The Daubert Challenge

A Historical Perspective
There is much discussion about the Daubert and Kumho Tire Supreme Court rulings as they relate to expert witness testimony. This series of articles has been prepared to provide a historical perspective on the evolution of this important ruling. In addition, the articles will explain the rulings generated during each phase of the evolution and what the end result, the Daubert Challenge means to the case you might be working.

Testimony by Experts as defined by Federal Rule 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, 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."

The Daubert Challenge is related to the judge's ability to act like a gatekeeper and prevent the expert's testimony from being admitted in court. If the expert's testimony is excluded, the attorney has no way to support his/her case. It is therefore Important that the attorney and his expert meet the challenge so that the expert's testimony is admitted.

The precursor of today's Daubert Challenge was a case in 1923 named Frye v. United States. The Frye case was about admission of a systolic blood deception test, which was a crude precursor to the polygraph machine. The Court ruled that for novel scientific evidence to be admissible, the expert testimony and techniques used to generate results must be generally accepted as reliable in the scientific community.

In Frye, the Court Ruled:
     "Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, 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."

The Frye "general acceptance" test had many problems. The terms were vague. Judges were allowed to admit testimony based on what they thought was credible and reliable. The test was deemed too rigid and inflexible. The result was that evidence was being excluded that should have been included. The Frye Test needed overhaul and thus, an attack on the Frye Test began. In 1975, New Federal Rules of Evidence were established. Many wanted to see the new Federal Rules used over the Frye test.

A Summary
In 1993, two Daubert children, Jason Daubert and Eric Shuller, and their parents were plaintiffs in a case where birth defects were alleged to be from the mother's ingestion of Bendectin (a prescription anti-nausea drug). Bendectin was manufactured and marketed by Merrell Dow Pharmaceuticals. The plaintiffs argued that Bendectin likely caused the birth defects.

The defense expert, Dr. Steven Lamm, was a physician and well-respected epidemiologist. He was a well-credentialed expert on the risks from exposure to various chemical substances.

Dr. Lamm stated he reviewed all the literature on Bendectin and human birth defects in more than 30 published studies over 130,000 patients. He indicated that no study had found Bendectin to be a human teratogen, which is a substance capable of causing malformations in fetuses. Based on his review, Dr. Lamm concluded that the maternal use of Bendectin during the first trimester of pregnancy had not been shown to be a risk factor for human birth defects.

The plaintiffs did not and do not contest this characterization of the public record. Instead, they responded with the testimony of eight experts of their own, each of who also possessed impressive credentials.

The eight well-credential experts concluded that Bendectin could cause birth defects. Their conclusions were based upon "in vivo" (live) animal studies that found a link between Bendectin and malformations; pharmacological studies of the chemical structure of Bendectin that purported to show similarities between the structure of the drug and that of other substances known to cause birth defects; and the re-analysis of previously published epidemiological (human statistical) studies.

The attack of the Frye Test had begun.

The Court's Ruling
The plaintiff's in the Daubert case countered Merrell Dow's expert testimony with the testimony of eight experts. The trial court ruled the evidence presented by the plaintiff's experts did not meet the general acceptance test for admission. The Appeals court agreed and cited the Frye ruling.

The Supreme Court reversed the decision, stating that the Federal Rules of Evidence superseded the Frye test. The Supreme Court stated "no common law of evidence remains." Nothing in the new federal rules "establishes 'general acceptance' as an absolute prerequisite to admissibility." They also said that the general acceptance requirement of the Frye test is at odds with the 'liberal thrust' of the Federal Rules and their general approach of relaxing the traditional barriers to opinion testimony.

Those in favor of the general acceptance test argued that the ruling would open the floodgates to unfounded and unreliable evidence. They were afraid that juries would be misled and confused by evidence that was not generally accepted in the scientific community. The Court addressed these concerns by levying the task of managing the admission of reliable scientific evidence on the trial judge. The Court was charged with the role of gatekeeper, allowing admission of reliable scientific evidence and excluding less reliable evidence.

The Supreme Court ruled that there were four non-exclusive factors to be used when evaluating the expert's testimony. They form the basis of The Daubert ruling regarding expert witness testimony. They are:

1. Whether the theory can be tested.
2. Whether the theory or technique has been subjected to peer review as well as publication.
3. The potential rate of error.
4. The existence and maintenance of standard's controlling the technique's operation.

• The Supreme Court was attempting to liberalize the ruling. However, the Daubert case actually "created a more stringent test for expert admissibility." After the Daubert ruling, the lower courts were inconsistently applying the ruling. Some courts very rigidly applied the ruling while others stated that Daubert only applied to scientists, saying it did not apply to engineers.
  
  In 1999, the Supreme Court addressed these issues in Kumho Tire v. Carmichael.
  
  Kumho Tire v Carmichael: A Summary
  Another step in the evolution of the Daubert Challenge came when another case strained the existing rules of expert testimony. This case, Kumho Tire v Carmichael, eventually expanded the rules to include the testimony of those who have "technical" and "other specialized" knowledge, i.e., the engineer.
  
  On July 6, 1993, Patrick Carmichael and seven family members were driving on an Alabama Interstate. The right rear tire of a minivan driven by Patrick Carmichael blew out. One passenger died and others were severely injured. In October 1993, the Carmichaels brought suit against the tire maker and its distributor, collectively referred to as Kumho Tire. The plaintiffs claimed the tire was defective. During the trial, the plaintiffs rested their case based partly on testimony of an expert, Dennis Carlson.
  
  Initially, the plaintiff's hired George Edwards, a tire expert who examined the tire remains. Based on his experience with tire failures, he concluded the blowout was the result of a defect in the tire's design or manufacture. Shortly before his deposition, he became too ill to testify and transferred the case to his employee, Dennis Carlson.
  
  Dennis Carlson's Testimony
  Dennis Carlson reviewed the case and concurred with George Edwards. During his deposition, Carlson outlined the process he used to determine the tire was defective. The Defendant moved to exclude Carlson's testimony, claiming it did not satisfy legal standards for scientific evidence set forth in Daubert v. Merrell Dow Pharmaceuticals.
  
  Carlson relied on certain features of tire technology that were not in dispute. A steel belted tire like the Carmichael's is made of a carcass containing many layers of flexible cords called plies along which are laid strips called belts. Steel wire loops called beads hold the cords together at the plies bottom edges. An outer layer called the tread encases the carcass and the entire tire is bound in rubber through application of heat and certain chemicals. The bead of the tire sits upon a bead seat, which is part of the wheel assembly. That assembly contains a rim flange, which extends over the bead and rests against the side of the tire. Carlson's testimony accepted certain background facts about the tire in question. He assumed before the blowout the tire had traveled far.
  
  The tire was made in 1988 and had been installed before the Carmichaels had bought the van in March 1993. The Carmichaels had driven the van approximately 7000 additional miles in the two months they had owned it. Carlson noted the tire's tread depth, which was 11/32 inch when new, had been worn to depths of 3/32 inch in some parts to nothing at all along others. He conceded the tire had two punctures, which had been inadequately repaired.
  
  Despite the tire's age and history, Carlson concluded that a defect in its manufacture or design caused the blowout. Carlson's conclusion rested on three premises:
  
  

1. A tire's carcass should stay bound to the inner side of the tread for a significant period of time after its tread depth has worn away
2. The tread of the tire at issue had separated from its inner steel-belted carcass prior to the accident
3. Its separation caused the blowout

Kumho Tire v Carmichael: The Expert’s Conclusion
Expert Carlson’s conclusion that the defect existed rested on certain propositions, several of which the defendants strongly disputed.

1. Carlson said that if a separation is not caused by a certain kind of tire misuse, called “over-deflection,” which consists of under-inflating the tire or causing it to carry too much weight, thereby generating heat that can undo the chemical tread/carcass bond, then, ordinarily it is a defect.
2. 
   
3. He said that if a tire has been subject to sufficient over-deflection to cause a separation, it should reveal certain physical symptoms or physical signs. These physical signs include:
   • (1) tread wear on the tire’s shoulder that is greater than the tread wear along the tire’s center,
   • (2) signs of a bead groove where the beads have been pushed too hard along the bead seat on the inside of the tire’s rim,
   • (3) sidewalls of the tire with physical signs of deterioration, such as discoloration
   • (4)and/or marks on the tire’s rim flange.
4. Carlson said that where he does not find at least two of the four physical signs just mentioned, he concludes that a manufacturing or design defect caused the separation.

Carlson inspected the tire and conceded that the tire, to a limited degree, showed greater wear on the shoulder than in the center, some signs of bead groove, some discoloration, a few marks on the rim flange and inadequately filled puncture holes which can also cause heat that might lead to separation. But in each case, he testified that the symptoms were not significant, and he explained why he believed they did not reveal over-deflection.

For example, the extra shoulder wear, he said, appeared primarily on one shoulder, whereas an over-deflected tire would reveal equally abnormal wear on both shoulders. Carlson concluded the tire did not bear at least two of the four over-deflection symptoms, nor was there any less obvious cause of separation, and since neither over-deflection nor the punctures caused the blowout, a defect must have done so.

In 1999, the Supreme Court addressed these issues in Kumho Tire v. Carmichael. The court indicated that the trial judge’s “gate keeping obligation” applies not only to scientific knowledge, but also to testimony based on “technical” and “other specialized” knowledge. In other words, Kumho Tire applies to the testimony of engineers.

The ruling did go on to state that the Court may consider one or more special factors mentioned in Daubert to determine testimony’s reliability, which is the test of reliability is flexible. Additionally, the Daubert list of reliability factors should not be exclusively or applied to all experts or in every case.