March 23, 2012
How do you get it in?
Federal Rules of Evidence Rule 702 allows “a witness qualified as an expert by knowledge, skill, experience, training, or education” if such testimony will “assist the trier of fact” in understanding evidence or determining a fact at issue.
That answer just leads to more questions, though.
How can you tell if a witness is “qualified as an expert?”
And who makes that determination?
Unless you’re in one of a handful of states that uses an older standard, the judge is the “gatekeeper” making that determination, and he or she assesses the qualifications of the witness as an expert using the Daubert test, named for the Supreme Court case from which it originated.
Daubert established that a witness will qualify as an expert if his or her opinions are the product of a reliable “scientific methodology.”
To determine whether a “scientific methodology” is reliable, judges look at five factors, also established by the Daubert ruling.
But if the witness you want to testify is an expert, but not necessarily a scientific one, does Daubert still apply?
That very question was answered by the Supreme Court when it decided Kumho Tire Co. v. Carmichael on March 23, 1999.
The final case of the “Daubert trilogy,” Kumho held that the Daubert test applied to testimony from all expert witnesses, not just scientific ones.
The dispute in Kumho arose from a tire blowout on a car driven by Patrick Carmichael, which caused the vehicle to overturn.
As a result of the accident, one passenger died and the others were injured.
The survivors and the decedent’s representative sued the tire’s maker and its distributor, claiming that the tire that failed was defective.
A significant part of their case rested on the depositions of a tire failure analyst, Dennis Carlson, Jr., who intended to testify that, in his expert opinion, a defect in the tire’s manufacture or design caused the blowout.
Kumho Tire moved to exclude Carlson’s testimony on the ground that his methodology failed the Daubert test.
The trial court granted the motion, finding insufficient indications of the reliability of Carlson’s methodology, and subsequently entered summary judgment for Kumho Tire.
After numerous appeals, the Supreme Court heard the case, and sided with Kumho Tire.
Citing the text of Rule 702, the Court noted that the Rule applied not only to those expert witnesses with “scientific” knowledge, but also “technical, or other specialized knowledge.”
Relying on that, the Court held that that the Daubert test’s application extends beyond scientific expert witnesses to all expert witnesses.
Applied to the facts of the Kumho case, the Court found that Carlson’s qualifications as an expert fell into this “technical or other specialized knowledge” category, and thus ruled that the trial court had properly applied the Daubert test (and summary judgment was affirmed).
In 2000, after the Kumho ruling, Congress amended Rule 702 in light of the Court’s Daubert rulings, adding several factors for consideration regarding the reliability of the testimony (specifically, letters (b) through (d) were added in 2000).
With that amendment, both statutory law and case law fully endorsed the use of the Daubert test to vet the testimony of expert witnesses in court.
And thanks to Kumho, Daubert is a critical consideration anytime an expert witness involved, which, considering the frequency of the use of expert witnesses at trial, is quite often.