Defending Daubert: it's time to amend Federal Rule of Evidence 702.

Author:Bernstein, David E.


The 2000 amendments to Rule 702 sought to resolve the debate that had emerged in the courts in the 1990s over the proper meaning of Daubert by codifying the rigorous and structured approach to expert admissibility announced in the Daubert trilogy. Fifteen years later, however, the amendments have only partially accomplished this objective. Many courts continue to resist the judiciary's proper gatekeeping role, either by ignoring Rule 702's mandate altogether or by aggressively reinterpreting the Rule's provisions.

Informed by this additional history of recalcitrance, the time has come for the Judicial Conference to return to the drafting table and finish the job it began in 2000. Rule 702 should be amended to secure the promise of Daubert and effectively protect future litigants and juries from the powerful and quite misleading impact of unreliable expert testimony.

TABLE OF CONTENTS INTRODUCTION I. THE 2000 AMENDMENTS TO RULE 702 II. JUDICIAL DISREGARD OF AMENDED RULE 702 III. CONTINUED DIVISIONS IN THE COURTS OVER THE SCREENING OF EXPERT TESTIMONY A. Conflict over the Requirement that an Expert Reliably Apply His Principles and Methods to the Facts of the Case B. Conflict over the Requirement that an Expert's Testimony Be Based upon Facts that Reliably Support His Opinion C. Conflict over the Requirement that an Expert's Methodology Be Objectively Testable IV. A PROPOSED AMENDMENT TO RULE 702 CONCLUSION INTRODUCTION

Until the mid-1980s, American courts, including federal courts, typically applied a very lenient standard to the admissibility of expert testimony. (1) With the exception of the general acceptance test outlined in Frye v. United States, (2) which was applied primarily to a narrow category of forensic testimony in criminal cases, (3) the only significant limitation unique to expert testimony was that an expert witness needed to be qualified in his field, with qualifications defined liberally. (4)

The rise of toxic tort litigation, characterized by cases often based on scientific premises that were dubious at best, led federal courts to apply the original Federal Rule of Evidence 702 (Rule 702) in novel ways to develop more stringent standards for the admissibility of expert testimony. (5) Some courts began to apply the Frye test to toxic tort controversies. (6) Other courts developed a test meant to ensure that expert testimony was "reliable." (7) Still others were content with the "let-it-all-in" philosophy, though at times with an allowance for excluding expert testimony contradicted by a wealth of empirical studies. (8)

In 1993, in the landmark case of Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court resolved the debate in favor of the reliability test. (9) The Court held that in referencing scientific "knowledge," Rule 702 established reliability as a prerequisite for the admissibility of expert scientific testimony. (10)

However, the Court larded Daubert with conflicting rhetoric that left ambiguous whether the case should be interpreted as establishing a strict or lenient standard of admissibility. (11) On the one hand, the Court noted "the 'liberal thrust' of the Federal Rules [of Evidence] and their 'general approach of relaxing the traditional barriers to "opinion" testimony,'" (12) and emphasized the "flexible" nature of the inquiry in which trial courts must engage. (13) The Court expressed optimism about the capabilities of the adversarial process and of the jury, and spoke of "shaky but admissible evidence." (14)

On the other hand, the Court insisted that trial court judges adopt "a gatekeeping role" to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." (15) The Court emphasized that Rule 702 "requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility." (16) And the Court explained that under the Federal Rules, a trial judge "exercises more control over experts than over lay witnesses." (17)

In two subsequent cases, General Electric Co. v. Joiner (18) in 1997 and Kumho Tire Co. v. Carmichael (19) in 1999, the Court clarified several post-Daubert disputes that had arisen between courts citing to these competing Daubert passages. Joiner held that (a) the reliability test may be applied to an expert's reasoning process, not just to his general methodology, and (b) appellate courts should review all district court admissibility rulings under Daubert via the abuse-of-discretion standard, regardless of whether the lower court excluded or admitted the testimony at issue. (20) Kumho Tire held that the reliability test applies to nonscientific as well as scientific expert testimony. (21) This prevented courts from evading the reliability test by declaring the testimony at issue to be "non-scientific." (22)

By 2000, the Court unambiguously stated that Daubert established "exacting standards of reliability" for the admissibility of expert testimony. (23) Some willful lower court judges, however, had shown a propensity to ignore the revolutionary implications of the Daubert trilogy, (24) preferring to apply the much more liberal pre-Daubert standards. (25) Given that the original language of Rule 702 was hardly clear, (26) and that many courts insisted on relying on that language plus cherry-picked, permissive-sounding language from Daubert (without regard for Joiner and Kumho Tire), momentum built to amend the Federal Rules of Evidence to better reflect and clarify the rule on expert admissibility. (27)

In 2000, the Judicial Conference of the United States, with the approval of the Supreme Court and Congress, amended Federal Rule of Evidence 702 for the express purpose of resolving conflicts in the courts about the meaning of Daubert. (28) Through this amendment, the Judicial Conference sought to codify a "more rigorous and structured approach" to the scrutiny of expert testimony than some courts were then employing. (29) The Judicial Conference rejected the argument that Daubert scrutiny was directed solely at unfounded methodologies such as astrology. (30) Rather, the Conference clarified, or so it thought, that trial courts must scrutinize the factual foundation of expert testimony and the reliability not only of the expert's methodology but also of the expert's application of that methodology to the facts at issue. (31)

Fifteen years have passed, and it is now apparent that the 2000 amendments to Rule 702 have not succeeded in entrenching these requirements. Although many courts have faithfully applied amended Rule 702, the same divisions that existed in the courts prior to 2000 continue to exist today--and on the very same issues that the Judicial Conference sought to resolve.

For example, the Ninth Circuit recently held that a district court must confine its analysis of expert testimony solely to the reliability of the expert's methodology and must leave to the jury the question of whether the expert applied that methodology in a reliable manner. (32) In so holding, the Ninth Circuit not only disregarded the clear intent of amended Rule 702(d), but also remarkably rejected the holding of the very same Third Circuit case upon which the Judicial Conference directly relied in 2000 when it included that provision in Rule 702. (33) As we shall see, this is far from the only circuit court opinion to ignore amended Rule 702 in favor of more lenient admissibility standards. (34)

It is not terribly surprising that some judges have continued to resist the revolutionary change in the way federal courts address the admissibility of expert testimony. Rule 702, as amended, not only codifies radical changes in the substantive law of expert testimony, (35) but it also places substantial new demands on judges by requiring them to take a far more managerial role over expert witnesses. (36) Although the language of the 2000 amendments appeared sufficient at the time to rein in recalcitrant judges who had tried to evade the Daubert trilogy's exacting admissibility standards, with the benefit of hindsight, it is now clear that the Judicial Conference failed to account for the tenacity of those who prefer the pre-Daubert approach to expert testimony.

First, a number of courts have simply ignored the Rule 702 amendment, relying instead on Daubert case law prior to the amendment or even on case law prior to Daubert itself. (37) At least some of these courts seem to have misread the Advisory Committee's explanation that Rule 702 was "amended in response to Daubert v. Merrell Dow Pharmaceuticals, Inc. and to the many cases applying Daubert" (38) as meaning that the Rule 702 amendments left all preamendment case law intact. (39) In fact, as we shall see, the amendments were explicitly meant to take sides in disputes that had arisen in federal precedents after Daubert. (40)

Relatedly, many courts continue to rely on the Supreme Court's analysis of Rule 702 in Daubert, failing to recognize that the wording of the Rule at the time of Daubert was significantly different than the amended Rule as it exists today. (41) Finally, as discussed in Part IV, the partial failure of the 2000 amendments can be attributed to faulty draftsmanship, because the amendments' language is insufficiently blunt to restrain judges who are inclined to resist a strong gatekeeper role.

The continued divisions among the federal courts over the proper standards for admission of expert testimony have resulted in the uneven administration of justice in the federal courts. Judicial protection from unreliable expert testimony has become dependent upon the happenstance of the jurisdiction in which a case is filed, or even the particular judge the parties happen to draw. This disarray not only contradicts the intent of the 2000 amendments to Rule 702; it also conflicts with Congress's broader intent that the Federal Rules of Evidence have uniform application nationwide. (42)

Most important, the failure of the 2000...

To continue reading