by Cathryn M. Little of Little & Little, PLLC

Counsel for the North Carolina Chapter of the IAAI

By now, everyone should be, or should become, familiar with the decision of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (U.S. Cal. Jun 28, 1993). In Daubert, the Supreme Court focused upon the admissibility of scientific expert testimony and held that Rule 702, Federal Rules of Evidence, imposes a special obligation upon a trial judge to ensure that any and all scientific testimony is not only relevant, but reliable. Rule 702 provides, "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."

Daubert discussed four specific factors which a trial court may consider in its gate-keeping determination regarding the admissibility of scientific testimony, some or all of which might prove helpful in determining the reliability of a particular scientific "theory or technique," including: 1) whether a "theory or technique ... can be (and has been) tested;" 2) whether it "has been subjected to peer review and publication;" 3) in respect to a particular technique, the "known or potential rate of error" and the existence or maintenance of "standards controlling the technique's operation;" and 4) whether the theory or technique enjoys "general acceptance" within a "relevant scientific community."

The only published 1999 federal court case citing Daubert is Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (U.S. Ala. 1999). In Kumho Tire, the plaintiffs brought a products liability action against a tire manufacturer and tire distributor for injuries sustained when a right rear tire on a vehicle failed. The United States District Court for the Southern District of Alabama granted summary judgment for defendants, and plaintiffs appealed. The Court of Appeals for the Eleventh Circuit, 131 F.3d 1433, reversed and remanded.

Upon application for writ of certiorari to the United States Supreme Court, the Kumho Tire case focused on how Daubert applies to the testimony of engineers and other experts who are not scientists. The initial question before the Supreme Court was whether the basic gate-keeping obligation of Daubert applies only to scientific testimony or to all expert testimony. In an opinion delivered through Justice Breyer, the Supreme Court concluded that Daubert's holding setting forth the trial judge's general gate-keeping obligation applies not only to testimony based on scientific knowledge, but also to testimony based on technical and other specialized knowledge. Rule 702 establishes a standard of evidentiary reliability and requires a valid connection to the pertinent inquiry as a precondition to admissibility. Where such testimony's factual basis, data, principles, methods, or their application are called sufficiently into question, the trial judge must determine whether the testimony has a reliable basis in the knowledge and experience of the relevant discipline. Kumho Tire, 119 S.Ct. at 1175, citing Daubert, 509 U.S. at 592.

The Supreme Court in Kumho Tire concluded that in determining whether particular expert testimony is reliable, the trial court should consider the specific Daubert factors where they are reasonable measures of reliability and when doing so will help to determine the reliability of the testimony. Those factors may or may not be pertinent in assessing reliability, depending upon the nature of the issue, the expert's particular expertise, and the subject of his testimony. Some of those factors may be helpful in evaluating the reliability even of experience-based expert testimony.

However, the Supreme Court reiterated in Kumho Tire that the test of reliability is "flexible," and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts, nor in every case. The Supreme Court concluded that the trial judge must have considerable leeway in deciding in a particular case how the court will go about determining whether particular expert testimony is reliable. The law grants a district court the same broad latitude in deciding how to determine reliability as it enjoys in respect to its ultimate determination of reliability.

After applying the foregoing standards, the Supreme Court in Kumho Tire found that the District Court's decision not to admit an expert's testimony was within its discretion and therefore lawful. The Supreme Court reversed the decision of the Eleventh Circuit Court of Appeals, thus upholding the summary judgment which had been entered in favor of defendants. The Supreme Court found that the District Court did not question the expert's qualifications, but excluded his testimony because it initially doubted his methodology and then found it unreliable after examining the transcript in some detail and considering respondents' defense of it. The Supreme Court found that the doubts that triggered the court's initial inquiry were reasonable, as was the court's ultimate conclusion that the expert could not reliably determine the cause of the failure of the tire at issue. The Supreme Court also found no indication in the record that other experts in the industry use the expert's particular approach or that tire experts normally make the very fine distinctions necessary to support his conclusions, nor are there references to articles or papers that validate his approach. The court ultimately based its decision upon the expert's failure to satisfy either Daubert's factors or any other set of reasonable reliability criteria.

As of the date of this writing on 2/26/00, the only case yet reported in the year 2000 in a Westlaw search for federal and North Carolina decisions citing Daubert is Weisgram v. Marley Co., ___ S.Ct. ___ , 2000 WL 196662 (U.S. Feb 22, 2000)(As of the date of this writing, the case was only published four days ago, so a complete cite is not yet available).

In Weisgram, after Bonnie Weisgram died of carbon monoxide poisoning during a fire in her home, the decedent's son brought a wrongful death action against the manufacturer of an allegedly defective baseboard heater, which was located inside the door to the home. The United States District Court for the District of North Dakota entered judgment for the son based upon a jury verdict in his favor, and denied the manufacturer's motion for judgment as a matter of law or for a new trial. The Court of Appeals for the Eighth Circuit, 169 F.3d 514, vacated the judgment, even though there had been a jury verdict in the son's favor, and directed entry of judgment as a matter of law for the manufacturer. On petition for writ of certiorari, the United States Supreme Court affirmed, and held that: 1) upon determining that the verdict cannot be sustained due to error in admission of evidence, the Court of Appeals may direct entry of judgment as a matter of law for defendant even though there was a jury verdict in favor of plaintiff; and 2) the court did not abuse its discretion in directing entry of judgment for the manufacturer.

At the trial level in the Weisgram case, the evidence showed that firefighters arrived at the home on December 30, 1993, to discover flames around the front entrance. Upon entering the home, they found Bonnie Weisgram in an upstairs bathroom, dead of carbon monoxide poisoning. The plaintiff introduced the testimony of three witnesses, proffered as experts, in an endeavor to prove the alleged heater defect and its causal connection to the fire. The District Court overruled defendant's objections that this testimony was unreliable and therefore inadmissible under Federal Rule of Evidence 702 as elucidated by Daubert. At the close of plaintiff's evidence, and again at the close of all the evidence, defendant unsuccessfully moved under Rule 50(a), Federal Rules of Civil Procedure, for judgment as a matter of law on the ground that plaintiff had failed to meet his burden of proof on the issues of defect and causation. The jury returned a verdict for plaintiff. Defendant again requested judgment as a matter of law, and additionally requested, in the alternative, a new trial, pursuant to Rules 50 and 59. In post-trial motions, defendant reasserted that the expert testimony essential to prove plaintiff's case was unreliable and therefore inadmissible. The District Court denied the motions and entered judgment for plaintiff.

On appeal to the Court of Appeals for the Eighth Circuit, the defendant in Weisgram argued that the expert testimony plaintiff introduced was unreliable, and therefore inadmissible under the analysis required by Daubert. The Eighth Circuit first examined the testimony of plaintiff's expert witnesses, the sole evidence supporting plaintiff's product defect charge. Concluding that the testimony was speculative and not shown to be scientifically sound, the appellate majority found the expert evidence incompetent to prove plaintiff's case. 169 F.3d 514, 517 (1999). The court then considered the remaining evidence in the light most favorable to plaintiff, found it insufficient to support the jury verdict, and directed judgment as a matter of law for defendant. Although recognizing its discretion to remand for a new trial under Rule 50(d), the court rejected any contention that it was required to do so, stating that this was not a close case, plaintiff had a fair opportunity to prove his strict liability claim, but had failed to do so, and there was no reason to give plaintiff a second chance.

On higher appeal of the Weisgram case through a petition for writ of certiorari to the United States Supreme Court, the Supreme Court agreed to decide only the issue of the authority of a court of appeals to direct the entry of judgment as a matter of law, and accordingly accepted as final the decision of the Eighth Circuit holding the testimony of Weisgram's experts unreliable and therefore inadmissible under Federal Rule of Evidence 702, as explicated in Daubert. The Supreme Court also accepted as final the Eighth Circuit's determination that the remaining evidence was insufficient to make a submissible case for plaintiff under state law.

On certiorari review, the Supreme Court in Weisgram determined that the authority of courts of appeals to direct the entry of judgment as a matter of law extends to cases such as this in which, on the appellate court's excision of erroneously admitted testimony, there remains insufficient evidence to support the jury's verdict. The Supreme Court agreed that, shorn of the erroneously admitted expert testimony, the record evidence was insufficient to justify a verdict for the plaintiff.

Through an opinion delivered by Justice Ginsberg, the Supreme Court in Weisgram explained that since its decisions in Daubert, parties relying on expert evidence have had notice of the exacting standards of reliability that such evidence must meet, citing Daubert and Kumho Tire. The Supreme Court found it implausible to suggest, post-Daubert, that parties would initially present less than their best expert evidence in the expectation of a second chance in the event that their first try might fail. The Supreme Court therefore rejected plaintiff's argument that allowing courts of appeals to direct entry of judgment for defendants will punish plaintiffs who could have shored up their cases by other means had they known their expert testimony would be found inadmissible. Instead, the Supreme Court pointed out that plaintiff was on notice every step of the way that defendant was challenging plaintiff's experts, but made no attempt to add or substitute other evidence. Facing the Eighth Circuit's determination that the properly admitted evidence was insufficient to support the verdict, plaintiff offered no specific grounds for a new trial. The Supreme Court therefore affirmed, finding that the Eighth Circuit did not abuse its discretion by directing entry of judgment for defendant instead of returning the case to the District Court for further proceedings.

The Supreme Court's decision in Weisgram highlights once again the need for all cases involving scientific expert testimony to meet the Daubert tests of relevancy and reliability in order to be admissible under Rule 702. For failure to do so, the stakes can be irreversibly high, as shown by the Weisgram plaintiff's initially being successful in obtaining a jury verdict in his favor, and subsequently losing everything, with no second chance for a new trial, all due to the plaintiff's failure to meet the Daubert requirements of relevancy and reliability.