Experts

• Author: Aaron B. Maduff
• Pages: 365-380

EXPERTS

15-1 LITIGATING SEXUAL HARASSMENT & SEX DISCRIMINATION CASES §15.1

CHAPTER 15: EXPERTS

§15.1 TASK: DETERMINE WHETHER TO RETAIN EXPERTS

§15.1.1 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. 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 what their testimony is about is a disputed fact—that the light was

either red or green. Neither witness, however, is permitted to testify that, “I think 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, considering whether it will be helpful to the

case. Expert testimony is ruled 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. However, Fed. R. Civ. P. 702 came later. In 1993,

based on Fed. R. Civ. P. 702 which then existed, the Supreme Court of the United States established a new standard

for expert testimony in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1983). While Daubert itself



Circuit in 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

§15.1 LITIGATING SEXUAL HARASSMENT & SEX DISCRIMINATION CASES 15-2

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

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

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

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

Daubert pointed out that Federal Rules 702 and 703 grant expert wit-

nesses 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 wit-

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

helpful, 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:

Daubert  

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



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

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

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

§15.1.2 WHEN

     

-



some generic medication for stress, because she told him she was under a lot of pressure at home, do not spend

your client’s money on an expert who will testify that she has no condition found in the DSM IV.

     

claims, re-evaluate your need for an expert.