Dimond, Not Daubert: Reviving the Discretionary Standard of Expert Admission in Alaska

• Citation: Vol. 25
• Publication year: 2008

§ 25 Alaska L. Rev. 213. DIMOND, NOT DAUBERT: REVIVING THE DISCRETIONARY STANDARD OF EXPERT ADMISSION IN ALASKA

Alaska Law Review
Volume 25, No. 2, December 2008
Cited: 25 Alaska L. Rev. 213

DIMOND, NOT DAUBERT: REVIVING THE DISCRETIONARY STANDARD OF EXPERT ADMISSION IN ALASKA

GREGORY R. HENRIKSON ^[*]

Alaska Law Review: Gregory R. Henrikson, Dimond, Not Daubert: Reviving the Discretionary Standard of Expert Admission in Alaska, 25 Alaska L. Rev. 213 (2008)

ABSTRACT

The law regarding the admission of expert testimony in Alaska has undergone considerable change within the last few years, largely as a result of the influence of federal law. This Article explores both the background of Alaska and also charts the development of the law following a series of influential federal cases. After reviewing this history, the author advocates allowing trial courts broader discretion to exclude experts, but without reliance on particular federal holdings. This discretion, the author argues, has been an integral part of a uniquely Alaskan approach to expert testimony, but has, unfortunately, been retracted in reaction to recent federal rulings.

TABLE OF CONTENTS

INTRODUCTION....................................................... 214

I. CREATION OF THE FEDERAL STANDARD FOR ADMISSION OF EXPERT TESTIMONY............................................... 215

II. ALASKA'S PRE-DAUBERT STANDARD: THE EXPERT WITNESS IN ALASKA FROM STATEHOOD.......................................... 220

A. The Origins of the Approach: Oxenberg v. State ............. 221

B. The Development of the Standard............................. 223

C . Qualification of the Expert to Testify Versus Qualification of the Expert as an Expert.................... 226

III. THE FEDERAL STANDARD IN ALASKA: ACCEPTING DAUBERT BUT REJECTING KUMHO TIRE........................................... 229

A. Frye and Daubert Battle in Alaska........................... 230

B. Marron v. Stromstad Rejects Kumho Tire and Repudiates Gatekeeping................................................. 232

C. The Mess Marron Has Made.................................... 233

IV. BACK TO THE FUTURE............................................. 236

CONCLUSION......................................................... 239

INTRODUCTION

How trial courts evaluate and admit expert testimony in Alaska has come under increased scrutiny in the past decade. A number of landmark decisions by the United States Supreme Court in the 1990s marked a change in the direction taken by federal courts and seemed to signal the beginnings of a similar shift in Alaska's courts. However, after initially accepting the federal approach of Daubert v. Merrell Dow Pharmaceuticals, ^[1] the Alaska Supreme Court rejected subsequent developments in the federal approach. ^[2] The Alaska Supreme Court has gone far in its rejection of what it has perceived as a trend towards judicial intervention into the jury's fact-finding role. This rejection has thrown into doubt the traditional role of trial courts as gatekeepers of proffered expert evidence. Unless the expert is offering a novel scientific theory, the trial court no longer appears to have the authority to verify the existence of sound methodology underlying the expert's opinions, or to bar those opinions which have no reasonable or logical basis. Under current law, experts in Alaska must show only minimal personal qualifications to be able to present an opinion to the jury, even if that opinion has no basis in sound methodology or utilizes no methodology at all. Any witness with bare-bones qualifications can proffer almost unlimited testimony within the broad and largely self-defined parameters of his expertise.

The Alaska Supreme Court's reaction to the federal developments, though based on a justified concern about putting judges in the role of fact finder, has ultimately done a disservice to court and jury alike. It is not sufficient to require disputes over expert methodology to be resolved by adversarial process before a jury. Juries are only given a limited set of facts and are not in a position to make admissibility determinations. Leaving the matter solely to the adversarial process invites an arms race of experts and the use of "hired gun" experts to voice whatever opinion is needed.

Yet the Alaska Supreme Court need not blindly follow or automatically adopt either the federal standard or the broad exclusionary approach that they have taken. All that is needed is a return to the common-sense, discretionary standard that held sway in this state long before the current battle over Frye v. United States, ^[3] Daubert, and Kumho Tire Co. v. Carmichael ^[4] found its way into Alaska courts. At the same time, Alaska could stay clear of the more invasive approach utilized by some of the federal courts. Thus, where an expert is able to voice a reasonable basis for an opinion that fairly fits the facts of the case and would be helpful to the jurors, the expert ought to be able to testify. There is no need for trial courts to substitute their own judgment for the judgment of the juries. Courts, however, should be permitted and encouraged to exercise their discretion to bar opinions which are based on pure guesswork or which lack the support of sound and logical methodology. Furthermore, trial courts should be given sufficient leeway to exclude those opinions which are within the comprehension of the jury, and therefore relate to facts which the jury needs no expert help in weighing.

In Parts I and II, this Article examines the development of the federal standard for admission of expert testimony and contrast it with Alaska's development. As will be shown, the two tracks have crossed at critical points, but each has its own standards and practices. In Part III, the Article explores emerging conflicts between the federal rules and Alaska's practices. Finally, this Article will argue that this conflict is largely unnecessary because it is merely based on misunderstandings of the federal system and a failure to draw from the wisdom of Alaska's own precedent.

I. CREATION OF THE FEDERAL STANDARD FOR ADMISSION OF EXPERT TESTIMONY

It is useful for our purposes to examine exactly how the conflict resolved by Daubert and Kumho Tire arose and to distinguish between the general rules of expert admission and the particular rules pertaining to novel scientific evidence. The famous Frye opinion forms part of the backdrop to the problem. In that case, the court of appeals was asked to review the exclusion of expert testimony regarding a primitive blood- pressure based lie detector. ^[5] The court, with minimal discussion or reasoning, held that "the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made." ^[6] It is surprising that such a short and terse opinion would set the standard for admission of novel scientific theories for decades to come, but that is more or less what happened. Courts nationwide cited Frye and created the "Frye standard." Under this approach, the admissibility of a novel scientific theory was tied to its acceptance in the scientific community. Opinions based on a theory, however reliable, that had not yet obtained "general acceptance" were excluded. ^[7]

The Frye approach was brought into question by the creation and adoption of new codified evidence rules by the federal courts and many states. These new rules included the following provision on the admission of expert witnesses:

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 . .. ^[8]

The rules further stated that "[p]reliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court." ^[9]

A faction of commentators and federal courts found a "gatekeeping" requirement implicit in these rules. ^[10] Under this approach, the court has authority to assess preliminary admissibility, and Rule 702 of the Federal Rules of Evidence implies that to be admissible the proffered testimony must take the form of "scientific, technical, or other specialized knowledge." ^[11] If the testimony is simply an unsupported assertion, then it cannot fit this basic definition and must be excluded.

The conflict came to a head in Daubert. ^[12] There, the United States Supreme Court faced the admissibility of an expert's scientific opinion as to whether Bendectin was a teratogen. ^[13] The district court heard extensive argument and expert testimony criticizing the methodology of the plaintiff's expert and ultimately held that "[g]iven the vast body of epidemiological data concerning Bendectin, . . . expert opinion which is not based on epidemiological evidence is not admissible to establish causation." ^[14] The court of appeals affirmed, citing the Frye general acceptance standard. The Supreme Court reversed, holding that Rule 702 had replaced the "austere" Frye standard. ^[15] The Court held...