Hired Opinions: Ethics and Expert Witnesses
| Jurisdiction | Kansas,United States |
| Citation | Vol. 91 No. 5 Pg. 27 |
| Pages | 27 |
| Publication year | 2022 |
September, 2022
By J. Nick Badgerow
I. Introduction and Overview
The trial of many cases, both civil and criminal, requires the aid of expert witnesses to help the finder of fact understand fields, sciences, and specialized practices with which the average judge or jury is not familiar. In many trials, the aid of a qualified expert witness is very helpful for the court or jury adequately to find the facts and resolve the issues. In some cases, it is absolutely or even legally necessary.[1] For example:
Expert testimony is necessary to prove a deviation from the standard of care by a health care provider where normal experience and qualifications of laypersons serving as jurors would not permit them to draw proper conclusions. Pope v. Ransdell, 251 Kan. 112, 120, 833 P.2d 965 (1992).[[2]]
As a practical matter, expert witnesses are retained and paid by one of the parties, and then these experts present their paid opinion testimony in support of the party who hired them.
As such, one would expect the expert's testimony to support he position of the party who hired, paid, and called that Person to testify. One would not call any witness to testify if he witness's testimony was not expected to be helpful. But 5 the expert witness merely a "gun for hire," whose opinions ill support the highest bidder?
What ethical considerations should confront a proposed expert witness who is considering, studying, arriving at, and hen presenting expert opinions? Indeed, are there any? The purpose of this article is to explore and discuss these issues, with the hope that potential expert witnesses will, in fact, give hem due consideration.
II. The Expert's Role
Expert testimony is admissible in Kansas courts under certain specified circumstances. For many years, Kansas followed the est set out in Frye v. United States.[3] See In re Girard.[4] The Frye est required that before expert scientific opinion testimony nay be admitted into evidence, the basis of the opinion must be generally accepted as reliable within the expert's particular field.[5] Then in 2014, the Kansas statute governing expert testimony, K.S.A. 60-456(b), was changed to read as follows:
(b) If scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue, a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if: (1) The testimony is based on sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has reliably applied the principles and methods to the facts of the case.[[6]]
This statute essentially codifies the principles announced by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals .[7] In Daubert, the Court stated that opinion evidence based on scientific knowledge may be admitted only after it has been established that the evidence is reliable and scientifically valid. The Daubert court assigned the trial judge the role of "gatekeeper" with "the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand,"[8] and to exclude scientific claims supported by junk data. Later, the Court expanded the use of the Daubert factors to evaluate non-scientific experts in Kumho Tire Co. Ltd. v. Carmichael.[9]
After the Kansas Legislature's adoption of the Daubert standards into the Kansas Rules of Evidence, the new standards were first applied by the Kansas Supreme Court in Smart v. BNSF Railway Co.[10]
The Daubert/60-456(b) standard may be summarized as follows:
(1) The court must decide whether the expert is qualified "by knowledge, skill, experience, training, or education" to render an opinion.
(2) The court must determine whether the expert's testimony in the case would be reliable and helpful to a jury. A court determines how helpful expert testimony is by evaluating whether the testimony is relevant and whether the "methodology properly can be applied to the facts in issue."[11] Specifically, as defined in K.S.A. 60-456(b), the court determines if the testimony is based on "sufficient facts or data" and is "the product of reliable principles and methods" and whether "the witness has reliably applied the principles and methods to the facts of the case."
(3) The court must determine the reliability of proposed scientific testimony by determining:
a. If the theory has been tested;
b. whether the theory has been subject to peer review or publication; or
c. if there is a known or potential rate of error for the theory; and
d. whether the theory has gained widespread acceptance. While the "general acceptance" test is no longer determinative, it lends a great deal of credibility to the theory.[12]
It is important to note, however, that these standards are not inflexible, and that the court must use judgment in their application, because every case, every expert, and every opinion is different.
These factors are nonexclusive because the reliability inquiry must be tied to the particular circumstances of the particular case. As the U.S. Supreme Court said in Kumho Tire, "Daubert makes clear that the factors it mentions do not constitute a "˜definitive checklist or test.' [Citation omitted.] And Daubert adds that the gatekeeping inquiry must be "˜tied to the facts' of a particular "˜case.'" Kumho Tire, 526 U.S. at 150, 119 S.Ct. 1167. In short, the inquiry is "a flexible one." Daubert, 509 U.S. at 594-95, 113 S.Ct. 2786; Kumho Tire, 526 U.S. at 141, 119 S.Ct. 1167; see Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995) ("[W]e do not deem each of them to be equally applicable [or applicable at all] in every case."). "And Kumho Tire teaches that "˜[t]he trial court must have the same kind of latitude in deciding how to test an expert's reliability ... as it enjoys when it decides whether or not that expert's relevant testimony is reliable.' 526 U.S. at 152, 119 S.Ct. 1167."[[13]]
The expert witness is unusual as someone who does not appear in court to present personally known or observed facts. The expert almost never has first-hand knowledge of any of the facts at issue in the case. Instead, the expert witness gleans the facts from employer-provided documents and information and then expresses opinions based on analysis of those facts, measured against specialized education or personal...
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