Experts

• Author: Aaron B. Maduff
• Pages: 237-252

EXPERTS

8-1 LITIGATING SEXUAL HARASSMENT & SEX DISCRIMINATION CASES §8.1

CHAPTER 8: EXPERTS

§8.1 TASK: DETERMINE WHETHER TO RETAIN EXPERTS

§8.1.1 WHAT AND WHY

Simply put, an expert witness is one who gives opinion testimony, as opposed to fact testimony. The purpose

of trial witnesses is to provide facts, and it may be true that two witness provide opposing facts. For example,

one witness may say that the light was red when the car went through the intersection, while another says that it

was green. At least one is obviously wrong, but their testimony is about is a fact—that the light was either red or

green. Neither witness, however, is permitted to testify that, “I think that the driver of the car should have been

going more slowly so that he would have time to avoid the accident.” That is an opinion. If the question is whether

the driver was negligent for going too fast for conditions, that is a question for the jury, and it does not need a lay

person’s opinion.

Expert testimony is an exception to the general rule that opinion testimony is not admissible evidence. Where

expert opinion testimony is to be used, the court acts as gatekeeper, to determine whether the testimony will be

helpful to the case. Expert testimony is governed by Fed. R. Civ. P. 702, which provides as follows:



the form of an opinion or otherwise if:

 

the evidence or to determine a fact in issue;

 

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

In 1923, the Supreme Court, in Frye v. U.S.

to demonstrate that his client was telling the truth through what he called a “systolic blood pressure test”—a form

of the modern day polygraph test—which had never before been used. The Court rejected the use of the systolic



psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery,

development, and experiments thus far made.” Id at 47. In so doing, the Court created the Frye Standard, or Frye

Test



Id.

The Frye Test was the standard for most of the 20th Century. Rule 702 came later. In 1993, based on Rule 702,

the Supreme Court established a new standard for expert testimony, in Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579 (1983). While Daubert itself is somewhat complicated in its elucidation of the standard, other

Elcock v. Kmart Corp., 233 F.3d 734, 45-46 (3rd Cir.

2000) (citing U.S. v. Downing, 753 F.2d 1224, 1238-41 (3rd Cir. 1985) and In re Paoli R.R. Yard PCB Litigation,

35 F.3d 717, 742 n.8 (3rd Cir. 1994)), phrased it thusly:

Daubert suggests several factors that a district court should take into account in evaluating whether a

Id. The factors that Daubert and this Court have already

declared important include:

(1) whether a method consists of a testable hypothesis; (2) whether the method has been subject

to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of

standards controlling the technique’s operation; (5) whether the method is generally accepted; (6)

the relationship of the technique to methods which have been established to be reliable; (7) the



uses to which the method has been put.

Id. at 742 n. 8 (citing Daubert and United States v. Downing, 753 F.2d 1224, 1238–41 (3d Cir.1985), as

the source of those non-exclusive factors). We will henceforth refer to these factors as the Daubert factors.

EXPERTS

§8.1 LITIGATING SEXUAL HARASSMENT & SEX DISCRIMINATION CASES 8-2

DaubertKumho Tire Co. v. Carmi-

chael 



“Neither is the evidentiary rationale that underlay the Court’s basic Daubert “gatekeeping” determina-



witnesses testimonial latitude unavailable to other witnesses on the “assumption that the expert’s opinion

will have a reliable basis in the knowledge and experience of his discipline.”

Id 148. Hence, the opportunity for witnesses to provide opinion testimony goes into any sphere where such a



and reliable.

The Daubert factors need not all be met; they need not all even be considered. The key is to use them to deter-

mine whether particular expertise is helpful and appropriate to the particular case. As the Court noted in Kuhho Tire:

   Id., at

593, 113 S.Ct. 2786. And Daubert adds that the gatekeeping inquiry must be “‘tied to the facts’” of a par-

ticular “case.” Id., at 591, 113 S.Ct. 2786 (quoting United States v. Downing, 753 F.2d 1224, 1242 (C.A.3

 

pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and

the subject of his testimony.” Brief for United States as Amicus Curiae 19. The conclusion, in our view,

is that we can neither rule out, nor rule in, for all cases and for all time the applicability of the factors

     

by kind of evidence. Too much depends upon the particular circumstances of the particular case at issue.

Kumho Tire, 526 U.S. at 150.

Practice Note: Some states still use the Frye standard

Daubert Frye standard, but a handful

of states (CA, FL. IL, NJ, NY, PA, WA) still use the Frye standard. See https://www.expertinstitute.com/

resources/insights/daubert-v-frye-a-state-by-state-comparison/. For example:

• Illinois: Daniels v. ArvinMeritor, Inc. 2019 IL App. (1st) 190170 (Ill. App. (1st Dist.) 2020).

• Maryland: Jonathan Phifer v. State of Maryland, 2020 WL 2992097, *7 n.6 (Court of Special Appeals,

Maryland, June 4, 2020).

• New York: Nemeth v. Brenntag North America, 123 N.Y.S.3d 12 (New York App. Div. 2020).

• Washington: State v. Murry, —P.3d— 2020 WL 3097321, *2 (Washington Ct. of Appeals, 2020)

(“Washington uses the test of Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) to limit

State v. Copeland, 130

Wash.2d 244, 255, 922 P.2d 1304 (1996)).”

The issue of experts is important because expert testimony may play a pivotal role in your case. Experts (e.g.,

medical professionals, HR professionals, EEO specialists, sociologists, economists) may be perceived by the jury as

-



You will also need to determine whether to have a psychologist/psychiatrist (whom you will designate as an

expert) evaluate your client.

§8.1.2 WHEN



   

   

identity of any consulting expert, i.e., one retained only to consult with you on the case, not to testify at trial.

Determine whether to have the employee evaluated by a reputable psychologist, psychiatrist or physician as soon