Supreme Court clarifies expert testimony rules.

The U.S. Supreme Court has taken yet another look at the use of expert witnesses under Federal Rule of Evidence 702. (Kumho Tire Co. v. Carmichael, No. 97-1709, 1999 WL 152455 (U.S. Mar. 23, 1999).)

The result of the decision is that admissibility in federal court will depend even more on district judges in particular cases than on any bright lines from the justices.

The Carmichael family brought this products liability action against the maker of a tire that blew out, causing their mini-van to go out of control. One person was killed and seven injured in the accident.

The plaintiff's expert would have testified, based on his examination of the tire, that a manufacturing or design defect caused the failure. The trial judge, finding that the testimony did not meet the four factors the Supreme Court listed in Daubert v. Merrell Dow Pharmaceuticals, Inc. --testability, publication and peer review, known error rate, and general acceptance in the scientific community--ruled it inadmissible. (509 U.S. 579 (1993).)

The Eleventh Circuit Court of Appeals reversed, holding that Daubert does not apply to testimony that is based on the expert's personal experience rather than on scientific knowledge.

The Supreme Court reversed. Justice Stephen Breyer, writing for the majority, addressed three issues, clarifying the Daubert decision. First, the Court made it clear that the trial judge's "gatekeeping" role to ensure the reliability of expert testimony applies to all experts, whether they rely on experience or scientific knowledge.

Second, the Court rejected the defendant's argument that the four factors apply in all cases. Those factors "may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony," Breyer wrote. The judge's role is simply to make certain that an expert witness "employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." And appellate courts must give trial judges "considerable leeway" in making this determination.

Breyer's third point addressed complaints raised by several amici, including ATLA, that defendants have abused Daubert by demanding full-blown Daubert hearings, delaying the trial and imposing considerable expense on plaintiffs, without showing good cause to doubt the reliability of proposed witnesses.

The Court noted that trial judges may order "appropriate proceedings in the less usual or more complex cases where cause for questioning the expert's reliability arises." However, the Court emphasized, the judge has the discretion to avoid unnecessary reliability proceedings "in ordinary cases where the reliability of an expert's methods is properly taken for granted."

Examining the facts of this case, the majority concluded that the district court had not abused its broad discretion in excluding the plaintiffs expert.

Justice John Paul Stevens dissented in part, stating his view that the Court should have remanded to the Eleventh Circuit to apply the Court's ruling to the facts of the Carmichaels' case.