On the Admissibility of Expert Testimony in Kansas
| Jurisdiction | Kansas,United States |
| Citation | Vol. 66 No. 11 Pg. 24 |
| Pages | 24 |
| Publication year | 1997 |
66 J. Kan. Bar Assn. November, 24 (1997). ON THE ADMISSIBILITY OF EXPERT TESTIMONY IN KANSAS
November, 1997
Steve Leben [FN1]
Copyright (c) 1997 of the Kansas Bar Association; Mark D. Hinderks, Steve Leben
WESTLAW LAWPRAC INDEX
EXP -- Use of Experts in Practice & Proceedings
The admission of expert testimony is often necessary to make or support a submissible case, and can also be crucial to a successful defense. Amid skepticism about the role of paid experts, a frequently perceived willingness to freely opine on either side of a case, and their effects on juries, vigorous debate has occurred concerning the proper role of the courts in policing the admissibility of proposed expert testimony. This debate has centered around Daubert v. Merrell Dow Pharmaceuticals, Inc. [FN2] This article will briefly review the status of Daubert and its progeny applicable to federal practice in Kansas. It will also address the extent to which authority exists in Kansas state practice for district courts to exercise a gatekeeper function concerning proposed expert testimony beyond the traditional determination of whether the expert is qualified to be an expert.
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In addition, this article will focus on an important distinction between the federal and state rules in Kansas concerning whether an expert may rely upon hearsay information as the basis for his or her opinion. Finally, the article will provide reference to some recent cases and the applicable statutory authorities concerning the requirement to timely and adequately designated experts and the substance of their anticipated testimony.
I. The Current Status of Daubert and its Progeny Applicable to Federal Court Practice in Kansas
In Daubert, the United States Supreme Court addressed foundation requirements for the admission of expert testimony. It held that the widely accepted Frye v. United States [FN3] "general acceptance" test, [FN4] although followed by a majority of courts, actually had been superseded by adoption of the Federal Rules of Evidence years earlier. [FN5] The Court focused its analysis upon Rule 702, which it held specifically governs expert testimony without mention of, and to the exclusion of, Frye's "general acceptance" test. [FN6]
Rule 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. The Daubert Court held that Rule 702's language creates a requirement that the trial judge screen expert testimony for reliability, relevance and "fit." [FN7] It stated that because the subject of an expert's testimony pertains to "scientific ... knowledge," [FN8] it must be grounded in "methods and procedures of science" and supported by "appropriate validation - i.e., 'good grounds,' based upon what is known." [FN9] This gives rise to a standard of evidentiary reliability. [FN10] In addition, because the evidence must "assist the trier of fact," it must be specifically relevant to an issue in the case. [FN11] For the same reason, it must "fit" the case in the sense of having a "valid scientific connection" to the particular facts of the case so as to be helpful. [FN12] Rule 104(a), which provides that "preliminary questions concerning the qualifications of a person to be a witness ... or the admissibility of evidence shall be determined by the court," then places the trial court in position as the gatekeeper for purposes of ensuring that expert testimony is reliable, relevant and fits the particular case. [FN13]
In Compton v. Subaru of America, Inc., [FN14] the Tenth Circuit held that the factors set forth in Daubert for evaluation of expert testimony (publication, peer review, testability, rate of error, etc.) apply "only when a proffered expert relies on some principle or methodology" and do not apply when expert testimony is "based solely upon experience and training." [FN15] When the expert's testimony is based solely upon experience and training," Rule 702 merely requires the trial court to make a preliminary finding that proffered expert testimony is both relevant and reliable," while taking into account that the Rule 702 inquiry is a flexible one. [FN16]
In Compton, the court affirmed the trial court's admission of testimony by an aerospace and mechanical engineer that design and roof support structures in an accident vehicle were defective. [FN17] The expert opined concerning forces the roof should have been designed to support, which the trial court remarked "seems more applicable to a Sherman tank than to any vehicle which the ordinary consumer would drive." [FN18] Nonetheless, although expressing doubts about the expert's credibility, the district court ultimately determined that the testimony was admissible, based upon the expert's qualifications and a conclusion that the testimony would assist the jury. [FN19] Applying an abuse of discretion test on appeal, the Tenth Circuit held that the district court's reluctant conclusion that the testimony was "facially helpful and relevant," and that the expert possessed the basic necessary qualifications, controlled. Because the expert testified based upon general experience and training, not any particular methodology or technique, the Daubert factors did not apply. [FN20]
Within the Tenth Circuit, the Daubert and Compton holdings establish an interesting choice for would-be proponents of expert testimony. Many types of expert testimony could be founded upon specific analysis, methodologies or calculations such that the Daubert factors would be applicable; or, alternatively,
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relying upon Compton, it would appear that such opinions may be expressed based simply upon recitation of the key words "experience and training" as foundation by an otherwise appropriately qualified expert, with little or no logical underpinning. [FN21] The types of opinions expressed in Compton itself are a good example--certainly the engineering design of the roof structure of an automobile so as to avoid excessive crushing could have been the subject of detailed "scientific" analysis. [FN22] Expression of a detailed logical basis may make an expert's opinion more persuasive to the jury, but will subject it to Daubert scrutiny. Expression of an opinion based solely upon experience and training may avoid Daubert scrutiny, but ultimately may be less persuasive, although in Compton the proponent of the expert testimony at issue obtained a substantial jury verdict.
A Daubert gatekeeper analysis has been frequently applied in the federal courts in Kansas, both before and after Compton. In Sullivan v. United States Gypsum Co., [FN23] the court excluded testimony of an economist on hedonic damages, finding that studies relied upon by the expert as to the value society places upon the contributions of a statistically average person were not relevant to the loss of enjoyment of life by the particular people involved, and that the opinions would therefore not assist the jury. In re Aluminum Phosphide Antitrust Litigation, [FN24] the court excluded the testimony of an economist in an antitrust case, finding that the expert, purporting to use a scientifically accepted model for his analysis, used unjustified assumptions and failed to account for key variables, rendering his testimony inconsistent with scientific methodology and unreliable. In Winning Ways, Inc. v. Holloway Sportswear, Inc., [FN25] the court excluded testimony of a survey expert in an intellectual properties case, based upon methodological defects in the mechanics of the survey process undertaken.
Post-Compton cases have continued to vigorously apply Daubert to "scientific" testimony, while applying a standard more akin to traditional Rule 702 analysis to other expert testimony. In Gust v. Jones, [FN26] the court held that expert testimony on the speed of vehicles involved in an accident would be excluded because it would not assist the trier of fact, since other evidence, including an eyewitness, was available. The court noted that Daubert would only be applicable if the testimony was based on a particular methodology or technique; therefore, in the absence of such a foundation for the testimony, Daubert analysis in the case was premature. [FN27]
In United Phosphorus, Ltd. v. Midland Fumigant, Inc., [FN28] the court refused to exclude the testimony of an expert concerning potential prices and sales that could have been obtained for a product, because those opinions were based upon the expert's fifteen years experience running a business in the industry involved, and not upon any particular methodology of calculation. In a subsequent opinion in the same case, the court applied the Daubert factors to economists who proposed to testify about the value of a trademark, excluding the testimony of one of the economists whose application of a method of economic analysis that he had derived for purposes of the litigation was found to be flawed and inconsistent, who did not have knowledge of necessary facts, and who failed to address some of the accepted valuation methodologies. [FN29] In addition, the court excluded the testimony of a defense expert on FIFRA misbranding under a traditional Rule 702 analysis, finding that the proposed expert lacked sufficient knowledge or expertise in a relevant area. [FN30]
In Estate of Mitchell v. Gencorp., Inc., [FN31] the court applied the Daubert factors to medical causation experts offered to testify as to the causation of chronic myelogenous leukemia (CML) from exposure to certain occupational chemicals. The court noted that the testimony was based upon...
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