Chapter 8A Engaging and Working with Experts

• Jurisdiction: United States

Chapter 8A Engaging and Working with Experts
Carolyn L. McIntosh Sam Ballingrud Squire Patton Boggs (US) LLP Denver, CO

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CAROLYN L. MCINTOSH is a senior partner in the Denver office of international law firm Squire Patton Boggs and a member of the firm's Environmental, Safety & Health Practice Group. She counsels clients on complex environmental compliance, permitting, and federal land approvals, as wells as environmental, natural resources, and public lands litigation. Her work includes environmental permitting and land use matters arising under federal and state environmental laws including, CERCLA, RCRA, the Clean Water Act, the Safe Drinking Water Act, the National Environmental Policy Act, the Federal Land Policy and Management Act, the General Mining Law of 1872, Mineral Leasing Acts, the National Historic Preservation Act, and state counterpart laws. Carolyn's clients include mining companies, one of the nation's premier Class I railroads, renewable energy developers, and municipalities. She regularly works on matters before the US Environmental Protection Agency, the US Bureau of Land Management, the Army Corps of Engineers, and numerous state regulatory agencies. Carolyn is a member of the executive committee of the American Exploration and Mining Association and the current chair of the American Bar Association Superfund and Natural Resource Damages Litigation Committee.

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Expert witnesses are an essential component in virtually every natural resource litigation. From identification of environmental impacts, contaminant source location, fate and transport, and remediation technology selection, to remedy cost calculations, multiple scientific and technical disciplines must be engaged to understand fully the issues and solutions. Typically, litigation proceeds concurrently with site evaluation and ongoing remediation. Accordingly, evaluation and testing of hypotheticals and expert opinions about "what if scenarios is a fundamental part of both problem definition and problem solving. Further, explaining the problems, solutions, and associated costs to a judge or jury usually requires expert testimony.

This paper examines Federal Rule of Evidence 702 requirements and the standards for expert testimony, then considers the implications of forthcoming amendments to Rule 702, and concludes with practical considerations in selecting and working with expert witnesses.

I. FEDERAL RULE OF EVIDENCE 702 STANDARDS

The basis for our current approach to the admissibility of expert testimony developed first through the common law of evidence, the dominant contours of which were established by the "general acceptance test" set forth in Frye v. United States.¹ Congress enacted the Federal Rules of Evidence in 1975.² For many years thereafter, courts continued to apply the Frye standard. However, Daubert v. Merrell Dow Pharmaceuticals, Inc. rejected the continued viability of the "general acceptance" test, explaining that it was superseded by adoption of the 1975 Federal Rules of Evidence.³

A. Daubert Relevance and Reliability Requirements

In Daubert, the Court identified Rule 402 as setting the "baseline" for admissibility, providing that "all relevant evidence is admissible."⁴ Where "relevant evidence" is defined as any evidence "which has 'a tendency to make existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.'"⁵ The Court established twin guideposts for admissibility under Rule 702 of relevance and reliability.⁶ These twin guideposts are conditioned by several other requirements, including the requirement

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for the expert testimony to be based on accepted science and fit the facts of the case. The Court elaborated that Rule 702's reference to "scientific knowledge" involved the application of "a process for proposing and refining theoretical explanations about the world that are subject to further testing and refinement" (e.g., the scientific method) to better ensure reliability.⁷ Further, relevance includes a requirement that evidence "assist the trier of fact to understand the evidence or determine a fact in issue" and be tied to the facts of the case (described as "fit").⁸ The second prong of the analysis is not just an application of Rule 402 relevancy, but is designed to ensure that the proposed expert testimony "logically advances a material aspect of the proposing party's case."⁹ Finally, in Daubert, the Court expressly recognized the importance of the "gate-keeping" function of the trial judge to ensure "that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand."¹⁰

Following the landmark Daubert decision, four years later in General Electric Co. v. Joiner, the Supreme Court clarified that to ensure the reliability of evidence, a district court could exclude evidence when "there is simply too great an analytical gap between the data and the opinion proffered" or where the evidence "is connected to existing data only by the ipse dixit of the expert."¹¹ Moreover, the Court made clear that the standard of appellate review of district court rulings on expert testimony—whether a decision to allow or to exclude expert testimony—is the deferential abuse-of-discretion standard of review.¹² Just two years later, in Kumho Tire Co. v. Carmichael,¹³ the Court broadened Daubert, holding that the standard applied to all expert testimony, not just testimony of a scientific nature.

B. Current Rule 702

Federal Rule of Evidence 702 was amended in 2000 to incorporate the holdings in Daubert and the later cases Kumho and Joiner. Rule 702, Testimony by Expert Witnesses, provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

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(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.¹⁴

Even after the 2000 amendments to Rule 702, most courts and practitioners continue to refer to the standards embodied by the rule as "the Daubert test."

The Court in Daubert declined to identify a specific set of criteria for the trial court to conduct its evaluation regarding the reliability prong. The following factors may be relevant to the inquiry: 1) whether the theory or technique the expert employs is generally accepted in the scientific community; 2) whether it has been subjected to peer review and publication; 3) whether it can be and has been tested; and 4) whether the known or potential rate of error is acceptable. These factors are non-exhaustive and not every factor will be applicable in every case.¹⁵ A trial court also "may consider whether the expert's testimony holds together based on logic and common sense," such as whether the expert is unable to explain or adequately answer questions as to certain aspects of his analysis and whether the expert's opinion is based on inconsistent analyses or methods.¹⁶ Further, a witness without "education[,] training," or the relevant experience is "unqualified to give reliable testimony."¹⁷ Without grounding in skill, knowledge, or training, a court—as a gatekeeper—must exclude the expert's testimony.¹⁸

Regarding the requirements for relevance or "fit," case law has established that expert testimony is only admissible to the extent it relies upon "sufficient facts or data."¹⁹ Expert evidence may not rest on assumptions unsupported or contradicted by the record.²⁰ Where there are "no facts" in the record supporting an expert's opinion,

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or that opinion is "contradictory in material parts" to the record, it must be excluded.²¹ Opinions based on "unsubstantiated and undocumented information [are] the antithesis of . . . scientifically reliable expert opinion."²² Nor may an expert "take a results-driven approach to a question" including "selectively relying upon data so as to confirm his preconceived opinion."²³

Performing calculations and belatedly considering variables which an opposing expert correctly points out you did not do or know, and which you admitted you did not do or know, is not rebuttal—it is clearly the interjection of new opinion evidence. In this Court's view, such tactics weigh heavily in favor of finding that [the expert's] opinions are not reliable, and are, in fact, a results-driven product of litigation.²⁴

The standard "requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility."²⁵ The same standard applies to expert evidence in non-scientific, technical fields and other specialized knowledge such as finance and accounting.²⁶

Both Rule 702 and Daubert and its progeny recognize the importance of the trial court's "gatekeeper" function. The gatekeeper function is critical for several reasons. First, scientific expert testimony can be both powerful and quite misleading due to the difficulty in evaluating it, especially for lay jurors who may be overawed by impressive-sounding testimony from a well-credentialed self-proclaimed expert. Second, an expert "is permitted wide latitude to offer opinions, including those that are not based on

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firsthand knowledge or observation," but that liberal allowance is permitted only because an "expert's opinion [has] a reliable basis in the knowledge and experience of his discipline."²⁷ An expert's testimony—unlike every other witness'—often goes beyond the facts of the case and typically addresses more issues than any individual fact witness. Among other reasons, a fact witness is limited to what he saw or observed.

Trial courts act as "gatekeepers" to "ensure that the proposed expert testimony is relevant to...