The Daubert Standard and Employment Law

• Publication year: 1999
• Pages: 65

28 Colo.Law. 65 Colorado Lawyer 1999.

1999, August, Pg. 65. The Daubert Standard and Employment Law

---

65

Vol. 28, No. 7, Pg. 65

The Colorado Lawyer
August 1999
Vol. 28, No. 8 [Page 65]

Specialty Law Columns
Labor and Employment Review
The Daubert Standard and Employment Law
by John R. Webb

Over the last decade, those in the litigation field have felt the ripple effects of several landmark decisions attempting to refine the admissibility standards for expert testimony In 1993, in Daubert v. Merrell Dow Pharmaceuticals, Inc.,1 the U.S. Supreme Court rejected the "general acceptance" test for scientific evidence admissibility thus reversing Frye v. United States.2 The Court formulated a new, more flexible test for evaluating scientific evidence under Federal Rules of Evidence ("F.R.E.") 702 When faced with a proffer of scientific evidence, the trial court should consider, inter alia, whether the theory or technique: (1) has been or can be tested; (2) has been subject to peer review or publication; (3) has a known or potential error rate; and (4) has been generally accepted in the scientific community.3 The trial judge as "gatekeeper" must make a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology can be applied to the facts in issue."4

This article discusses Daubert in the context of employment law, including recent cases that have clarified application of the Daubert analysis and how the analysis applies to various types of scientific evidence.

Background: The "Gatekeeping" Issue

After Daubert, a debate quickly arose over its application outside purely scientific evidence, invoking a split among Circuit Courts. In Kumho Tire Co. v. Carmichael,5 decided earlier this year, the U.S. Supreme Court laid the division to rest: the Daubert "gatekeeping" obligation applies to all expert testimony. Thus, all expert evidence must now be both relevant and reliable under the Daubert standards.

Although relevance remains a threshold inquiry in all evidence issues, including a Daubert expert testimony analysis, reliability has sparked some debate. Language in Daubert suggests that the proper test for reliability is weight rather than admissibility. In addressing concerns over a "free-for-all" of absurd and irrational scientific evidence if the Frye "general acceptance" test were abandoned, the Supreme Court stated that "vigorous cross-examination, presentation of contrary evidence, and careful instruction on burden of proof are the traditional and appropriate means of attacking shaky, but admissible evidence."6 Notwithstanding this strong suggestion, debate ensued. For example, while some courts have excluded statistical evidence for untested or flawed methodology under Daubert, several cases suggest that disputes over methodology and reasoning go to weight rather than admissibility.7

In General Electric Co. v. Joiner,8 the Supreme Court once again suggested that the trial court's role under Daubert is a narrow one:

[t]he intent of Daubert is to loosen the strictures of Frye and make it easier to present conflicting views of experts. This gatekeeping role is simply to guard the jury from considering as proof pure speculation presented in the guise of legitimate scientific-based expert opinion. It is not intended to turn judges into jurors or surrogate scientists.9

This language appears to favor a more open standard of admissibility for expert testimony, so the trial court does not have to choose between two legitimate but conflicting views. Despite this language, the trend in employment discrimination cases involving experts suggests exclusion if the reasoning and methodology do not directly and clearly relate to the facts in issue.

The rest of this article briefly reviews the implications of Daubert and Kumho Tire as specifically applied to statistical, psychological, and human resources experts in employment cases across jurisdictions.

Statistical Evidence

In pattern and practice discrimination actions, statistical evidence often plays a pivotal role in establishing the prima facie case.10 Labor market and other demographic statistics frequently arise in trials of disparate impact discrimination claims. To be reliable, statistical evidence must account for distinguishing characteristics among persons being compared.11 To be relevant, the reasoning and methodology underlying the statistical analysis must apply to the facts in issue.12

The Daubert relevancy and reliability standards will exclude statistical evidence if an expert fails either to exercise a professional degree of care or to establish a valid scientific connection to the question at issue. Prior to Kumho Tire, the Seventh Circuit excluded an expert's statistical analysis of employee data in an age discrimination case13 because the expert's disregard of factors affecting personnel retention decisions, including experience with new technology and defunct positions, indicated "a failure to exercise the degree of care a statistician would use in work outside of the litigation context."14

Similarly, the Second Circuit15 excluded a labor market report because the expert assumed that age discrimination caused anomalies in the data, without having made any effort to account for other possible causes. This fatal omission meant that conclusions in the report "did not make it more or less likely that the employer engaged in age discrimination," and, thus, the report did not meet the relevancy test under Daubert.16

A third age discrimination plaintiff encountered a Daubert problem when his expert pooled data from the whole company rather than from the plaintiff's work unit. The court concluded that the resulting statistical anomalies did not indicate disparate treatment in the plaintiff's work unit, explaining that the plaintiff had not asserted a company-wide policy of discriminatory...