testimony at issue in that case, Petitioners

would have this Court create artificial and highly-exclusionary

restrictions applicable to all expert testimony. The result would

be that more experts would be excluded under Daubert than

would ever have been excluded under Frye, a result this Court

could never have anticipated when it held in favor of the

Petitioners in Daubert.

By urging creation of this new, greatly-heightened standard for

admissibility, Petitioners seek to rob the jury of its role as arbiter

of the weight and credibility of the evidence. Petitioners’

approach would hinder access to justice by increasing summary

judicial dismissal of lawsuits. Petitioners’ approach would also

dramatically increase the necessary costs of litigation, as all

parties would be forced to rely increasingly upon academicians

who can provide testimony within the confines of Petitioners’

parameters, at the expense of traditional witnesses who have long

based their opinions upon personal experience and training.

Similarly, Petitioners’ approach would massively increase the

costs to the courts and the litigants, requiring interminable Rule

702 hearings. Neither the drafters of Rule 702 nor this Court in

Daubert intended such a result.

ARGUMENT

I. RULE 702 WAS SPECIFICALLY DESIGNED TO

EXPAND THE ADMISSIBILITY OF A WIDE RANGE

OF EXPERT TESTIMONY, PARTICULARLY THAT

BASED UPON PERSONAL EXPERIENCE AND

TRAINING.

Rule 702 expressly states that its purpose is to admit expert

testimony about “scientific, technical, or other specialized

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

evidence or to determine a fact in issue.” Fed R. Evid. 702. Rule

702 thus contemplates admission of a wide range of expert

testimony. As the Advisory Committee Note to Rule 702 states:

The rule is broadly phrased. The fields of knowledge which

may be drawn upon are not limited merely to the “scientific”

and “technical” but extend to all “specialized” knowledge.

Similarly, the expert is viewed, not in a narrow sense, but as

a person qualified by “knowledge, skill, experience, training,

or education.” Thus within the scope of the rule are not only

experts in the strictest sense of the word, e.g., physicians,

physicists, and architects, but also the large group sometimes

called “skilled” witnesses, such as bankers or landowners

testifying to land values.

The drafters of Rule 702 thus expressly intended to admit any

specialized testimony that would assist the trier of fact, and

particularly intended to admit testimony based upon personal

experience, i.e., “skill, experience, training and education.” There

is no indication that the drafters of Rule 702 intended to impose

any arbitrary limitations upon the admissibility of expert

testimony based upon a scientific methodology or any specific

factors. As the Rule itself and the Advisory Committee’s note

make clear, testimony that may be characterized as “technical” or

“skilled” is admissible under Rule 702 if that testimony is based

upon the offering expert’s own “knowledge, skill, experience,

training, or education,” and is relevant under Fed. R. Evid. 401.

fl. PRIOR TO DAUBERT, COURTS PLAYED A

LIMITED GATEKEEPING ROLE -— .E., TO ENSURE

THAT EXPERT TESTIMONY WAS RELEVANT AND

WOULD ASSIST THE TRIER OF FACT.

Although the term “gatekeeper” arises out of language from

Daubert, the Federal Rules of Evidence have always imposed on

trial courts the role of evidence gatekeepers, whether the evidence

comes from experts or other sources. Rule 702 has likewise

always required that courts exercise a gatekeeping role in

determining whether a particular purported expert should testify

in a given case. In the vast majority of cases, the trial judge’s

gatekeeping function has consisted of determining whether the

expert is qualified by some specialized knowledge, whether the

testimony is relevant to the issues in dispute, and, primarily,

whether the testimony to be offered will be helpful to assist the

trier of fact, i.e., that it pertains to a subject and opinions that lay

jurors would not be expected to know. As the Advisory

Committee stated:

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

testimony is to be determined on the basis of assisting the

trier of fact. “There is no more certain test for determining

when experts may be used than the common sense inquiry

whether the untrained layman would be qualified to

determine intelligently and to the best possible degree the

particular issue without enlightenment from those having a

specialized understanding of the subject involved in the

dispute.”

Fed. R. Evid. 702, Notes of Advisory Committee (citation

omitted).

Before Daubert, there was general agreement among the trial

courts as to how to discharge this “gatekeeping” function. The

proponent of the expert testimony generally had the burden of

establishing a prima facie basis for admissibility by showing that

there was a particular question in the case for which expert

opinion would be helpful, that the expert was qualified, and that

the expert by training, education, or experience could testify to

that particular issue. Opponents of the proposed testimony could

then challenge the admissibility of the testimony in one of three

ways: a) in an in limine motion or on voir dire, challenging the

expert by trying to show that the expert was not qualified to

render an opinion on the particular subject matter; b) through an

argument that the proposed testimony would either not provide

assistance to the trier of fact or that it would be more prejudicial

than probative; or c) through a challenge to the methodology

employed by the expert, primarily on the ground that the

methodology was not generally accepted by the relevant

community from which it ostensibly was derived, pursuant to the

holding in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). In

order to succeed in this Frye challenge, the opponent of the

testimony would have the burden of bringing forth affirmative

evidence demonstrating that the basis for the testimony was novel

and not generally accepted. On the whole, practicing attorneys

came to understand which types of experts and testimony would

be admissible, and minimal court time was generally expended

debating the admissibility of expert testimony.

Ill. THE COURTS’ LIMITED GATEKEEPING ROLE

PRIOR TO DAUBERT WAS ROOTED IN OUR CIVIL

JUSTICE SYSTEM’S CONFIDENCE IN THE ROLE

OF JURIES AND THE ESTABLISHED

MECHANISMS FOR CHALLENGING WEAK

EVIDENCE.

Before Daubert, courts favored admissibility of testimony under

Rule 702. See, e.g., In re Japanese Electronic Products Antitrust

Litigation, 723 F.2d 239, 279 (3d Cir. 1983). The restrained

nature of the gatekeeping role played by judges prior to Daubert

was premised upon the specific language of Rule 702, trust in the

power of cross-examination to discern the truth, and a

fundamental belief in the role the jury plays as the finder of fact

in our system of justice. Jd.

In part, this last premise derived from the command of the

Seventh Amendment. To quote the Chief Justice: “The right to a

jury trial in civil cases at common law is fundamental to our

history and jurisprudence.” Parklane Hosiery Co. v. Shore, 439

U.S. 322, 338 (1979) (Rehnquist, J., dissenting).’ This Court thus

has-consistently emphasized that “credibility determinations, the

weighing of the evidence, and the drawing of legitimate

inferences from the facts are jury functions.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). Indeed, it is the very

“purpose of the jury . . . 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. Such matters occur routinely in

the American Judicial system, both civil and criminal.” Barefoot

v. Estelle, 463 U.S. 880, 902 (1983) (quoting opinion of district

court with approval).

This Court has consistently recognized that adequate discovery,

effective trial advocacy, and judicial oversight will prevent

? As Chief Justice Rehnquist noted: “The founders of our Nation

considered the right of trial by jury in civil cases an important bulwark against

tyranny and corruption, a safeguard too precious to be left to the whim of the

sovereign or, it might be added, to that of the judiciary.” /d. at 340-44. The

Seventh Amendment commanded courts to maintain the common law

distinction between the province of the jury and the court and to defer to juries

in resolving matters of credibility and fact-finding. See Dimick v. Scheidt, 293

U.S. 474, 486 (1935) (maintenance of the jury as the fact-finding body is central

to our history and jurisprudence). See also Colgrove v. Battin 413 U.S. 149,

156-57 (1973).

miscarriages of justice as a consequence of phony, but persuasive

experts. As stated in Daubert:

[R]espondent seems to us to be overly pessimistic about the

capabilities of the jury and of the adversary system generally.

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

509 U.S. at 596 (citation omitted).

Consistent with Daubert, this Court has repeatedly emphasized

that the “opportunity for cross-examination . . . is critical for

ensuring the integrity of the fact-finding process.” Kentucky v.

Stinger, 482 U.S. 730, 736 (1987). Cross-examination is “the

principal means by which the believability of a witness and the

truth of his testimony are tested.” Davis v. Alaska, 415 U.S. 308,

316 (1974). Indeed, cross-examination is the “greatest legal

engine ever invented for the discovery of truth.’” California v.

Green, 399 U.S. 149, 158 (1974). Or, as was stated by the

Eleventh Circuit below, “the trial court’s role as gatekeeper is not

intended to serve as a replacement for the adversary system.”

Carmichael v. Samyang Tire, Inc., 131 F.3d 1433, 1435 (1 1th Cir.

1997) (quoting United States v. 14.38 Acres of Land, 80 F.3d

1074, 1078 (Sth Cir. 1996)).

Indeed, in the conte, of our adversary system, these holdings

make perfect sense. Cross-examination often subjects a witness to

scrutiny that is longer-lasting, more intense, and more extensive

in the breadth of subjects examined than most any process

occurring within the course of scientific debate. There are rarely

time limits placed on cross-examination. On the stand, a witness

may be obliged to endure a line-by-line scrutiny of any article,

experience, or evidence the witness seeks to rely upon, being

required to explain and defend every point. Moreover,

cross-examination is not limited to the specific parameters of the

paper, report, training, or experiences that are the foundation of

the expert’s conclusion; almost anything the expert has done,

said, or written is open to examination. On cross-examination, an

expert witness can be subjected to close questioning not only on

the basis of the specific sources of the testimony given, but can be

impeached by anything he or she has said or written that is

potentially inconsistent. An expert’s motives and credentials can

be scrutinized in ways unimaginable to peer review editors,

referees, conference organizers, supervisors, employers, or

colleagues. Not surprisingly, then, empirical evidence has shown

that lay juries are highly competent as finders of fact in even

complex litigation.

Petitioners nonetheless contend it is “common knowledge” that

jurors do not handle technical testimony well. Pet. Br. at 24

(citing P. Huber, LIABILITY: THE LEGAL REVOLUTION AND ITS

CONSEQUENCES 14(1988)). But that “common knowledge” is

anecdotal at best and has no valid empirical support. In the

seminal study of jury behavior, KALVEN & ZEISEL, THE

AMERICAN JURY (1966), Professors Kalven and Zeisel conclude

that their empirical data is “a stunning refutation of the hypothesis

that the jury does not understand” the facts. /d. at 157. Indeed,

their studies “corroborate strikingly the hypothesis that the jury

follows the direction of the evidence.” Jd. at 161.

Subsequent scholarly evaluations have confirmed Professors

Kalven and Zeisel’s conclusions. In 1983, for example, noted

evidence scholar Edward S. Imwinkelreid reviewed a large

number of empirical studies of jury understanding of complex

and scientific evidence. Based on his review of the evidence from

these studies, he determined that juries are capable of

understanding, weighing, and evaluating complex scientific and

medical evidence, and are not unduly influenced even by expert

scientific testimony. Imwinkelreid, “The Standard for Admitting

Scientific Evidence: A Critique from the Perspective of Juror

Psychology,” 100 MILITARY L. REV. 99, 114-16 (1983). He

concluded that there was no “hard empirical evidence” supporting

the argument that “a lay jury cannot critically evaluate scientific

evidence.” /d. at 117. In a more recent analysis of juror behavior

studies, Professor Neil Vidmar agreed, determining that “no

justifiable scientific basis exists to support” the claims of

commentators like Huber and others critical of the jury system.

Vidmar, “Pap and Circumstance: What Jury Verdict Statistics Can

Tell Us about Jury Behavior and the Tort System,” 28 SUFFOLK

U. L. REV. 1205, 1206 (1994). His analysis of the research, “in

most respects, gave [the jury] a favorable grade for performance

of its assigned tasks. /d. at 1234.

IV. PRIORTODAUBERT, COURTS IN CERTAIN TYPES

OF CASES STRUGGLED WITH AN

UNNECESSARILY RESTRICTIVE STANDARD FOR

EVALUATING THE ADMISSIBILITY OF EXPERT

TESTIMONY.

Given the constitutional mandate and the judiciaries’ own

abiding belief in the jury system, it is instructive to look at those

limitations on the testimony of experts that existed before this

Court’s decision in Daubert. Before Daubert, the major judicial

departure from strict adherence to Rule 702 was reliance on the

pre-Rule 702 holding in Frye v. United States, 293 F. 1013 (2d

Cir. 1923). Frye purported to limit expert testimony regarding

novel scientific evidence on the theory that a trier of fact could be

misled by such evidence (in that case the precursor to the

polygraph test). The shortcomings of the Frye test set the stage

for this Court's ruling in Daubert.

Following Frye, courts essentially held that, when testimony

was not based upon personal experience or training, but rather

upon an interpretation of scientific data resulting from a novel test

(e.g., a polygraph test) or on the interpretation of someone else’s

scientific research and writings (e.g., an epidemiologist’s

10

evaluation), the testimony offered had to be based on scientific

principles that were generally accepted in the relevant scientific

community. The Frye test, however, caused a number of

problems for the federal courts.

Under Frye, courts struggled with trying to select the “relevant

scientific community” and the level of agreement needed for

“general acceptance.” See generally U.S. v. Downing, 753 F.2d

1224, 1236 (3d Cir. 1985). These issues were particularly

problematic in cases involving the effects of chemical and

pharmaceutical agents and toxicological and epidemiological

expert evidence. Thus, some courts differed over whether the

extrapolation of the results of animal testing could be applied to

humans. See, e.g., Jn re: Paoli Railroad Yard PCB Litigation, 916

F.2d 829, 853 (3d Cir. 1990), cert. denied, 499 U.S. 961 (1991);

Richardson v. Richardson-Merrell, Inc., 857 F.2d 823, 831 (D.C.

Cir. 1988), cert. denied, 493 U.S. 882 (1989). Courts also

struggled over whether an expert who based his opinions on a

review of another’s work needed to rely only on published,

peer-reviewed data. See, e.g., Richardson v. Richardson-Merrell,

Inc., 857 F.2d at 831. Some courts were further conflicted by

situations where an expert based opinions upon epidemiology

studies performed by others, questioning whether such studies

must demonstrate “statistical significance” before testimony based

upon them could be admitted. See, e.g., DeLuca v. Merrell Dow

Pharmaceuticals, Inc., 911 F.2d 941, 955 (3d Cir. 1990); Brock v.

Merrell Dow Pharmaceuticals, Inc., 874 F.2d 307, 312, modified,

884 F.2d 166 (Sth Cir. 1989), cert. denied, 494 U.S. 1046 (1990).

As courts struggled to apply the Frye test, eminent evidence

scholars decried restrictions on expert testimony. Wigmore and

McCormick had complained “for decades about common-law

restrictions on opinion evidence that deprived triers of fact of

“United States v. Scop: The Common Law Approach to an

Expert’s Opinion about a Witness’s Credibility Still Does Not

11

Work,” 55 BROOKLYN L. REV. 559 (1989). It was recognized

that, “as technology advanced and expert testimony became more

important in the resolution of increasingly complex litigation,

unnecessary impediments [specifically, Frye] became

unacceptable.” Weinstein, “Improving Expert Testimony,” 20 U.

’ RICH. L. REV. 473, 477 (1986).

Vv. THE MAIN THRUST OF DAUBERT WAS TO

LIBERALIZE THE TEST FOR EVALUATING THE

ADMISSIBILITY OF EXPERT EVIDENCE.

In this context, the core holding of Daubert was this Court’s

rejection of the defendant’s argument that the “general

acceptance” test articulated in Frye v. United States, 293 F. 1013

(D.C. Cir. 1923), should govern the admissibility analysis.

Instead, this Court concluded that the “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.” Daubert, 509 U.S. at 587.

Other essential points of this Court’s decision in Daubert are as

follows:

* Fed. R. Evid. 402 allows “all relevant evidence” and

“provides the baseline,” while the standard of relevance under

Rule 401 is a “liberal one.” Daubert, 509 U.S. at 587.

* Fed. R. Evid. 104(a) and 702 provide the framework for

determining the admissibility of expert scientific testimony in

federal courts. /d. at 587-93.

* Daubert rejected the defendant’s argument that the “general

acceptance” test articulated in Frye v. United States, 293 F. 1013

(D.C. Cir. 1923), should govern the admissibility analysis, and

agreed with the plaintiff that the standard for admissibility should

not be so “rigid.” Jd. at 587-88.

12

—e — ee

* The Court concluded that the “rigid general acceptance

requirement would be at odds with the liberal thrust of the Federal

Rules and their general approach of relaxing the traditional

»arriers to ‘opinion’ testimony.” Jd. at 588.

* Although the Court offered “general observations” that could

bear upon the “reliability” of scientific evidence, the Court

stressed that “[mJany factors will bear on the inquiry, and we do

not presume to set out a definitive checklist or test,” and

“emphasized” that the inquiry is a “flexible one.” /d. at 593-94.

* The Court held that expert scientific testimony is “relevant”

or “fits” if it relates to an issue at hand, i.e., if it will “assist the

trier of fact to understand the evidence or to determine a fact in

issue.” Jd. at 591.

* Finally, the Court noted that if the “scintilla of evidence

presented” is “insufficient,” a trial judge “remains free to direct

judgment” or “grant summary judgment” under the standards

applicable to those “conventional devices,” but not to resort to

“wholesale exclusion” under Rule 702. /d. at 596.

Daubert of course did not simply stop with a declaration that

the Frye rule was inapplicable in federal court. Recognizing the

very real problem that trial courts were having with certain

epidemiological and toxicological testimony to which Frye was

being applied and which was at issue in the Daubert case, this

Court attempted to provide guidance on how to implement Rule

702 of the Federal Rules of Evidence with respect to testimony

that was based almost entirely on a witness’s interpretation of

studies performed by others.

To do so, this Court set forth factors for evaluating the

testimony of a particular type of scientist (an epidemiologist)

about a particular type of scientific question (whether a

pharmaceutical drug may cause birth defects). In analyzing this

13

testimony from the scientific field of epidemiology, Daubert used

an essentially epistemological approach to define the term

“scientific knowledge” as it is used in Rule 702. This Court

addressed the question of how an epidemiologist would come to

know a proposition as true and discussed objectively reliable

standards governing that very particularized process. The Court

then listed four non-exclusive factors which often are used to

evaluate the methodology underlying the type of novel scientific,

i.e., epidemiological, testimony which was at issue in the specific

case before the Court.’

VI. THE EXPERT TESTIMONY AT ISSUE IN THIS

CASE WOULD HAVE BEEN ADMISSIBLE EVEN

UNDER THE STANDARD THAT PREVAILED

BEFORE DAUBERT.

The expert testimony in Daubert was based upon the experts’

drawing causal inferences from a review and synthesis of the work

of others. It was not, as here, based on personal experience and

particularized training. Yet, given that this Court in Daubert

overruled Frye, expressly urging a more liberal allowance of

expert testimony than had previously prevailed, it is instructive to

look at whether the testimony of Dennis Carlson, the tire expert

in this case, would have been permitted in the Frye era.

Before 1993, in cases such as this one, courts often considered

and rejected efforts to exclude the testimony of tire failure experts

whose testimony was based on practical first-hand experience. In

—s

* Quite a few courts have recognizeu we epistemological underpinning

for the “factors” listed in Daubert. See, e.g., lacobelli Construction Inc. v.

County of Monroe, 32 F.3d 19, 25 (2d Cir. 1994) (case does “not present the

kind of ‘junk science’ problem Daubert meant to address”); Smith v. Ford

Motor Co., 882 F. Supp. 770, 774 (N.D. Ind. 1995) (“Daubert’s focus appears

to be on ‘novel scientific evidence’ and the ‘ junk science’ problem”); Gentry

v. Mangum, 466 S.E.2d 171, 185 (W. Va. 1995) (Daubert dealt with “junk

science”).

14

see

Smith v. Uniroyal, Inc., 420 F.2d 438, 442 (7th Cir. 1970), for

example, the Seventh Circuit did not require that an expert base

his opinion about the cause of a tire failure on elaborate scientific

testing, peer review, or even manufacturing experience. Rather,

the testimony was permitted based on the expert’s personal

experience handling and selling tires of national manufacturers at

a service station for 22 years. Even though the expert had no

formal training in the causes of tire failure and no experience in

the manufacture of tires, his job required him to evaluate 50-75

tire failures per year in order to make price adjustments. Based on

this experience, the expert testified that he could look at a tire for

less than a minute and tell the difference between a tire that failed

due to a road hazard and one that failed because of a construction

defect. He had learned to do that as a tire salesman in order to

determine whether the user would get an adjustment from the

manufacturer for a failed tire. The issue in that case, like this

case, was simple: was the failure due to a defect that was the

responsibility of the user or of the manufacturer? In permitting

the expert to testify, it did not matter to the court in Smith that the

expert did not know whether the defect in the tire about which he

testified was due to materials or workmanship. /d. at 442.

Following the same type of pre-Daubert inquiry done in Smith,

there would have been no question regarding the admissibility of

~arlson’s testimony in this case. In comparison to the tire expert

there: 1) Carlson spent 10 years in tire research at a tire

manufacturer, Michelin; 2) he had performed thousands of

control failure simulation tests on Michelin and other tires, some

of which were designed to isolate causes for tire separation; 3) he

had teaching experience at Michelin; and 4) he had coursework in

tire failure forensics. Carlson also spent an hour physically

examining the tire in question, as well as the other three tires on

the vehicle, read the accident report and maintenance records for

the vehicle, and reviewed photographs of the van and the accident

scene. Carlson based his opinion upon his experience and training

and his physical examination of the tire in question. He drew

15

inferences from what he saw in that tire compared to results in

performing many other such examinations. As Smith reveals,

under a pre-Daubert analysis, Carlson would have been permitted

to testify.

This does not mean, of course, that, if Carlson had been

permitted to testify, the plaintiffs would have won at trial — only

that his testimony would have been considered. The defendants

would still have had every opportunity to test Carlson’s testimony

in the crucible of cross examination, and to argue to the jury that

Carlson should not be believed.

Instead of addressing their arguments to the jury, however,

Petitioners essentially ask this Court to evaluate the weight to be

accorded to Carlson’s opinion. For example, Petitioners deride

Carlson for only personally viewing the tire in question for an

hour before his deposition. While there seems to be little dispute

that he could fully view the tire in an hour (as opposed to the

minute in Smith, supra), Petitioners complain that he saw the tire

too close in time to when he rendered his opinions. This quibble

goes to the weight of the testimony at best, and not to its

admissibility. The question of “when” and “how long” are

matters for Petitioners to use in impeaching Carlson’s testimony

on cross-examination. That Carlson was asserted to have missed

some physical evidence in his investigation, which was

represented to be important to Petitioners’ experts when they

personally examined the tire, also may be addressed on cross-

examination.

Petitioners’ attack on Carlson might have won them a victory

at trial prior to 1993, but it would not have prompted the exclusion

ofhis testimony. Before Daubert, courts had no difficulty holding

that non-academic and non-scientific witnesses could testify in

product failure cases, even though the experts may never have

designed or tested the exact type of product in question or

supported the opinion by any type of literature. For example, the

16

Eighth Circuit held that an owner and operator of a body and

fender shop who had been in the auto repair business for 18 years

and who had frequently examined wrecked cars, including their

suspension systems, possessed sufficient knowledge and practical

experience to testify whether a particular ball joint of the car’s

suspension system was defective. Moran v. Ford Motor Co., 476

F.2d 289, 291 (8th Cir. 1973). While the expert’s testimony might

not have been based upon any testing or peer review of the

relevant literature, the court held that he had sufficient experience

to judge a defective ball joint. He also clearly had specialized

knowledge that would assist the jury. See id.

Moreover, in most product design cases before Daubert, expert

testimony was based on a blend of experience and academic

training. Direct experience designing and testing the actual

product or similar products was not required, and would

inherently have limited the number of possible experts to a select

few individuals, particularly in those states requiring a reasonable

alternative design. For instance, in Stempel v. Chrysler Corp., 495

F.2d 1247 (Sth Cir. 1974), a registered professional engineer who

had investigated approximately 1,800 accidents involving vehicles

testified on the design of a padded dashboard, even though he had

no — experience in designing automobile dashboards

Even in seemingly highly “technical” air crash cases, pre-

Daubert courts did not require experts to be aeronautical

engineers. Thus, a witness who had a doctorate degree in

metallurgical engineering and experience investigating helicopter

accidents could testify that there was a faulty design in a

helicopter rotor. Rocky Mountain Helicopters, Inc. v. Bell

Helicopters Textron, 805 F.2d 907, 919 (10th Cir. 1986).

Similarly, an expert who had been assistant chief flight engineer

for an airline for 11 years and had investigated about 30 cases of

airplane engine overspeed, while reviewing hundreds of other

cases in air force reports, was allowed to testify as an expert

17

witness in an airplane crash case. Noel v. United Aircraft Corp.,

342 F.2d 232, 235-36 (3d Cir. 1964). Each of these experts relied

on their personal experience and observations, backed by research

and academic training to testify. There was no error rate or peer

review on which to base their testimony, and it would have been

cost-prohibitive if a court actually required physical testing of

their opinions before they were permitted to testify.

It is thus clear that pre-Daubert courts routinely permitted

testimony from a wide variety of witnesses who qualified as

experts because of their specialized knowledge, gained through

experience.‘

VIL. PETITIONERS’ APPROACH WOULD BE MORE

RESTRICTIVE THAN THE STANDARD THAT

PREVAILED BEFORE DAUBERT, AND IS THUS

CONTRARY TO THE LIBERALIZING THRUST OF

DAUBERT.

As shown above, the expert testimony at issue in this case

would certainly have been deemed admissible under the standards

in place before Daubert, and Daubert itself sought to liberalize

those standards. However, the approach advocated by Petitioners,

which was employed by the district court below, would turn

Daubert on its head. The district court mechanistically applied

Daubert's four suggested factors for evaluating epidemiological

testimony and predictably found them entirely unhelpful in

assessing the reliability of Carlson’s tire failure analysis.

Notwithstanding that, the court never examined the nature of the

expertise in question to determine what factors should be

* Professor Imwinkelreid has listed numerous examples, including

auctioneers, bankers, railroad brakemen, business persons, carpenters, farmers,

security guards and trapshooters. See Imwinkelreid, “The Next Step After

Daubert: Developing a Similarly Epistemological Approach to Ensuring the

Reliability of Non-Scientific Expert Testimony,” 15 CARDOZO L. REV. 2271,

2278 (1994).

18

mm

considered as appropriate indicia of reliability. Instead, it applied

the Daubert factors in a wooden manner, holding that this Court

dictated that it “must” apply those factors. 923 F. Supp. at 1520.

Unfortunately, this misinterpretation has been shared by a

number of other courts, leading to quite uneven and unpredictable

results. For example, in Hanks v. Korea Iron & Steel Co., 993 F.

Supp. 1204 (S.D. Ill. 1998), an expert’s testimony that failed wire

rope was “more probably than not” made by a defendant was

excluded despite the fact that the expert was a registered

professional engineer with over 30 years of experience in the wire

rope industry. Although he performed both physical and chemical

analyses of the failed wire and compared it to defendant’s wire

and concluded that the two were highly similar, the court excluded

his testimony because the expert’s physical and chemical

analyses: 1) were not subject to peer review; 2) had not been

evaluated in light of the potential rate of error; and 3) were not

shown to be generally accepted. Jd. at 1208-10.

Similarly, in Watkins v. Telsmith, Inc., 121 F.3d 984 (Sth

1997), the court believed that Daubert had changed the

interpretation of Rule 702. Plaintiff in that case relied on a pre-

Daubert case, Dixon v. International Harvester, 754 F.2d 573 (Sth

Cir. 1985), where a similar expert with similar credentials had

been permitted to testify. The court rejected Dixon as precedent,

because the prior court’s analyses “reflect a pre-Daubert

sensibility.” Jd. at 992.

Along the same lines, in Bogosian v. Mercedes-Benz of North

America, Inc., 104 F.3d 472 (ist Cir. 1997), the court upheld the

exclusion_of witness testimony about defects in an automobile

transmission design. The witness had extensive experience as a

mechanic, had investigated many product cases, had testified as

an expert 126 times, and had personally performed tests on the

subject vehicle to determine whether the alleged defect in the

vehicle existed. His tests showed that the alleged defect did exist

19

in the subject car and he had a corrective solution. The court

looked at his “methodology” and rejected it because there was no

evidence this was a “known technique.” Jd. at 478. The factors

upon which the court made its decision were factors that went to

the weight rather than the admissibility of the testimony.

Even more troubling has been the use of Daubert to require

product defect experts to actually design and test any suggested

alternative designs before being allowed to testify. For example,

in Cummins v. Lyle Industries, 93 F.3d 362 (7th Cir. 1996),

involving an allegedly defective trim press, an expert was not

allowed to testify about his alternative trim-press designs. The

court held that the expert lacked a reliable basis for his testimony

because he had never tested his alternative designs. The court

found that, because the “opinions offered . . . in this case clearly

lend themselves to testing and substantiation by the scientific

method, . . . the absence of such testing indicated that the witness’

proffered opinions could not fairly be characterized as scientific

knowledge.” Jd. at 369.

The kind of testing the court required in Cummins is often

impossible to obtain or prohibitively expensive. Would such

testing be required if the defect was in a nuclear submarine?

Dismissal of a case due to the failure to conduct actual design and

feasibility testing of an alternative design would deny access to

justice to vast numbers of personal-injury and breach-of-contract

plaintiffs. Yet, this is precisely what one court has concluded that

Daubert meant to require. In Stanczyk v. Black & Decker, Inc.

836 F. Supp. 565 (N.D. Ill. 1993), the district court excluded

testimony from a mechanical engineer who had worked for the

defendant because he had not actually engineered, built, and

tested his alternative design. When the plaintiff complained that

this added requirement for his expert would put the case beyond

his financial ability, the court acknowledged that its interpretation

of Daubert would result in substantial additional expense to the

plaintiff and then dismissed the case anyway. The court found

20

that “it is the very nature of Rule 702 and Daubert that requires

those expenditures. Proof of any kind is often expensive to

gather. Scientific reliability and validity in our times is seldom

cheap....” /d. at 568.

On the other hand, it is fortunate that these examples have been

aberrant and the majority of courts considering such post-Daubert

cases have concluded correctly that the so-called Daubert factors

are required only where the testimony would have been previously

evaluated for general acceptance pursuant to Frye. Thus, courts

in at least the Second, Sixth, Seventh, Ninth, Tenth, and D.C.

Circuits have concluded that the intense scrutiny using the factors

set forth in Daubert is justified only where the case involves

science that is novel or controversial. See, e.g., lacobelli

Construction, Inc. v. County of Monroe, 32 F.3d 19 (2d Cir. 1994)

(construction expert affidavits were not the kind of “junk science”

that factors in Daubert were meant to address); U.S. v. Jones, 107

F.3d 1147 (6th Cir.), cert. denied, 117 S. Ct. 2527 (1997)

(hand-writing expert); United States v. Sinclair, 74 F.3d 753, 757

(7th Cir. 1996) (“Daubert does not create a special analysis for

answering questions about the admissibility of all expert

testimony.”); U.S. v. Cordoba, 104 F.3d 225 (9th Cir. 1997);

Masayesva v. Hale, 118 F.3d 1371, 1379 (9th Cir. 1997), cert.

denied, 118 S. Ct. 1098 (1998) (agricultural economist was

qualified to testify about value of grazing on Hopi land and

Daubert standards were held not applicable to “relatively

straightforward application of range economics, rather than a

novel scientific theory”); Compton v. Subaru of America, 82 F.3d

1513 (10th Cir.), cert. denied, 117 S. Ct. 611 (1996); Ambrosini

v. Labarraque, 101 F.3d 129 (D.C. Cir. 1996), cert. dismissed,

117 S. Ct. 1572 (1997).

Even courts which felt that they were obligated to consider the

Daubert factors have recognized the difficulty in applying them.

See Kannankeril v. Terminix Int'l Inc., 128 F.3d 802, 809 (3d Cir.

1997) (lack of peer review or publication was not dispositive

21

where expert’s opinion was supported by “widely accepted

scientific knowledge”); Tyus v. Urban Search Management, 102

F.3d 256 (7th Cir. 1996), cert. denied, 117 S. Ct. 2409 (1997)

(Daubert factors not applicable to testimony from a sociologist).

These courts have recognized that, where specialized

knowledge derives from personal observations and experience, the

Daubert factors are inapplicable and often are not capable of

providing a reasonable means for assessing the admissibility of

testimony. In most fields of “knowledge,” there are no peer

reviews per se and opinions would be difficult, if not impossible,

to “test.” Even the District Court below, while concluding it was

obligated to apply the Daubert factors, recognized that the factors

could not be applied to every expert testifying based on

“scientific” knowledge.

As Professor Imwinkelreid has pointed out:

Neither the essential test enunciated in Daubert, nor the

factors listed by the Court are applicable to nonscientific

opinion. The Daubert test is grounded in the scientific

process and directs the judge to evaluate the quality of the

testing supporting the scientific conclusion. . . . Since

nonscientific opinions do not rest on replicable experiments,

such opinions cannot be validated by the classic methods of

Newtonian science. . . . The Upshot is that for the

admissibility of scientific evidence, that test is useless as a

criterion for the admissibility of other types of expert

testimony.

Imwinkelreid, “The Next Step After Daubert: Developing a

Similarly Epistemological Approach to Ensuring the Reliability

of Nonscientific Expert Testimony,” 15 CARDOZO L. REV. 2271,

2283-85 (1994).°

* In fact, even in the majority of scientific endeavors, the Daubert

22

Vill. THE APPROACH REQUESTED BY PETITIONERS

WOULD BE A DRAMATIC AND UNWISE

DEPARTURE FROM LONG-ESTABLISHED

FEDERAL EVIDENCE LAW.

If the Court were to adopt the rule urged by the Petitioners, new

requirements would be added to Rule 702 and much traditional

expert testimony would be subject to difficult or impossible

standards. The “liberal thrust” of the Federal Rules, and their

“general approach of relaxing the traditional barriers to opinion

testimony,” would be turned on its head. Considering that many

state courts have adopted Rule 702 and follow this Court’s lead,

such an interpretation of Daubert and Rule 702 would eventually

alter the day-to-day practice of law in nearly every court in the

country.

In the vast majority of cases that are heard on a day-in, day-out

basis, testimony of experts is usually based upon an application of

the expert's experience, training and/or education.* The skill or

factors of “error rate” and “general acceptance” may not be significant. See

Marino & Marino, “The Scientific Basis of Causality in Toxic Tort Cases,” 21

DAYTON L. REV. 1, 31 0.95 (1995).

* Among hundreds of examples are fire and explosion cases. See, e.g.,

U. S. v. Marler, 614 F.2d 47 (Sth Cir. 1980) (deputy state marshal testified

based on knowledge derived from investigating fires for 11 years.); Welders

Supply, Inc. v. American Emp. Ins. Co., 342 F.2d 972, on rehearing, 358 F.2d

593 (6th Cir. 1965) (witness with lifetime experience in gas industry could

express opinion about source of explosion). Other examples include the owner

of a soil and feed testing service with practical experience in feed-related health

issues who can testify about physical condition of the herd. See Circle / Dairy,

Inc. v. A.O. Smith Harvestore Products, Inc., 790 F.2d 694 (8th Cir. 1986).

Plaintiff-farmer was allowed to give expert testimony about feeding and care of

chickens, egg production, and estimation of life of chicken coop because he had

raised chickens and handled coops most of his life. Viases v. Montgomery Ward

& Co., 377 F.2d 846 (3d Cir. 1967). See also Hanna v. Fletcher, 261 F.2d 75,

104 (D.C. Cir. 1958), cert. denied, 359 U.S. 912 (1959) (ironworker); Walton

v. Sherwin-Williams Co., 191 F.2d 277 (8th Cir. 1951) (crop pilot expert).

23

specialized knowledge required of the expert has generally

depended on the task and the stakes of the litigation at hand. For

instance, if expert testimony is needed regarding the approximate

speed of a vehicle or the cause of an accident, testimony will

normally be elicited not from an accident reconstructionist but

from a policeman who might be permitted to draw opinion

inferences basex upon his experience and observations. £.¢.,

Kelsay v. Consolidated Rail Corp., 749 F.2d 437 (7th Cir. 1984);

Bonner v. Polacari, 350 F.2d 493 (10th Cir. 1965). In real estate

evaluation cases, testimony might be provided by farmers who

answer from personal knowledge, Ruud v. U. S., 256 F.2d 460,

(9th Cir. 1958), cert. denied, 358 U.S. 817 (1960), or from a rent

inspector with prior experience as a real estate broker. Mason v.

Woods, 172 F.2d 857 (Em. App. 1949). See also U.S. v. 1040.30

Acres of Land, 144 F. Supp. 199 (W.D. La. 1956) (buyer and

seller of residential subdivision properties).

It is highly questionable whether any of these experts would be

permitted to testify if Rule 702 were interpreted to require strict

application of the four Daubert factors. Many cases would be

dismissed or could never be litigated because of the cost or

unavailability of a scientific expert on the most routine or

mundane topics. Courts would be bogged down in time-

consuming and costly Daubert hearings on the admissibility of

virtually every expert, squandering the resources of the courts and

litigants. Indeed, even at present, in many jurisdictions all that is

necessary to initiate an extended, expensive, and time-consuming

pre-trial process is a mere unsupported notice of a Daubert

challenge by the opponent of the proffered expert testimony.’ In

” For instance, as is noted in Jn re TME Litig. Cases Consol. II, 922

F. Supp. 997, 1005 (M.D. Pa. 1996), the district court stated that it had

accommodated “the parties for two rounds of in limine hearings which required

clearing the court’s calendar for most of November 1995, part of February 1996,

and part of March 1996.” See also Roisman, “The Courts, Daubert, &

Environmental Torts: Gatekeepers or Auditors?,” 14 PACE ENVT’L L. REV. 558

(1997).

24

these courts, the expert testimony is then often rendered

presumptively inadmissible, because it is the proponent of the

testimony who is then required to prove that the testimony will

Clearly, nothing in Daubert indicates, or even hints, that this

Court intended such a major change in Rule 702. As the Fifth

Circuit has explained, Daubert “did not otherwise work a sea

change over federal evidence law.” U.S. v. 14.38 Acres of Land,

80 F.3d 1074, (Sth Cir. 1996) (citing United States v. Sinclair, 74

F.3d 753, 757 (7th Cir. 1996) (“Daubert does not create a special

analysis for answering questions about the admissibility of all

expert testimony.”)). Daubert 's holding only articulates what the

Federal Rules of Evidence have always held was the trial court’s

traditional “gate keeping” task of determining “whether proffered

evidence is sufficiently reliable and relevant, and thus

presumptively admissible unless excludable on some other

ground.” 80 F.3d at 1078.

In the vast majority of cases using experts, trial courts are

perfectly capable of evaluating the qualifications and admissibility

of expert opinion the way they have for decades: by direct

foundation testimony from the expert describing his or her

background, education, and experience in the field, the work that

was done in gathering and analyzing the facts at issue, and the

methods used in reaching the opinions. Petitioners’ restrictive

interpretation of Rule 702 would mean that personal observations

and direct experience, which were the sine qua non of the

common law, would now count for close to nothing. Even if an

expert’s methods were generally accepted under Frye standards,

under Petitioners’ formulation the testimony could still be

excluded for not meeting the other “required” factors. The results

of such a formulaic and mechanical approach will inevitably be

uneven and woefully unfair.

25

Yet, rejecting Petitioners’ proposed approach does not mean

that courts will be abdicating their “gatekeeping” role. It only

means that balance will be maintained between the role of the

gatekeeper and the role of the fact finder. It means that the work

of trial courts need not be excessively burdened by requiring, in

every case, a Daubert analysis of factors and scrutiny of

methodology. It means that, consistent with the Federal Rules, the

traditional barriers to the admissibility of expert testimony would

be lowered or, at best, kept the same — not, as Petitioners and their

amici urge, greatly heightened. Any other interpretation of

Daubert and Rule 702 would severely limit the ability of the

aggrieved whether in contract, tort or otherwise to gain fair,

reasonable, and economical access to our legal system.

CONCLUSION

For the foregoing reasons, the judgment of the United States

Court of Appeals for the Eleventh Circuit should be affirmed.

26

October 19, 1998

Gerson Smoger, Esq.

(Counsel of Record)

Smoger & Associates, P.C.

13250 Branch View Lane

Dallas, TX 75234

(972) 243-5297

William A. Rossbach, Esq.

Rossbach Brennan, P.C.

401 North Washington Street

Missoula, MT 59802

(406) 543-5156

Arthur H. Bryant, Esq.

Sarah Posner, Esq.

Trial Lawyers for Public Justice, P.C.

1717 Massachusetts Ave., N.W. _

Suite 800

Washington, D.C. 20036

(202) 797-8600

Brian Wolfman, Esq.

Public Citizen Litigation G

1600 20" Street, N.W.

Washington, D.C. 20009

(202) 588-1000

Counsel for Amici Curiae

Trial Lawyers for Public Justice, P.C.,

Public Citizen, Inc., and the Center for

Auto Safety

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