An Irreverent Look
At
Daubert
Copyright 2005, Rod Patterson, all rights reserved
Disclaimer
Historical case discussion and
hypothetical fact scenarios in this
presentation are provided as tools for
learning and study. Nothing in this
presentation may be be relied upon as
legal advice.
For legal advice concerning any issue
involving the presentation of expert
witness testimony, consult an
attorney in your jurisdiction.
Why “Irreverent”?
Why “Irreverent”?
Dateline: 1923
Frye v. The United States
Frye v. United States, 293 F. 1013, 1014 (DC Cir 1923).
“Just when a scientific
principle or discovery
crosses the line between
the experimental and
demonstrable stages is
difficult to define.”
Frye
“Somewhere in this twilight
zone the evidential force of
the principle must be
recognized . . . .”
Frye
“While courts will go a long
way in admitting expert
testimony deduced from a
well-recognized scientific
principle or discovery . . .”
Frye
“ . . . the thing from which
the deduction is made must
be sufficiently established
to have gained general
acceptance in the particular
field in which it belongs.”
Frye
The Rule of Frye:
“Expert testimony must
be sufficiently
established to have
gained general
acceptance in the
scientific community.”
Frye v. United States, 293 F. 1013, 1014 (DC Cir 1923).
Dateline: 1976
People v. Kelly
People v. Kelly , 59 P2d 1240 (Cal S Ct 1976).
Cal R. Evid 720
(a) A person is qualified to
testify as an expert if he has
special knowledge, skill,
experience, training, or
education to qualify him as an
expert on the subject to which
his testimony relates.
Cal R. Evid 720
(b) A witness’ special
knowledge, skill, experience,
training, or education may be
shown by any otherwise
admissible evidence, including
his own testimony.
More California Spin
“Expert testimony must be
sufficiently established to
have gained general
acceptance in the scientific
community.”
People v. Kelly , 59 P2d 1240 (Cal S Ct 1976).
Dateline: 1993
Daubert v. Merrell Dow
Daubert v. Merrell Dow Pharmaceuticals, 509 US 1979 (US S Ct 1993).
The Rule of Daubert
Expert testimony
must be
(1)
Reliable
(2) Relevant
Fed. R. Evidence 702
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.
Prior to 2000 amendment
Fed. R. Evidence 702
“IF”
1. the testimony is based upon sufficient facts
or data,
2. the testimony is the product of reliable
principles and methods, and
3. the witness has applied the principles and
methods reliably to the facts of the case.
Added by amendment, effective Dec 1, 2000
How California Differs
“The Daubert threshold
reliability test does not
apply in California.”
Lockheed Litigation Cases, 126 Cal App 4th 271 (2005).
How California Differs
“California distinguishes
between expert medical
opinion and scientific
evidence; the former is not
subject to the special
admissibility rule of KellyFrye.”
Roberti v. Andy’s Termite & Pest Control, 113 Cal App 4th 893 (2003).
The Texas Supreme Court:
“To say that the expert’s testimony is
some evidence simply because the
expert testified that the underlying
technique or methodology supporting
his or his opinion is generally accepted
by the scientific community is putting
the cart before the horse.”
“An expert’s bald assurance of validity
is not enough.”
“There must be objective, independent
validation of the expert’s methodology.”
Merrell Dowell Pharmaceuticals, Inc. v. Havner
953 SW2d 706 (Tex. 1997).
How California Differs
“Kelly-Frye applies to
cases involving novel
devices or processes,
not to expert medical
testimony.”
Roberti v. Andy’s Termite & Pest Control, 113 Cal App 4th 893 (2003).
Traditional Rules of Engagement
Defense attorneys take depositions to
obtain information.
Plaintiffs’ attorneys take depositions to
obtain admissions.
Scenario No. 1
• The “expert” is a general surgeon
who has not performed on open
abdominal surgery in more than
20 years.
• The issue is how to manage an
acute abdomen, from a nursing
and surgical point of view.
• The focus quickly turns from the
medical issue to the experience of
this individual.
Q.How did you learn enough to be an
expert about what goes on before
surgery?
Where did you get that
experience, please, sir?
A. In my years of training.
Q. Where?
A. Medical school. My residency.
Q.Tell me one single course where you
learned
how to conduct a nursing
assessment . . .where did you get that
experience, please, sir?
A. I don’t have training in nursing
assessment.
“Factorology”
Daubert Factors
• Can the theory be tested?
• Is the theory accepted?
• Has the theory been peer
reviewed?
• What is the rate of error?
• Does the theory depend upon
subjective interpretation of the
expert?
• Is the theory used outside of
litigation?
Can the theory be tested?
‘Scientific methodology
today is based on
generating hypotheses
and testing them to see if
they can be falsified;
indeed, this methodology
is what distinguishes
science from other fields
of human inquiry.’
125 L Ed 2d @ 483
Scenario Number 2
• Wrongful death case. 69 year
old patient dies in CABG surgery.
• Financial Expert opines 12 years
additional life expectancy.
• Cardiac surgeon testifies to 5
years additional life expectancy.
Q. Maybe you can tell me
whether or not there's
anything in the way of
scientific investigation that
can demonstrate that your
conclusions are reliable.
A.No. He died, so I can't predict -I can't demonstrate the reliability.
Is the theory accepted?
Q. Since you don’t have literature to
support what you say, maybe you
can tell me what you have to show that
your calculations and your so-called
model are based upon scientifically
valid reasoning and methodology or
have a reliable basis in the knowledge
and experience of your discipline.
A. Yes. I believe so. It's based on
judgment. Forecasts are always
based on judgment. We're allowed to
use our judgment making forecasts.
Q. What do you have that says that
your science is real science and not
something that you just made up?
A. You've asked me this question, and
I've answered it several times.
Q. No, the problem is you have not
answered it.
A. I don't know.
Q. Thank you.
A. Okay.
Q. Thank you. That's all I need.
Has the theory been peer
reviewed?
‘Submission to the
scrutiny of the scientific
community is a
component of "good
science," in part because
it increases the likelihood
that substantive flaws in
methodology will be
detected.’
125 L Ed 2d @ 483
What is the rate of error?
Does the theory depend upon
subjective interpretation?
The subject of the expert's
testimony must be "scientific
knowledge."
“Scientific" "implies a
grounding in the methods and
procedures of science" and
that the word "knowledge"
"connotes more than
subjective belief or
unsupported speculation.
125 L Ed 2d @ 487
Q. What I'm seeking to find is some
source material from literature in the
industry that will tell us that what you
have done is based upon careful,
scientific methods and procedures.
A. As I said --for a case-by -- on a
case-by-case basis, you can use
what is appropriate for a case-by-case
basis. That doesn't exist scientifically.
It's not going to say, For this type of
situation, here's how you do it.
It doesn't exist.
Is the theory used outside
of litigation?
Dueling Experts
Scenario Number 3
• Plaintiff hires a physician expert to
testify about wrongdoing of a
defendant-doctor, and a nurse
expert to testify about wrongdoing
of a defendant-hospital.
• Physician expert is unaware of the
opinions of nurse expert until
deposition.
• Defense attorney uses one expert
to discredit the other.
Q. Now, I want to ask you about this Nurse
Jones. Did you read her report today for
the first time?
A.
I did.
Q.
Why are you wincing?
A. I have a hard time in any malpractice
case with any of these – with many of
these opinions that come from RNs who
are professional experts.
Parting
Shots
“A lawyer writes
so that endless
others of his craft
can make a living
out of trying to
figure out just
what he said.”
Presented by
Rodney M. Patterson
Attorney, licensed in state
and federal courts in Texas
817-732-8200
www.rodpatterson.com
Rod@rodpatterson.com