An Analysis of the Admissibility of Expert Opinion Testimony in Kansas State Courts After Kuhn v. Sandoz Pharmaceuticals
| Publication year | 2002 |
| Pages | 28-31 |
71 J. Kan. Bar Assn. 2, 28-31 (2002). An Analysis of the Admissibility of Expert Opinion Testimony in Kansas State Courts After Kuhn v. Sandoz Pharmaceuticals
71 J. Kan. Bar Ass'n, Feb. 2002, 28-31 (2002)
Jim Griffin is a partner at Blackwell Sanders Peper Martin, Kansas City, Missouri, specializing in complex civil litigation. Griffin graduated from Kansas State University in 1980 and the University of Virginia School of Law in 1983.
I. Introduction
Over the last decade there has been an explosion of scrutiny of and debate over the standards for admissibility of expert testimony. Federal courts have imposed a strict gatekeeping function on the trial judge with the cases of Daubert,[1] Kumho,[2] and, most recently, an amendment to the Federal Rules of Evidence.[3] Before Daubert, the federal courts operated under the Frye [4] standard. The Kansas Court of Appeals has rejected the Daubert standard[5] for the admissibility of expert testimony.[6] The Supreme Court of Kansas, in Kuhn v. Sandoz Pharmaceuticals Corp.,[7] held that in some circumstances in Kansas neither Frye nor any reliability standards, such as those set out in Daubert, will be applied to determine the admissibility of expert testimony. Kuhn can be read to say that if an expert has paper credentials and does not purport to use any methodology at all to arrive at an opinion, the opinion is automatically admissible as a "pure opinion." Lawyers trying cases in Kansas will be dealing with the dramatic opinion in Kuhn for years to come.
A 1997 article by Mark D. Hinderks and Hon. Steve Leben discussed the admissibility of expert testimony in Kansas with a helpful comparison of the federal and Kansas state court actions.[8] In contrast, this article focuses more narrowly on the admissibility of expert opinion testimony in Kansas state courts, given the Court's decision in Kuhn.
II. Background
In Kansas, as in the federal courts, the responsibility to determine the admissibility of expert opinion testimony rests squarely with the trial judge.[9] Although Kansas has never adopted the Daubert standard for admissibility, several Kansas cases before Kuhn rejected expert testimony because of reliability problems.
For example, in Olathe Manufacturing v. Browning Manufacturing,[10] the plaintiff sought to introduce expert opinion testimony by an economist. The economist planned to testify regarding the plaintiff's lost profits based on projections derived from a market research survey. The trial court barred the expert from testifying because his testimony was based on inadmissible hearsay. On appeal, the Court reviewed the lower court's determination for an abuse of discretion "which results in prejudice to the party whose testimony was excluded."[11] The Court pointed out that the expert "did not remember" where he obtained some of the figures, "did not know" which products to which the figures were attributable, and obtained some of the numbers "from customers who had talked to salespeople, or from distributors who had talked to customers, or from former employees."[12] Accordingly, the trial court properly excluded his testimony, which was based on a "mere guess" rather than supported by facts.[13] Citing prior Kansas case law, the Court noted that the district court must require the party claiming lost profits to provide "the best proof available under the circumstances."[14] Accordingly, the trial court did not abuse its discretion in holding that the lost profit evidence was speculative because the testimony was based on "rumors, guesses, and assumptions."[15] In other words, the factual basis for the expert's opinion was not sufficiently reliable.
In Marshall v. Mayflower,[16] the defendant sought to introduce the expert opinion testimony of an accident reconstruction expert. The trial court ruled the expert's testimony was inadmissible because it was unnecessary under the facts of the case, and because there was an insufficient foundation for his opinions. On appeal, the Court reviewed this decision for an abuse of discretion relying on a standard it described as "whether no reasonable person would agree with the trial court."[17] The Court pointed out that a reasonable person could agree with the trial court that the accident reconstructionist's expert testimony was not necessary under the facts of the case. The parties already had available the testimony of several eyewitnesses, most of the drivers involved in the multi-vehicle collision, and three highway patrol officers who investigated the accident. In addition, the evidence included the official highway patrol accident diagram that incorporated pertinent measurements, and numerous photographs of the vehicles and accident scene. The expert's opinions...
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