Must submit expert report containing a complete statement of all opinions to be expressed and the basis and reasons for them.
Must also disclose qualifications including all publications, how much being paid, list of other cases where they testified during last 4 years (Rule 26(a)(2)).
Admissibility of Expert Testimony (through FRE 702)
SCOTUS held in Daubert that admissible scientific evidence must be…
Relevant
Does the evidence "fit the facts of the case"?
Reliable
Are the expert's conclusions derived from the scientific method?
Empirical testing: the theory or technique must be falsifiable, refutable, and testable.
Subjected to peer review and publication.
Known or potential error rate and the existence and maintenance of standards concerning its operation.
Whether the theory and technique is generally accepted by a relevant scientific community.
Scope broadened in Kuhmo Tire to extend Daubert to any expert testimony that requires "technical"/non-scientific knowledge.
Daubert test should be done at the trial court level since appellate court can only review testimony through abuse of discretion standard (Joiner)
**Full Expert Witnesses**
Issues to Discuss About Witnesses
Expense. Reports of $500 per hour
Access. Are there still “conspiracies of silence”? Certainly, experts appear to be readily available (plenty of web sites)
Overuse. Too many being involved.
Morality. Since experts are usually hired by the parties, is their testimony defensible?
Quality. Do good experts participate?
Types of Experts
The “Witness” Expert. There are people who are experts in the ordinary sense of the word who are involved in the case. Example: The doctor who treats an injured driver who then testifies about what he or she did to treat the patient. They are just witnesses and discovery proceeds normally.
The “Non-testifying” expert. Parties may retain experts to study a case or advise without designating them as experts who will testify. No discovery unless the other side can make a showing of “exceptional circumstances.”
The Testifying Expert. (See Admissibility below)
Discovery of Experts
Historically
Discovery was permitted only by way of interrogatory asking for a summary of the expert’s opinion
Perceived as somewhat like work-product
If more desired, in theory, you had to ask the court’s permission to depose the expert
In practice, given the importance of expert testimony, deposing experts was common
Modern Approach
Expert discovery is a matter of disclosure.
Must submit an expert report containing a complete statement of all opinions to be expressed and the basis and reasons for them
Must also disclose qualifications of witness including all publications, how much being paid, list of other cases where they testified during last 4 years (Rule 26(a)(2))
Current Rule Battle
The Rules Committee has proposed a change in Rule 26 to make the conversations and draft reports between the expert and hiring lawyer work product and thus usually not available to the other side and not subject to questioning during the expert's deposition.
Admissibility of Expert Testimony
Pre-Daubert, courts used the Frye test.
The Ninth Circuit COA held that expert testimony was admissible if the scientific techniques used by the expert are "generally accepted" by the relevant scientific community.
Identify the field of expertise then determine whether the evidence is generally accepted in that field.
To do this, courts looked to see whether the techniques relied upon had appeared in peer-reviewed publications.
The Frye test was criticized since it kept out valid, but novel, theories that had not yet won widespread acceptance.
SCOTUS makes changes its interpretation of FRE 702 in Daubert
FRE 702 says, "If scientific, technical, or other specialized knowledge will assist the trier of fact (jury) 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."
SCOTUS held that the rigid "general acceptance" requirement of Frye was at odds with the liberal thrust of the Federal Rules.
SCOTUS interpreted FRE702 broadly and made a new test that positioned judges as the "gatekeepers" of scientific testimony.
SCOTUS held in Daubert that admissible scientific evidence must be…
Relevant
Does the evidence "fit the facts of the case"?
For example, you may invite an astronomer to tell the jury if it had been a full moon on the night of a crime. However, the astronomer would not be allowed to testify if the fact that the moon was full was not relevant to the issue at hand in the trial.
Reliable
Are the expert's conclusions derived from the scientific method?
The Court offered "general observations" of whether proffered evidence was based on the scientific method, although the list was not intended to be used as an exhaustive checklist:
Empirical testing: the theory or technique must be falsifiable, refutable, and testable.
Subjected to peer review and publication.
Known or potential error rate and the existence and maintenance of standards concerning its operation.
Whether the theory and technique is generally accepted by a relevant scientific community.
Joiner made it clear that reviewing expert testimony is a trial court function.
Opponents of the Daubert test claim that it will create an expert "free-for-all" which will confuse juries with "pseudoscientific assertions"
Cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are appropriate and sufficient ways to keep experts from having too much power in the courtroom.
Also, as an additional check, a judge can make a JMOL or summary judgment if he feels that no reasonable jury could find for the side presenting the expert testimony.
Courts can retain their own experts to help in determining what evidence is reliable.
Daubert can be interpreted in two divergent ways.
Some courts hold that Daubert says that the lower courts should be more careful about what testimony they admit (form panels of experts to help in deciding).
Some courts hold that Daubert says that admission of expert testimony is encouraged and that it is up to defendants to attack the evidence.
SCOTUS decided in Kuhmo Tire v. Carmichael that the Daubert test was not limited to scientific experts, but applied to all experts where technical knowledge is used.
A recent revision in the FRE provides that an expert's opinion is admissible if…
Testimony is based upon sufficient facts or data,
The testimony is the product of reliable principles and methods, and
The witness has applied the principles and methods reliably to the facts of the case
