Kumbo Tire Co. v. Carmichael: Daubert's Gatekeeping Method Expanded to Apply to All Expert Testimony - Jeanne Wiggins

• Publication year: 2000

Kumho Tire Co. v. Carmichael: Daubert's Gatekeeping Method Expanded To Apply To All Expert Testimony

In Kumho Tire Co. v. Carmichael,¹ the United States Supreme Court held that while the Daubert factors for determining the admissibility of expert testimony are neither determinative nor exhaustive, the gatekeeping function articulated in Daubert requires an examination of the reliability of all types of expert testimony and is not limited in application to scientific expert testimony.²

I. Factual Background

Plaintiffs, Patrick Carmichael, Luzviminda Carmichael, Carina Horn, Patrick Carmichael, Jr., Leona Carmichael, Shameela Carmichael, and Natimah Carmichael, were all injured in a single vehicle accident in Baldwin County, Alabama on July 6, 1993. Additionally, Janice Horn, another passenger, died from the injuries she received in this accident. The accident occurred when the driver and owner of the vehicle, Patrick Carmichael, lost control of the vehicle after the right rear tire blew out. The vehicle overturned, ejecting six of its eight occupants.³

Patrick Carmichael purchased the Ford Aerostar XL minivan on April 30, 1993 from a Dodge dealership in Washington state. The odometer at the time of sale registered 88,997 miles and had registered an additional 7011 miles at the time of the accident. The failed tire was a Hercules Superior XII Steel Belted Radial designed by defendant and manufactured in the Republic of South Korea in 1988. A visual examination of the tire revealed that it had been punctured by a nail or screw at some point and the remaining exterior holes had not been filled properly.⁴

Plaintiffs brought a diversity suit against Kumho Tire on October 20, 1993, claiming the tire that blew out was defective.⁵ Plaintiffs retained a tire failure analyst, Dennis Carlson,⁶ who intended to testify that in his opinion the blowout was caused by a defect in the manufacture or design of the tire.⁷ Carlson relied on some basic features of tire technology and design;⁸ however, defendants disputed his method of determining whether a defect or abuse caused the tire to blow out.⁹

During Carlson's visual examination of the tire, he concluded that the accident was caused when the tread of the tire separated from the inner steel belted carcass.¹⁰ Carlson determined that this separation could be caused from either a defect or overdeflection, a type of tire abuse.¹¹ Carlson noted that there are four physical indicators normally present on a tire when overdeflection is the cause of failure: "(1) greater tread wear on the shoulder than in the center of the tire; (2) sidewall deterioration or discoloration; (3) abnormal bead grooving on the tire; and (4) rim flange impressions."¹² According to Carlson's method, when he visually fails to find at least two of these physical elements present, he concludes the failure was not caused by overdeflection and, therefore, must have been caused by a manufacturing or design defect.¹³ Using this method Carlson determined there was insufficient evidence to indicate overdeflection and, therefore, concluded that the blowout must have been caused by a manufacturing or design defect.¹⁴

Defendant sought summary judgment from the district court, arguing under Daubert v. Merrell Dow Pharmaceuticals, Inc.¹⁵ that Carlson's testimony was inadmissible as expert testimony.¹⁶ The district court first noted that "Daubert imposed upon trial courts a sort of gatekeeper function in accordance with which they must 'ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.'"¹⁷ The district court then articulated the four Daubert factors as follows:

(1) whether the technique or theory used may be tested or refuted; (2) whether the technique or theory has been a subject of peer review or publication; (3) the known or potential rate of error of a technique; and (4) the degree of acceptance of a theory or technique within the relevant scientific community.¹⁸

Finally, the district court applied the four Daubert factors to the case, finding first that Carlson's method was not "susceptible to testing" in that the results were "subjective" and there was some degree of "uncertainty."¹⁹ The district court next found that there were no publications that "approved or otherwise discussed [Carlson's] techniques for tire failure analysis."²⁰ Applying the third factor, the district court found that the "potential error rate of the technique" could not be determined accurately with Carlson's method.²¹ Finally, in applying the fourth factor, the district court found that there was simply insufficient evidence submitted to draw the conclusion that Carlson's methodology is "generally accepted in the relevant scientific community."²² The district court concluded that these factors applied whether the evidence was scientific or technical in nature under the gatekeeping rationale of Daubert and that the factors set forth had not been met.²³ Therefore, the district court found the expert testimony inadmissible and granted defendants' motion for summary judgment.²⁴

Plaintiffs appealed, arguing the Daubert factors did not apply to the admissibility of Carlson's testimony because he was not a scientific expert.²⁵ The Eleventh Circuit agreed, noting that the Supreme Court in Daubert "explicitly limited its holding to cover only the 'scientific context.'"²⁶ The court explained that although "Daubert may suggest reliability issues foi district courts to consider . . . under Rule 702, 'the trial court's role as gatekeeper is not intended to serve as a replacement for the adversary system.'"²⁷ The court then described the difference between scientific and nonscientific evidence and found that Carlson's testimony was not scientific expert testimony because it relied primarily upon his experience in analyzing failed tires.²⁸ The Eleventh Circuit reversed and remanded the case for further proceedings, holding that the district court erred as a matter of law when it applied the Daubert factors to Carlson's testimony.²⁹

The United States Supreme Court granted certiorari to determine if and how Daubert applies to expert testimony that is not scientific in nature.³⁰ The Supreme Court reversed the Eleventh Circuit's holding that the Daubert factors apply only to the admissibility of scientific expert testimony.³¹ The Court held that the gatekeeping function as articulated in Daubert applies to all expert testimony, not just to scientific expert testimony. The Court explained that the "test of reliability is 'flexible,' and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case."³³ The Court noted that a district court has the same discretionary power under the law to decide "how to determine reliability as it enjoys in respect to its ultimate reliability determination."³⁴ Finally, the Court concluded that the district court acted within its discretion when it decided not to admit the expert testimony of the tire analyst.³⁵

II. Legal Background

A. Admissibility of Expert Testimony Under Frye v. United States In Frye v. United States,³⁶ the "general acceptance" test for the admissibility of novel scientific expert testimony was born.³⁷ Under the Frye test, proffered novel scientific evidence was admissible only if it was generally accepted within the relevant scientific community.³⁸ As the Court in Daubert pointed out, this was the sole criteria for admissibility under the Frye standard.³⁹ This test was adopted by a majority of jurisdictions to determine the admissibility of novel scientific expert testimony.⁴⁰ The Court of Appeals for the District of Columbia Circuit announced its decision in Frye in 1923 in a two-page opinion.⁴¹ The court examined the issue of whether a type of lie-detecting method was admissible in a criminal case.⁴² The court determined that the proffered evidence was inadmissible because it had not gained general acceptance within the relevant scientific community.⁴³

Commentators and courts alike have debated the application of Frye for decades. One advantage with the Frye rule was that it relieved courts of the duty to make an independent determination on the reliability of scientific evidence.⁴⁴ This, in turn, reduced the need for spending the court's time and attention on these rulings through hearings, and it permitted the court to leave the determination to the scientific community, which many felt was the proper place for the decision to be made.⁴⁵

However, many commentators have noted Frye's disadvantages. For example, the test tended to be inflexible because new scientific knowledge and technology that may be both relevant and reliable would be considered inadmissible if the scientific community had not yet widely accepted it.⁴⁶ Furthermore, the courts struggled to determine how to define the relevant scientific community, just what scope the term "general acceptance" included, whether the standard applied to both "the underlying principle and the technique applying it," and whether to apply Frye only to novel scientific evidence or to all scientific evidence.⁴⁷ While the Frye test stood dominant for decades, the debate raged on.⁴⁸

B. Admissibility of Expert Testimony After Enactment of Rule 702

The conflict among the circuits over application of the Frye test after the enactment of the Federal Rules of Evidence was indicative of the general confusion and growing disapproval of the test.⁴⁹ The enactment of Rule 702 of the Federal Rules of Evidence in 1975 did little to reduce the confusion concerning the proper test that should be applied.⁵⁰

First, the Federal Rules of Evidence did not codify Frye.⁵¹ In fact, the drafting history of Rule 702 does not give any guidance because it does not address Frye.⁵² Finally, the Federal Rules of Evidence as a whole "adopted a liberal approach toward admitting relevant evidence."⁵³ This led many commentators to the conclusion that Frye did not survive the...