Encouraging more effective use of court-appointed experts and technical advisors.

• Author: Campbell, Natasha I.

With the increasing need for sound experts in courtrooms, efforts should be concentrated on using available means to obtain them

CONCURRING in General Electric Co. v. Joiner, Justice Breyer quoted the following from the amicus curiae brief of the New England Journal of Medicine:

[A] judge could better fulfill this gatekeeper function if he or she had help from scientists. Judges should be strongly encouraged to make greater use of their inherent authority ... to appoint experts.... Reputable experts could be recommended to courts by established scientific organizations, such as the National Academy of Sciences or the American Association for the Advancement of Science.(1) In complex products liability actions, mass tort litigation, and patent cases, courts are being inundated with cases that raise controversial questions of science, technology and medicine. While the use of court-appointed advisors and experts has long been seen as potentially beneficial in these types of cases,(2) court-appointed advisors and experts have not yet been widely used. A survey conducted by the Federal Judicial Center suggests that many judges are reluctant to intrude into the presentations of the parties, but the survey also indicates that there is little available guidance on the selection and use of advisors or experts.(3)

Federal Rules of Evidence 104 and 706, which are the rules relied on for court appointments of advisors and experts, respectively, provide no direction on how to locate suitable experts or when they should be used. Available case law is hardly more instructive.

COURTS' GATE-KEEPING ROLE

In 1923 in Frye v. United States, the Court of Appeals for the District of Columbia held that scientific evidence must have gained "general acceptance in the particular field in which it belongs" in order to be admissible.(4) This became the prevailing test for deciding the admissibility of expert testimony, but it drew some criticism because of difficulties in its application.(5) After the adoption of the Federal Rules of Evidence in 1975, and amid the increasing criticism of the Frye test, courts were split over whether Frye should govern. Courts that were unwilling to use Frye adopted various other tests for evaluating the admissibility of scientific evidence. Different tests led to varied outcomes and set the stage for a resolution by the U.S. Supreme Court.

The Supreme Court addressed the issue in 1993 in Daubert v. Merrell Dow Pharmaceuticals Inc., holding that the Federal Rules of Evidence superseded Frye and that Rule 702 does not require "general acceptance" as a prerequisite to admissibility.(6) Where scientific expert testimony is advanced, the Court stated, the "trial judge, pursuant to Rule 104(a), must make a preliminary assessment of whether the testimony's underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue." Thus, the Court set up the trial court as a gatekeeper to control the admission of scientific testimony.

The Court mentioned a number of relevant factors for the gatekeeper to consider: (1) whether the theory or technique can and has been tested, (2) whether it has been subjected to peer review and publication, (3) the known or potential rate of error of a particular theory or technique and (4) whether the theory has been generally accepted in the relevant scientific community. The Court noted, however, that this inquiry is "flexible," and it referred to a number of jurisdictions that have adopted their own reliability approach.(7) It made only a passing reference to court appointment of an expert and no reference to court appointment of an advisor.

In 1999, in Kumho Tire Co. v. Carmichael,(8) the Supreme Court clarified that Daubert applies not just to proposed expert testimony based on "science," but also to all expert testimony.

SOURCES OF AUTHORITY FOR COURT APPOINTMENT OF EXPERT

Two primary sources of authority allow federal courts to appoint an expert. First, the "inherent authority" of the court allows the appointment of experts necessary to assist the court in carrying out its duties. This authority primarily relates to the appointment of "technical advisors," who do not testify at trial, but who are consultants to the judge.(9) Second, Rule 706 specifically authorizes courts to appoint experts who will testify at trial or at pretrial proceedings.

These two sources of authority contemplate somewhat different roles for the expert.

1. Inherent Authority

   The "inherent authority" to appoint technical advisors was first recognized by the Supreme Court in Ex parte Peterson,(10) in which Justice Brandeis ruled that judges have the power to avail themselves of the "appropriate instruments required for the performance of their duties." The Court held that the appointment of an expert auditor reporting to the court was proper because it enabled the judge "to perform his duty of defining to the jury the issues submitted for their determination and of directing their attention to the matters actually in issue."

   More recently in Reilly v. United States, the First Circuit acknowledged the inherent judicial power to appoint an expert advisor.(11) Reilly, a medical malpractice case, distinguished technical advisors from court-appointed experts, holding that technical advisors are not subject to the Federal Rules of Evidence because they do not testify at trial and do not contribute evidence. The court observed, however, that such appointments "should be the exception and not the rule, and should be reserved for truly extraordinary cases." Furthermore, the court found that the role of the technical advisor is mainly to "act as a sounding board for the judge--helping the jurist educate himself in the jargon and theory disclosed by the testimony and to think through the critical technical problems." The use of technical advisors should be a "near-to-last resort," the court stated, "to be engaged only where the trial court is faced with problems of unusual difficulty, sophistication, and complexity."(12)

   Reilly and subsequent cases have held that the procedural framework set forth in Rule 706 does not apply to technical advisors because they do not supply evidence or make any findings. Technical advisors are not subject to depositions, cross-examination and other procedural safeguards intended to protect against abuse, unless the court expressly provides for them. In addition, some courts have not allowed the parties to participate in the selection of the advisor or to obtain copies of the advisor's report.(13)

2. Rule 706

   Federal Rule of Evidence 706 specifically authorizes courts to appoint experts who will testify at trial or at pretrial proceedings. Under Rule 706, judges may appoint experts on their own initiative or on the motion of any party. The rule imposes procedural limitations: (1) expert witnesses will not be appointed unless they have agreed to testify; (2) the court must define their duties in writing and file a copy with the court clerk to be accessible to all parties; (3) the experts must report their findings to the parties; (4) the parties must be afforded an opportunity to depose and cross-examine the experts; and (5) the appointment of expert witnesses is reviewed on appeal under an abuse of discretion standard.(14)

   Rule 706(d) provides that the appointment of an expert does not limit the ability of the parties to call their own expert witnesses. The rule, however, does not provide any guidance as to when an expert should be appointed or how a court should select an expert.

   WHEN TO CONSIDER APPOINTMENT OF EXPERT

   As litigation "increasingly involves issues calling for scientific, technical or other specialized knowledge, and judges and juries are confronted with contradictory opinions from opposing experts, interest in court-appointed experts has grown."(15) The utility of court-appointed experts has been recognized by a number of courts.(16) Because of the increase in complex litigation, particularly in the areas of products liability and intellectual property, the use of court-appointed expert witnesses is likely to increase.(17)

   The use of court-appointed experts is not limited to complex tort cases. In criminal trials, scientific evidence is increasingly relied on to bolster cases based on circumstantial evidence.(18) In addition, court-appointed experts have been utilized in copyright infringement(19) and desegregation cases.(20)

   Court-appointed experts and advisors may serve several purposes. They may advise the court on technical issues, aid the judge in determining whether "the methodology behind a proffered opinion is based on scientifically valid principles," provide a "reference point for a jury trying to determine the scientific truth based on biased testimony from party experts,"(21) or provide a neutral opinion on disputed scientific or technical issues.(22)

   In 1994, the Federal Judicial Center surveyed federal judges on their use or nonuse of court-appointed experts.(23) Only 86 of 431 judges surveyed had appointed an expert under Rule 706. Judges who had done so cited several reasons, the most common being that the expert aided the court's understanding of the merits of the litigation. In addition, the judges viewed court-appointed experts as helpful in combating the effects of "expert shopping" and in resolving contradictory opinions given by opposing parties' experts and in providing a balanced perspective where one party could not afford to hire an expert. The study indicated that court-appointed experts may enhance the potential for settling cases.

   Proponents of court-appointed experts and advisors argue that their use improves the information available to the fact-finder and may fill in gaps of knowledge necessary for a resolution of the parties' dispute. Even if the use of court-appointed experts does not result in settlement, it may increase the efficiency of the trial process by narrowing the issues and...