Developing a Coherent Theory of the Structure of Federal Rule of Evidence 703 - Edward J. Imwinkelried

• Citation: Vol. 47 No. 2
• Publication year: 1996

Developing a Coherent Theory of the Structure of Federal Rule of Evidence 703

Edward J. Imwinkelried^*

"If you wish to converse with me, [first] define your terms." —Voltaire¹

Some commentators have suggested that the American judicial hearing is becoming trial by expert.² As recently as 1974, the Jury Verdict Reporter for Cook County, Illinois, listed only 188 regularly testifying experts.³ "Today, there are more than 3,100—a 1,540 percent increase."⁴ In the late 1980s, the Cook County state courts averaged one expert per trial.⁵ In some areas, the trend is even more pronounced. In the early 1990s, the Rand Corporation released a study of the use of experts in trials in California courts of general jurisdiction.⁶ Expert witnesses appeared in eighty-six percent of the trials studied, an average of 3.3 experts per trial.⁷

There is concern about the number of expert witnesses appearing in trials; however, more importantly, there is concern about the quality of the testimony which these witnesses proffer.⁸ In his 1991 text, Galileo's

Revenge, the Manhattan Institute's Peter Huber leveled the charge that much of this expert testimony is "junk science."⁹ The debate over this charge was spirited and sometimes bitter.¹⁰

This debate spilled over into the courts.¹¹ In 1993, the United States Supreme Court joined the debate by rendering its decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.¹² Daubert became a cause celebre. Even before the Court handed down its decision, the media fixed on the case.¹³ The subsequent decision was greeted with intense media attention.¹⁴

The level of attention was understandable. In Daubert, the Supreme Court abandoned the traditional general acceptance standard for determining the admissibility of scientific evidence.¹⁵ The standard dated back to the 1923 Frye¹⁶ test, which announced that an expert witness could not base testimony on a scientific technique unless the technique enjoys general acceptance in the pertinent scientific circles.¹⁷ The test was not only hoary; it had also been widespread. At one time, the general acceptance test appeared to be the law in at least forty-five states.¹⁸ Nevertheless, the Court stated that it could find no language in the Federal Rules of Evidence codifying a general acceptance standard.¹⁹ The Court reasoned that by enacting the statutory rules without codifying the general acceptance standard, Congress had impliedly abolished the standard.²⁰

To fashion a new standard to govern the admissibility of scientific testimony, the Court turned to the text of Federal Rule of Evidence 702. That statute reads: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."²¹ The Court focused on the expression, "scientific . . . knowledge" and refused to equate the expression with a body of immutably true, substantive propositions.²² Rather, the Court opted for a methodological definition, explaining that testimony which qualifies as "scientific . . . knowledge" admissible under Rule 702, if the expert's theory is the product of sound scientific methodology.²³ The Court elaborated that scientific methodology entails the formulation of hypotheses and subsequent conducting of observation or experimentation to disprove or validate the hypotheses.²⁴

By deriving the new standard from the statutory language, "scientific . . . knowledge," the decision in Daubert spotlighted Rule 702. However, in truth another statute, Rule 703, has been the most controversial aspect of expert testimony provisions in the Federal Rules.²⁵ Rule 703 provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.²⁶

Although it has been more than two decades since the Federal Rules of Evidence took effect in 1975,²⁷ many thorny questions about the interpretation of Rule 703 persist.²⁸ As Part II of this Article notes, there are five major splits of authority over the proper construction of Rule 703.²⁹ Thirty-eight states have evidence codes directly patterned after the Federal Rules of Evidence. Although the majority of those states adopted the federal version of Rule 703 without change, a number of states have amended their version of Rule 703.³⁰ Citing the controversies swirling around Rule 703 as a concern, the Massachusetts Supreme Judicial Court decided against adopting the rule for use in that state.³¹

The purpose of this Article is to help resolve those controversies. This Article's thesis is that the courts must resolve the threshold dispute over the meaning of "[t]he facts or data in the particular case,"³² before they can hope to intelligently dispose of the other four splits of authority. On occasion, some writers have at least passingly recognized a possible nexus among the various issues.³³ However, for the most part, the commentators have been content to discuss individual issues, without endeavoring to develop a coherent theory of the structure of Rule 703.³⁴

Hopefully, this Article will aid the courts and commentators in seeing the interconnected nature of all five splits of authority over Rule 703. Part I of the Article delves into the key dispute over the meaning of "facts or data in the particular case."³⁵ Part II describes each of the remaining four splits of authority. In addition, Part II demonstrates that each split relates back to the dispute over the meaning of "facts or data." To paraphrase Voltaire, if we are to have a productive conversation about Rule 703, we must first define our terms. On a previous occasion, I stated my position on the definition of "facts or data."³⁶ The purpose of this Article is not to reiterate that position. Instead, my intent is to help the courts appreciate that they must stake out a position on this dispute in order to sensibly resolve the other splits of authority. The courts must come to understand the need to formulate a coherent theory of Rule 703; and, as we shall see, a central tenet of that theory must be a definition of "facts or data in the particular case."

I. The Threshold Dispute Over the Scope of Rule 703: The Meaning of the "Facts or Data in the Particular Case"

The fundamental dispute is whether the expression, "the facts or data in the particular case,"³⁷ is limited to case-specific information or whether the expression also embraces research data.³⁸ To illustrate the distinction, consider the Daubert fact pattern. In that case, the plaintiffs were Mr. and Mrs. Daubert and their son, Jason. During the first trimester of her pregnancy with Jason, Mrs. Daubert had used the defendant's antinausea drug, Bendectin. Jason was subsequently born with serious limb defects. The plaintiffs argued generally that Bendectin is capable of causing such limb defects and specifically that Bendectin was the cause of the defects which Jason suffered. The plaintiffs offered several types of evidence to establish general causation, including in vitro (test tube) research, in vivo animal studies, and pharmacological analyses comparing the chemical structure of Bendectin with that of other substances known to cause birth defects.³⁹ In addition, the plaintiffs attempted to introduce testimony about an epidemiological re-analysis of the drug. They conceded that the published epidemiological analyses did not show a statistically significant correlation between the use of Bendectin and congenital limb defects. However, their experts contended that after the data in the published studies was pooled (a meta-analysis), a re-analysis yielded a statistically significant, and therefore potentially causal, relationship.⁴⁰

There is agreement that the validation test, which the Daubert Court derived from Rule 702, governs the question of the validity of the technique of epidemiological re-analysis.⁴¹ However, the unsettled question is which of the remaining components of the expert's reasoning process are governed by Rule 703. One view is that 703 governs everything else, including all the questions related to the research data re-evaluated by the plaintiff's experts in their meta-analysis.⁴² For example, was the size of the research database adequate, and were the individual studies which were pooled sufficiently comparable to permit meta-analysis?

The competing view is that those questions about reseach data fall under Rule 702, and that Rule 703 applies only to case-specific information. To make out a submissible tort case, the plaintiffs had to prove specific, as well as general, medical causation; they relied on their experts to prove both. In addition to testifying on the general medical causation issue of whether Bendectin can cause limb defects, the plaintiffs' experts proposed testimony regarding specific medical causation; they contemplated opining that given Mrs. Daubert's use of Bendectin and the type of defects which Jason incurred, Bendectin was the likely cause of Jason's limb deficits.⁴³ Under the competing view, Rule 703 would govern only the question of whether a proper basis existed for the plaintiffs' experts to assume that Mrs. Daubert ingested Bendectin (as opposed to another product), and that Jason suffered from the specific types of defects which Bendectin is capable of causing. Part of the mission of Rule 702 would be to govern the resolution of the technical, properly scientific questions.⁴⁴

A. The Broad View that Rule 703 Governs the Questions Related to the Research "Data" Supporting the Finding of General Medical Causation

There is certainly a case to be made for this view. The case...