Conning the IADC Newsletters.

Recognizing that a wide range of practical and helpful material appears in the newsletters prepared by committees of the International Association of Defense Counsel, this department highlights interesting topics covered in recent newsletters and presents excerpts from them.

Application of Daubert Is a Puzzle

Writing in the June newsletter of the Drug, Device and Biotech Committee, Jack D. Maroney of the Austin, Texas, office of Locke Purnell Rain and Harrell, with the assistance of B. Keith Ingram and John R. Nelson, finds a jungle of decisions on the issue:

In 1993, the U.S. Supreme Court decided Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579, and began a revolution in how trial courts evaluate the admissibility of expert testimony. There is general consensus among the courts that the Court displaced the 1923 Frye test (293 F. 1013) regarding the admissibility of scientific expert testimony. But the Court left unresolved the issue of whether Daubert should be applied to all expert testimony, including that based on expertise in the "soft" sciences and expertise gained through experience and training, or whether it should be applied only to expert testimony based on expertise in the "hard" sciences. The Court stated in footnote 8, "Rule 702 also applies to `technical or other specialized knowledge.' Our discussion is limited to the scientific context because that is the nature of the expertise offered here."

Most of the federal courts of appeal have directly addressed this issue. Several have either held, explicitly or impliedly, that the Daubert criteria apply to all expert testimony; others have explicitly held that the applicability of those criteria is limited to "hard-science" expert testimony. At least one circuit has grafted a Daubert-like threshold inquiry onto Rule 702 of the Federal Rules of Evidence to test the admissibility of all expert testimony.

Circuits applying Daubert

Since the Supreme Court in Daubert noted that its opinion was limited by the facts before it to the consideration of scientific expert testimony only, it declined to comment regarding expert testimony outside the scientific context. The Third, Seventh and Eighth Circuits have interpreted the Court's opinion in Daubert to apply to all expert testimony. Kannankeril v. Terminix International Inc., 128 F.3d 802, 807 (3rd Cir. 1997); Tyus v. Urban Search Management, 102 F.3d 250, 263 (7th Cir. 1996); Peitzmeier v. Hennessy Industries Inc., 97 F.3d 293,297 (8th Cir. 1996), cert. denied, 117 S.Ct. 155 (1997), followed in Dancy v. Hyster Co., 127 F.3d 649, 652 (8th Cir. 1997), cert. denied, 118 S.Ct. 1186 (1998).

Additionally, the District of Columbia Circuit has applied Daubert to nonscientific expert testimony regarding lost wages. Joy v. Bell Helicopter Textron Inc., 999 F.2d 549, 567-70 (D.C. Cir. 1993).

In Kannankeril, the Third Circuit applied Daubert to expert testimony based on experience and training, specifically to the admissibility of a doctor's differential diagnosis as a technique of assessing a patient's medical condition.

In Tyus, the Seventh Circuit held that Daubert demands expert testimony "be tested to be sure that the person possesses genuine expertise in the field and that her court testimony `adheres to the same standards of intellectual rigor that are demanded in [her] professional work.'" In fact, the court expressly stated, "The Daubert framework is appropriate for all kinds of expert testimony; we do not agree with the Tenth Circuit's decision in Compton v. Subaru of America Inc., 82 F.3rd 1513, 1518-19 (10th Cir. 1996), that it is limited to cases of novel scientific theories or methodologies."

In Dancy, the Eighth Circuit noted that the plaintiff attempted to avoid the effects of Daubert by contending that it does not apply unless the expert's testimony will rely on scientific principles or methods. The court stated, "We have expressly rejected this argument." It then upheld the decision of the district court to exclude the testimony of a mechanical engineer. The Eighth Circuit earlier stated in Peitzmeier that Daubert was not to be narrowly read as applying only to novel scientific testimony.

Only scientific expert testimony

The Second, Fourth, Fifth, Sixth, Ninth, 10th and 11th Circuits have interpreted Daubert to apply only in situations where a party proffers scientific expert testimony. Iacobelli Construction Inc. v. County of Monroe, 32 F.3d 19, 25 (2d Cir. 1994); Freeman v. Case Corp., 118 F.3d 1011, 1016 (4th Cir. 1997); Binakonsky v. Ford Motor Co., 133 F.3d 281, 290 (4th Cir. 1998); United States v. 14.38 Acres of Land, Situated in LeFlore County, MS, 80 F.3d 1074, 1076-78 (5th Cir. 1996); United States v. Jones, 107 F.3d 1147, 1156 (6th Cir. 1997); Berry v. City of Detroit, 25 F.3d 1342, 1349-50 (6th Cir. 1994); United States v. Bighead, 128 F.3d 1329, 1330 (9th Cir. 1997); United States v. Cordoba, 104 F.3d 225, 230 (9th Cir. 1997); Compton v. Subaru of America Inc., 82 F.3d 1513, 1518-19 (10th Cir. 1996), cert. denied, 117 S.Ct. 1022 (1997); Carmichael v. Samyang Tire Inc., 131 F.3d 1433, 1435 (11th Cir. 1997).

In Iocabelli, the Second Circuit held the affidavits of two construction consultants did not "present the kind of `junk science' problem that Daubert meant to address." The court cited its earlier case, Tamarin v. Adam Caterers Inc., 13 F.3d 51, 53 (2d Cir. 1993), that Daubert "specifically dealt with the admissibility of scientific evidence."

By its rulings in Freeman and Binakonsky, the Fourth Circuit took a similar position that Daubert is "inapplicable to testimony based on experience and training."

The Fifth Circuit joined these other circuits through its opinion in an eminent domain case, 14.38 Acres, in which it stated that Daubert's applicability goes no further than scientific expert testimony. It reversed a trial court's determination that real estate experts were subject to the criteria of Daubert, stating, "The experts' inability to predict the extent of flooding ... does not render their testimony entirely speculative and therefore unreliable for purposes of admissibility." By rejecting the trial court's exclusion of these experts, which had been based on Daubert grounds, the court clearly revealed its position on this debated issue.

The Sixth Circuit faced a clear case of non-scientific expert testimony in Berry when it reviewed whether a former police officer and sheriff, who was a consultant on criminal justice, would be required to meet the Daubert criteria. Expressly recognizing that Daubert was limited to the scientific context, the court evaluated the consultant's testimony under Rule 702 and reminded the trial court of its "gatekeeper" function, which is applicable to all expert testimony.

Later, in Jones, the Sixth Circuit reiterated its position that "although Daubert dealt with scientific experts, its language relative to the `gatekeeper' function of federal judges is applicable to all expert testimony offered under Rule 702." The court again reminded trial courts of their duty to evaluate relevancy and reliability, but it cautioned that this obligation flows from Rule 702, not from Daubert. The Sixth Circuit further clarified its position on this issue by aligning itself with several other circuits that also had abstained from applying Daubert to non-scientific expert testimony.

The Ninth Circuit concluded in Cordoba that Daubert applies only to the admission of scientific testimony. It stated: "In order to qualify as scientific knowledge, an inference or assertion must be derived from the scientific method. The government expert testified on the basis of specialized knowledge, not scientific knowledge. Thus, Daubert is inapplicable."

Perhaps the most frequently cited opinion on this issue is the Tenth Circuit's in Compton, in which the court held that the trial court erred in applying Daubert's test for admissibility of scientific evidence to the proffered opinion testimony of an engineer. The plaintiff in that case argued that the engineer "reached his conclusions based upon his own expertise and experience, not the methods and procedures of science." Therefore, the plaintiff contended, the Daubert factors had little, if any, bearing on his testimony. In response, the Tenth Circuit stated, "The language in Daubert makes clear the factors outlined by the Court are applicable only when a proffered expert relies on some principle or methodology. In other words, application of the Daubert factors is unwarranted in cases where expert testimony is based solely upon experience or training."

The Compton court concluded that expert testimony based on experience and training must be found to be both relevant and reliable under Rule 702 of the Federal Rules of Evidence in order to be admitted. It, "In sum, we do not believe Daubert completely changes our traditional analysis under Rule 702. Instead, Daubert sets out additional factors the trial court should consider under Rule 702 if an expert witness offers testimony based upon a particular methodology or technique."

In Carmichael, the 11th Circuit quoted the Seventh Circuit's holding in United States v. Sinclair, 74 F.3d 753, 757 (7th Cir...