Vol. 11, No. 1, Pg. 14. The Gatekeepers' Discretion: Flexible Standards on Admissibility of Expert Evidence in Wake of Kumho.

• Author: By William H. Latham

South Carolina Lawyer

1999.

Vol. 11, No. 1, Pg. 14.

The Gatekeepers' Discretion: Flexible Standards on Admissibility of Expert Evidence in Wake of Kumho

14The "Gatekeepers' Discretion:" Flexible Standards on Admissibility of Expert Evidence in Wake of KumhoBy William H. LathamIn the seminal case of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the U.S. Supreme Court laid out what was generally understood to be the analysis federal district courts should apply when faced with objections on the reliability of scientific expert testimony. Because the testimony at issue in Daubert was clearly scientific, disagreement had developed among the lower courts on whether the Daubert analysis also applied to technical or non-scientific expert testimony.

In a sense, the Supreme Court responded in the affirmative in its recent decision Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999). However, in a surprise to many, the Court explained that the Daubert factors were not mandatory considerations, but merely suggestions intended to be "helpful" to the trial judge.c

In the final analysis, it is left to the district court (subject to an abuse of discretion standard) to determine the relevant factors in assessing an expert's reliability in a particular case. These factors may or may not be the same as those articulated in Daubert. In other words, there are no hard and fast formula to be applied by the district courts when conducting their reliability analysis.

Daubert

The starting point for any discussion of the admissibility of expert testimony is Federal Rule of Evidence 702 as interpreted in Daubert. While Daubert specifically addressed the admissibility of scientific expert testimony, Rule 702 sets forth the standard for admissibility of all expert evidence regardless of its nature:

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. Fed. R. Evid. 702 (emphasis added); see also Fed. R. Evid. 703 (imposing requirements on opinion testimony by all expert witnesses); Fed. R. Evid. 104(a) (hearing procedure applicable to all experts).

Under the plain terms of Rule 702, all expert witnesses must be "qualified," must base their testimony on "knowledge" and must offer testimony that "assist[s] the trier of fact."

In Daubert, the Supreme Court explained that a trial judge's "gatekeeping responsibility" under Rule 702 includes ensuring that "any and all" scientific testimony or evidence submitted is "not only relevant, but reliable."Daubert, 509 U.S. at 589 (emphasis added). The Court derived this obligation from the language of Rule 702, which demands that an expert

16 opinion must be founded upon "knowledge." "[T]he word 'knowledge,'" the Court explained, "notes more than a subjective belief or unsupported speculation" and signifies "any body of known facts or . . . any body of ideas inferred from such facts or accepted as truth on good grounds." Id. at 590 (emphasis added) (internal quotations omitted).

The Court also found support for the reliability requirement in Rule 703, which regulates the "bases of opinion testimony by experts." Under Rule 703, an expert forming an opinion may rely on "facts or...