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by J. Scott Janoe - Harvard Law School '99
On March 23, 1999 the United States Supreme Court once again weighed in on the gatekeeping question. In Kumho Tire Company, Ltd. v. Carmichael(1) the Court decided whether or not Daubert v. Merrell Dow Pharmaceuticals, Inc.(2) applies to the testimony of "engineers and other experts who are not scientists."(3) On this question the answer was a resounding "yes."(4) Additionally, the Court examined whether or not trial judges must examine all four of the so-called Daubert factors when ruling on admissibility.(5) To this the Court answered a resounding "no."(6)
Kumho Tire centered on a products liability claim brought against a tire manufacturer and distributor for injuries sustained when the right rear tire on a vehicle failed.(7) In order to prove that the tire was defective, the plaintiffs sought to introduce the testimony of a "tire failure analyst."(8) In response, the defendants moved to exclude the analyst's testimony on the grounds that his methodology failed Rule 702's reliability requirement.(9) The United States District Court for the Southern District of Alabama agreed that it should analyze the testimony in light of the four reliability factors enunciated in Daubert.(10) After conducting its inquiry, the court decided that all of the factors weighed against the reliability of the expert's methodology and granted the defendants' motion to exclude.(11) The plaintiffs moved for reconsideration arguing that the court's application of the Daubert factors was too "inflexible."(12) The District Court granted plaintiffs' motion for reconsideration.(13) On reconsideration the District Court agreed with the plaintiffs that Daubert should be applied more flexibly and that its four factors were simply illustrative.(14) Still, the court found the expert testimony to have "insufficient indications" of reliability and affirmed the earlier order to exclude along with the defendants' motion for summary judgment.(15)
On appeal, the Eleventh Circuit Court of Appeals reversed and reviewed de novo the District Court's decision to apply Daubert to the tire analyst's testimony. According to the Circuit Court, the Supreme Court had explicitly limited Daubert to cover only the "scientific context."(16) The Eleventh Circuit reasoned further that because the tire analyst was relying solely on his experience and not on any scientific expertise, his testimony fell outside the scope of Daubert.(17) Accordingly, the Circuit Court remanded for further "non-Daubert-type" consideration under Rule 702.(18) In response, Kumho Tire petitioned for certiorari asking the Court to determine "whether a trial court 'may' consider Daubert's specific 'factors' when determining the 'admissibility of an engineering expert's testimony.'"(19)
In examining this issue, the Court first turned to the question of whether Daubert applied to engineering and/or other forms of "non-scientific" testimony. The Court cited three reasons why Daubert did indeed apply to "non-scientific" expert testimony. First, the Court looked to the language of Federal Rule of Evidence 702(20) governing expert testimony and noted that the Rule makes no relevant distinction between "scientific" knowledge and "technical" or "other specialized" knowledge.(21) According to the Court, Daubert specified that it is the Rule's word "knowledge" and not its modifiers like "scientific" that "'establish a standard of evidentiary reliability.'"(22) Accordingly, the very language of Rule 702 indicates that the reliability standard applies to all areas of expertise within the Rule's scope.(23)
After analyzing the wording of Rule 702 the Court in Kumho Tire went on to argue that the evidentiary rationale underlying Daubert was not limited to "scientific" testimony. According to the Court, Daubert presumed a certain testimonial latitude under the Rules for all expert testimony:
Daubert pointed out that Federal Rules 702 and 703 grant expert witnesses testimonial latitude unavailable to other witnesses on the 'assumption that the expert's opinion will have a reliable basis in the knowledge and experience of his discipline.'(24)This peremptory analysis led the Court to assert that such latitude is applicable to all expert testimony, not just "scientific" testimony.
The Court's final argument in favor of a broad application of Daubert rests on the assertion that it would "prove difficult, if not impossible, for judges to administer evidentiary rules under which a gatekeeping obligation depended upon a distinction between 'scientific' knowledge and 'technical' or 'other specialized' knowledge."(25) Reasoning that some "non-scientific" disciplines, like engineering, are based on pure "scientific" knowledge, while some pure scientific theory is based on observations and measurements made by engineered machinery; the Court found that any conceptual efforts to distinguish such disciplines were unlikely to produce "clear legal lines capable of application in particular cases."(26) In the end, the Court seemed confident that restricting Daubert to "scientific" testimony was both unwise and impractical.
Having established that Daubert applied to all expert testimony, the Kumho Tire Court turned its attention to whether or not the "Daubert factors" were an exhaustive list of reliability criteria. According to the Court, trial judges may consider factors other than those listed in Daubert when performing their gatekeeping function.(27) Key to the Court's reasoning was Daubert's emphasis on the "flexibility" of the reliability inquiry. The Kumho Tire Court stressed that Daubert states clearly that its list of four reliability factors "do[es] not constitute 'a definitive checklist or test,'"(28) and that the gatekeeping inquiry "must be 'tied to the facts' of a particular 'case'."(29) Moreover, The Court ruled that not only was the Daubert list not exhaustive; but also that it was not necessary to apply all four factors in all situations:
Rather, we conclude that the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable. That is to say, a trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony.(30)With this leeway in mind, the Kumho Tire Court next addressed the Eleventh Circuit's decision to apply a de novo standard of review to the trial court's "more flexible" Daubert approach.
In General Electric Co. v. Joiner(31) the Supreme Court ruled that a Court of Appeals is to apply an "abuse-of-discretion" standard when it "'review[s] a trial court's decision to admit or exclude expert testimony.'"(32) The Kumho Tire Court expanded this ruling to include a trial court's decision on what factors to use in analyzing reliability.(33) According to the Court, such decisions fit squarely within the trial judge's discretion and should not be subject to de novo review.(34) This assertion is grounded in the Court's belief that a trial judge should be afforded the discretion to avoid unnecessary "reliability proceedings" and to concentrate on those reliability factors that he or she deems most applicable to the case at hand.(35) Insofar as the Eleventh Circuit failed to afford the trial court such discretion, Kumho Tire overruled the Circuit Court's decision.(36)
Ultimately, Kumho Tire expands the gatekeeping role envisioned in Daubert to include all areas of expertise under Rule 702. It reiterates Daubert's desire for flexibility in trial courts' decisions on both admissibility and the means of determining admissibility, and broadens the applicability of the abuse-of-discretion standard enunciated in Joiner.
S. Ct. 1167 (1999).
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