14.37 - A. Earlier “Reliability” Standards

• Jurisdiction: New York

A. Earlier “Reliability” Standards

The foregoing survey shows that gatekeeping in the federal arena is decidedly robust. The amendments to the Federal Rules of Evidence and the Daubert/Joiner/Kumho Tire precedents do much to inform the federal bench and bar about the procedure, substance and objectives of Daubert screening.

But what about New York state courts? Which admissibility standards guide state judges regarding the trustworthiness of expert testimony? New York does not have a written code of evidence. The state’s high court has not ruled the Frye test out of existence as Daubert formally did on the federal side. How do state judges achieve what their federal counterparts strive for—that is, reliable expert testimony? Can Daubert criteria play a role in state courts as well? If the answer is yes, what ought to be the appropriate interface between Frye and Daubert?

These and other questions deserve attention because products litigation in the state courts is even more voluminous. It seems unthinkable that vigorous gatekeeping will routinely go forward in federal courts but that in state courts hired-gun experts will have license to roam with unreliable testimony.

A close look reveals the state court picture is far from inactive. A number of this writer’s columns in the New York Law Journal have reported some effective screening efforts in state courts.²⁷²⁴ Nevertheless, it is evident that, although Daubert and its progeny have reinvigorated gatekeeping in federal courts and have specified a number of screening criteria, New York’s monitoring by comparison seems more gradual but has picked up steam.

Arguably, some misunderstanding may exist regarding the appropriate role of Frye. The lawyer’s awareness of the elements of state court screening of expert testimony is imperative, especially as Daubert’s vigor continues to push, however gradually, the state gatekeeping envelope.²⁷²⁵

Clearly, gatekeeping has proceeded in New York state courts for decades. New York courts have deemed it “settled and unquestioned law” that the opinion of a qualified expert “must be based on facts in the record or personally known to the witness.”²⁷²⁶ Expert opinions not fulfilling these conditions are “worthless,”²⁷²⁷ unless they constitute one of two limited exceptions to the rule: (1) the out-of-court material is “of a kind accepted in the profession as reliable in forming a professional opinion”; or (2) such material “comes from a witness subject to full cross-examination on the trial.”²⁷²⁸

Both the foregoing general rule and the limited exceptions obviously presuppose that the witness truly knows what he or she is talking about and is trustworthy enough to set forth a “reliable” opinion. In fact, the first exception quoted above specifically refers to out-of-court materials that are acceptably reliable in the particular profession. Experts are expected to state opinions with a reasonable degree of certainty.²⁷²⁹ An expert opinion that is “contingent, speculative or merely possible”—in essence, a “guess or surmise”—lacks reliability and probative force and, hence, is not admissible.²⁷³⁰ Thus, the expert must exhibit a sufficient degree of confidence in his or her conclusions to “satisfy accepted standards of reliability.”²⁷³¹

Obviously, in effectuating these objectives, New York courts frequently have to evaluate the trustworthiness of the data or assumptions that underlie the expert’s opinion. If the underlying predicate is speculative or shaky, the opinion cannot be much better. For example, an accident reconstructionist’s testimony as to how an accident occurred that is “speculative and tailored to meet a desired result” is unreliable and inadmissible.²⁷³² Or, for example, where a medical expert offered a prognosis based on statistics, the court held the testimony inadmissible for lack of adequate foundation because “the basis for the statistical evidence . . . was not revealed . . . [and] there was no indication that the testimony was reliable, and not mere speculation.”²⁷³³

New York courts also have rejected experts who hold out purported expertise in matters beyond their field of competence, as well as those who purport to express expert opinions without adequate factual support. In Garcia v. City of New York,²⁷³⁴ for example, plaintiff’s medical expert was held incompetent to testify concerning the manner in which bullets were shot, the court recognizing that the witness “was not a ballistics expert and therefore much of his testimony was beyond the sphere of his expertise.”²⁷³⁵

In Hong v. County of Nassau,²⁷³⁶ a mechanical engineer with extensive experience in safety engineering of vehicles was excluded from testifying about the design or development of golf courses or recreational areas.²⁷³⁷ Again, it is vital to remember that in monitoring the content of expert testimony, expert opinions based on facts outside the record or not personally known to the witness generally are considered worthless.²⁷³⁸

When the expert relies upon hearsay materials, most often he or she attempts to use the professional reliability exception. But in order to qualify under this standard, “there must be evidence establishing the reliability of the out-of-court material.”²⁷³⁹ The reliability requirement “reflects a concern that unless the pre-condition of reliability . . . is met, the out-of-court information may be given undue weight by the jury.”²⁷⁴⁰

The hearsay materials (or third-person opinions) ought not to be the “principal basis” for the expert’s opinion but, rather, “merely a link in the chain of data on which that witness relied.”²⁷⁴¹ Experts cannot simply adopt...