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by Daniel S. Fridman and J. Scott Janoe - Harvard Law School '99
If one accepts the proposition that the trial judge has a duty to exclude unreliable experts, a host of concerns inevitably follows. How is a trial judge to assess the scientific or technical adequacy of expert testimony if even a cursory understanding of the issues requires specialized training? Can anyone without such training fully understand the issues and come to a rational conclusion as to their validity? To what degree can the trial judge rely on the expert's own assertions about his or her qualifications? All of these concerns carry heavy weight for in many cases the trial judge is hardly a more qualified assessor of scientific credibility than the jury itself. In this introduction and the papers which follow it, we have laid out some possible answers to the myriad questions raised by judicial gatekeeping. This first paper attempts to establish a historical perspective on gatekeeping in Kentucky. The papers which follow it give a more generalized picture of the gatekeeping debate. Ultimately we hope that you find these materials helpful in formulating or fine tuning your own approach to science in the courts.
From Frye to Daubert:
Judicial Gatekeeping in the Federal Courts
With the adoption of the Federal Rules of Evidence in 1975, courts, scholars and practitioners alike began to question whether Frye would survive as the sole admissibility standard for expert testimony. Under the Federal Rules, judges were seemingly afforded more discretion in making admissibility determinations. Rule 104(a) assigns judges the responsibility of making a preliminary determination on whether to allow a given expert to testify. Rule 702 goes on to guide this decision by requiring the judge to determine whether the admission of such testimony will assist the trier of fact to understand evidence or determine a fact at issue. Finally, Rule 403 suggests that the judge may exclude evidence if its likely prejudicial effect outweighs its probative value. The question was then to what degree would the arguably conservative Frye general acceptance standard survive in the wake of the presumably more liberal admissibility framework embodied in the new Federal Rules of Evidence.
The U.S. Supreme Court endeavored to answer the question of Frye's continued viability in Daubert v. Merrell Dow Pharmaceuticals, Inc.(3) In Daubert the Court held that Rule 702 did in fact supersede the Frye standard and enumerated a new standard to instruct judges on how to act as judicial gatekeepers. This new approach consisted of a two-pronged analysis of the testimony centering on the testimony's reliability and relevance. In determining reliability the court must engage in a, "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts at issue."(4) In addition, when determining scientific reliability the trial judge should consider:
(1) whether the proffered knowledge can be or has been tested, (2) whether the theory or technique has been subjected to peer review and publication, (3) the known or potential rate of error, and (4) whether the theory or technique has gained general acceptance in the relevant scientific discipline.(5)This nonexhaustive list of indicia of reliability relegated the Frye standard to one of a handful of guidelines that may be employed in ruling on admissibility. In conjunction with the newly ordained relevancy prong, the reliability criteria form a substantially more robust framework with which to analyze given scientific testimony.
Kentucky's Rule of Evidence 702 is identical to Federal Rule 702, which the Supreme Court held superseded Frye. In addition, Kentucky has now embraced most of the analytical framework laid out in Daubert.(6)
Forty Years of "General Acceptance"
Notably, the year before the Perry decision's first mention of Frye, Kentucky all but rejected the Frye standard in favor of a Daubert-like relevancy test in Brown v. Commonwealth.(10) In Brown, the Kentucky Supreme Court admitted identification evidence based on a novel blood testing technique more rudimentary than modern DNA testing despite the fact that this procedure had not gained "general acceptance." Moreover, the opinion failed to contain any reference to Frye or prior Kentucky case law. Quoting a major critic of Frye, the court stated that "[a]ny relevant conclusions which are supported by a qualified expert witness should be received unless there are other reasons for exclusion."(11) This abrupt departure from prior case law has been characterized as an "aberration" by some scholars because it failed to mention Frye and had little impact on the law in this area.(12) It seems likely, however, that as a result of this extraordinary departure from precedent in Brown the Perry court felt compelled to mention Frye by name for the first time.
In 1992, the Kentucky Supreme Court expressly embraced Frye in Harris v. Commonwealth.(13) In Harris, the Court concluded that, "[i]n deciding whether to allow the admission of new, scientific evidence, this Court has required trial courts to follow the dictates of Frye v. United States.(14) But 1992 also promised to make this clear statement of Kentucky's adoption of Frye quite short-lived.
Frye in Question: The
Kentucky Rules of Evidence and Staggs
As discussed above, in its first chance to explore the implications of Rule 702, Harris v. Commonwealth, the Kentucky Supreme Court reaffirmed its allegiance to Frye without reference to the newly adopted rules. The very next year, however, the state Supreme Court in Staggs v. Commonwealth,(16) balked at deciding the issue of the continued viability of Frye because the case commenced prior to the enactment of the new Rules of Evidence. This case did provide clues to what direction judicial gatekeeping would soon go in Kentucky. For the first time the justices noted that it was appropriate to inquire whether the expert's technique or theory "is accepted as reliable for the purpose for which it is intended to be used at trial."(17) In addition, the methodology employed by the expert must be "reliable as relevant to an issue being tried."(18) Finally, the Court rested its exclusion of the proffered testimony on the grounds that it was "more prejudicial than probative" and therefore irrelevant.(19) Taken together, these references to standards other than simple "general acceptance" foreshadowed the Court's eventual embrace of Daubert.
Daubert in Kentucky: Mitchell
and its Progeny
[P]ursuant to KRE 702 and Daubert expert scientific testimony must be proffered to a trial court. The trial court judge must conduct a preliminary hearing on the matter utilizing the standards set forth in Daubert. On appeal, the standard of review is whether in deciding the admissibility of the evidence the trial judge abused his or her discretion.(21)Although this clear embrace of Daubert has been readily applied to criminal contexts, the state Supreme Court has yet to rule whether Daubert and Mitchell apply in civil cases.(22) As Daubert itself was a civil case it seems likely that this is simply a matter of the Kentucky Supreme Court not having received the proper case to make such as pronouncement. Still, Mitchell's applicability to civil cases remains an open question.
Although Kentucky courts have applied Daubert to many fields of expertise, in at least one instance, Collins v. Commonwealth,(23) the state Supreme Court has held that the Daubert analysis applies only to "novel scientific evidence," and not to "'basic' medical findings or research studies."(24) Collins involved a conviction for sexual abuse of a minor. At trial, the prosecution relied upon the testimony of the treating physician, "an expert on the physical aspects of child sexual abuse cases."(25) The expert testified that based upon her clinical experience and extensive medical research, the presence of the victim's intact hymen was consistent with the alleged sexual abuse. In ruling that this testimony was not deserving of Daubert scrutiny, the Kentucky Supreme Court noted that the physician's "examinations did not involve any novel scientific techniques or theories."(26) The studies relied on were simply "compilations of statistics derived from pelvic examinations of young females in various age groups," and involved "nothing of a scientific nature to trigger the necessity of applying the Daubert analysis."(27) This "novelty" requirement has not shown up in later cases and in fact, similar "non-scientific" medical testimony has been subject to Daubert scrutiny.(28)
In another bold interpretive move, Kentucky has been the first state to rule out sua sponte initiation of Daubert inquiries.(29) By defining the judge's gatekeeping role in such passive terms, Kentucky runs the risk of what one commentator calls "leaving the evidentiary gate open and unattended if no party objects."(30) It seems quite reasonable, however, for courts to rely upon the parties to initiate such inquiries as it has been made clear that Daubert is the Commonwealth's preferred standard. Regardless, practitioners should be on notice that they are responsible for requesting a Daubert inquiry.
In the end, it seems that Kentucky is still coming to grips with Daubert. The only thing for sure is that, "[t]he precise contours of Daubert and Rule 702 are still in formation."(31)
Joiner and the Future
of Judicial Gatekeeping
The Supreme Court reversed the Court of Appeals and noted that such a "particularly stringent" standard of review was improper in this context:
Thus, while the Federal Rules of Evidence allow district courts to admit a somewhat broader range of scientific testimony than would have been admissible under Frye, they leave in place the "gatekeeper" role of the trial judge in screening such evidence. A court of appeals applying "abuse of discretion" review to such rulings may not categorically distinguish between rulings allowing expert testimony and rulings which disallow it. We likewise reject respondent's argument that because the granting of summary judgment in this case was "outcome determinative," it should have been subject to a more searching standard of review. On a motion for summary judgment, disputed issues of fact are resolved against the moving party -- here, petitioners. But the question of admissibility of expert testimony is not such an issue of fact, and is reviewable under the abuse of discretion standard.(38)The circuit court's "particularly stringent," pro-admission standard was indeed short lived.
In concluding that the district court did not abuse its discretion in excluding the plaintiff's experts, the Supreme Court examined the adequacy of the expert testimony the plaintiff sought to introduce to prove causation. The plaintiff's experts relied heavily upon animal studies to establish proof of causation in humans. The Court found, however, that the plaintiff failed to establish enough of a foundation to support the admissibility of these studies:
Rather than explaining how and why the experts could have extrapolated their opinions from these seemingly far-removed animal studies, respondent chose "to proceed as if the only issue [was] whether animal studies can ever be a proper foundation for an expert's opinion." Of course, whether animal studies can ever be a proper foundation for an expert's opinion was not the issue. The issue was whether these experts' opinions were sufficiently supported by the animal studies on which they purported to rely. The studies were so dissimilar to the facts presented in this litigation that it was not an abuse of discretion for the District Court to have rejected the experts' reliance on them.(39)Finally, the Supreme Court went on to suggest that it was not an abuse of discretion for the district court to demand a closer relationship between the epidemiological studies offered by the plaintiffs and the opinions drawn from them by the experts:
A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered. See Turpin v. Merrell Dow Pharmaceuticals, Inc. 959 F.2d 1349, 1360 (CA 6), cert. denied, 506 U.S. 826, 121 L. Ed. 2d 47, 114 S. Ct. 84 (1992). That is what the District Court did here, and we hold that it did not abuse its discretion in so doing.(40)Upholding a judge's right to exclude given expert testimony on the basis of perceived analytical gaps in the science is an unprecedented broadening of the gatekeeper role. Such a ruling at first seems to run contrary to the "liberal thrust" of the Rules of Evidence as articulated in Daubert. It remains to be seen whether courts will be as deferential when judges exercise their discretion in favor of admissibility of arguably questionable scientific evidence. How Joiner will effect Kentucky and states like her that employ the abuse of discretion standard also remains to be seen.
F. 1013 (D.C. Cir. 1923).
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