JUDICIAL GATEKEEPING IN KENTUCKY

Introduction
     Expert witnesses have become fixtures in today's courts. From fiber comparisons to economic projections to psychiatric evaluations, the range of offered expertise covers the span of human knowledge. Hardly a case of any consequence goes to trial without expert testimony of some kind. With such widespread use of expert testimony comes the inevitable question: what is the trial judge's role in overseeing the testimony of expert witnesses? Unlike lay witnesses, whose testimony a jury can evaluate based on their own common sense and experience, expert witnesses offer conclusions based on practices and knowledge beyond the ken of the average juror. As a consequence, testimony by unpoliced expert witnesses can have a potentially prejudicial effect on jurors, who may be inclined to believe the experts solely because of their "expert status." How is the trial judge to know whether the expert is merely speculating, or whether the evidence on which the expert bases his or her conclusions is sufficient to support the conclusion? Judges certainly prevent lay witnesses from speculating and are expected to exclude the testimony of a witness offering wholly speculative evidence. Why should this mandate be any different when the witness purports to be an expert?

     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
     In 1923, the D.C. Circuit announced its landmark decision regarding the admissibility of expert opinion testimony on novel scientific procedures in Frye v. United States.⁽¹⁾ In Frye, the defendant attempted to show his innocence by proffering the results of a lie detector test that purportedly demonstrated that he was telling the truth when he denied killing the victim. The court ruled that the evidence was inadmissible because the scientific principles upon which the procedure was based were not, "sufficiently established to have gained general acceptance in the particular field in which it belongs.⁽²⁾" This so-called Frye general acceptance test remained the standard employed in both federal courts and state courts around the country for years to come.

     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⁾

     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" in Kentucky
     In 1940 Kentucky began to follow the "general acceptance" test as described in Frye.⁽⁷⁾ Interestingly, although Kentucky was indeed applying the Frye principles of "general acceptance," these early opinions did not claim to have adopted the Frye decision, and in fact, made no mention of Frye's existence at all.⁽⁸⁾ It was not until 1983 in Perry v. Commonwealth⁽⁹⁾ that the Kentucky Supreme Court finally specifically cited Frye to support its use of the "general acceptance" test. 

     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
     With the adoption of the Kentucky Rules of Evidence in 1992, the continued validity of the "general acceptance" standard seemed in question. Kentucky Rule of Evidence 702 governing the admissibility of expert testimony mirrors its Federal counterpart and makes no mention of "general acceptance" or the Frye standard. Although the Commentary to Kentucky Rule of Evidence 702 indicates that the Rule is identical to the law which had existed in Kentucky to date (i.e. "general acceptance"), the Rule's silence seems to have set the stage for a repudiation of the Frye standard.⁽¹⁵⁾

     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
     In 1995, the Supreme Court of Kentucky adopted Daubert, at least for criminal cases, in Mitchell v. Commonwealth.⁽²⁰⁾ According to the Mitchell court their adoption of Daubert meant in summary that:

[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 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
     While Kentucky and other states were attempting to address how Daubert related to their respective state jurisprudence, the U.S. Supreme Court was busy attempting to clarify its holding in Daubert. Recently, in General Electric Co. v. Joiner⁽³²⁾ the U.S. Supreme Court determined that the "abuse of discretion" standard is the proper standard of review for a trial court's decision to admit or exclude expert testimony under Daubert. In Joiner an electrician sued the manufacturers of a coolant used in electrical transformers which he occasionally came into contact with when repairing power equipment. He alleged that although he was a smoker with a history of lung cancer in his family, his exposure to the PCBs, furans, and dioxins in the coolant "promoted" his development of small cell lung cancer.⁽³³⁾ The defense removed the case to federal court and moved for summary judgment based partly on the contention that, "there was no admissible scientific evidence that PCBs promoted Joiner's cancer."⁽³⁴⁾ The district court granted summary judgment on the basis that, "the testimony of Joiner's experts had failed to show that there was a link between exposure to PCBs and small cell lung cancer."⁽³⁵⁾ They further went on to conclude that the testimony of Joiner's experts did not rise above subjective belief or unsupported speculation, and therefore, should not be admitted into evidence.⁽³⁶⁾ The Court of Appeals for the Eleventh Circuit reversed the district court's holding and reasoned that, "because the Federal Rules of Evidence governing expert testimony display a preference for admissibility, we apply a particularly stringent standard of review to the trial judge's exclusion of expert testimony."⁽³⁷⁾

     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⁾

     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⁾

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⁾

1. 293 F. 1013 (D.C. Cir. 1923).
2. Id. at 1014.
3. 113 S. Ct. 2786 (1993).
4. Id. at 2796.
5. See id. at 2796-7.
6. Fed. R. Evid. 702 (1998) and KRE 702 (1998) are identical and read: "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."
7. Shelton v. Commonwealth, 134 S.W.2d 653 (Ky. 1940) (applying Frye principles to determine the admissibility of fingerprint identification analysis).
8. See, e.g., Dugan v. Commonwealth, 333 S.W.2d 755 (Ky. 1960) (applying Frye principles to decide the admissibility of the results of a truth serum test); Conley v. Commonwealth, 382 S.W.2d 865 (Ky. 1964) (applying Frye principles to refuse to admit operator testimony regarding the results of a lie-detector test); Honeycutt v. Commonwealth, 408 S.W.2d 421 (Ky. 1966) (applying Frye principles to admit radar detector evidence).
9. 652 S.W.2d 655 (Ky. 1983) (citing Frye to support admission of expert testimony evidence of paternity based on a blood grouping test).
10. 639 S.W.2d 758 (Ky. 1982), cert. denied, 460 U.S. 1037 (1983).
11. Id. at 760.
12. Robert Lawson, Kentucky Evidence Law, § 6.15, at 300 (4th ed. 1992).
13. 846 S.W.2d 678 (Ky. 1992).
14. Id. at 681.
15. Joan Brady, Expert Testimony in Kentucky: Think Fast - Today's Standard May Change Tomorrow, 25 NKYLR 333, 338 (1998).
16. 877 S.W.2d 604, 605 (Ky. 1993) (stating that because the case was tried prior to the effective date of Kentucky's Rule of Evidence 702, the court would rely on the "pre-KRE rule" of Frye).
17. Id. at 606; see also Brady at 339.
18. Id.
19. Id.
20. 908 S.W.2d 100, 101 (Ky. 1995).
21. Id. at 102.
22. See Brady at 354.
23. 951 S.W.2d 569, 571 (Ky. 1997).
24. See Brady at 357.
25. See Collins, 951 S.W.2d at 571.
26. Id. at 575.
27. Id.
28. See Stringer v. Commonwealth, 956 S.W.2d 883 (Ky. 1997) (holding Daubert applicable to testimony regarding physical examination of rape victim).
29. See Commonwealth v. Petrey, 945 S.W.2d 417, 419 (Ky. 1997) ("[I]t is the duty a party against whom [expert testimony] is offered to object to the introduction and request a pretrial hearing, and thus give the trial judge an opportunity to determine whether the evidence should or should not be admitted.").
30. Brady at 359.
31. Newkirk v. Commonwealth, 937 S.W.2d 640, 695 (Ky. 1997).
32. 118 S. Ct. 512 (1997).
33. See id. at 516.
34. Id.
35. Id.
36. See id. citing General Electric Co. v. Joiner, 865 F. Supp., 1310, 1326 (N.D. Ga. 1994).
37. General Electric Co. v. Joiner, 78 F.3d 524, 529 (11th Cir. 1996) (emphasis added).
38. Joiner, 118 S. Ct. at 517 (citations omitted)..
39. Id. at 518 (citations omitted).
40. Id. at 519.