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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 Ohio. 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.
Frye: Ohio's First Approach
The 1980 Ohio Rules of Evidence:
Frye Codified or Supplanted?
Immediately following the promulgation of the Ohio Rules, the state supreme court seemed content to adhere to a general acceptance approach to admissibility. In State v. Thomas(13) the Ohio Supreme Court noted without reference to Rule 702 that expert testimony regarding "battered woman syndrome" was "inadmissible because it is not distinctly related to some science, profession or occupations so as to be beyond the ken of the average lay person. Furthermore, no general acceptance of the expert's particular methodology has been established."(14) A year later in State v. Williams(15) the Ohio Court of Appeals interpreted Rule 702 as consistent with Frye by stating that "new scientific tests when shown to be relevant and to be generally accepted by the scientific community ought to be admitted into evidence. This is certainly in line with the Ohio Rules of Evidence. . . ."(16) Under Williams, general acceptance would retain its validity in Ohio's courts for at least another six years.
In 1988 the Ohio Supreme Court once again called into question its long-standing acceptance of Frye. While refusing to adopt the Frye test for determining the admissibility of hypnotically refreshed memory testimony, the court in State v. Johnston(17) stated that "[i]t has been persuasively argued that the Frye test was silently abolished by the adoption of the Federal Rules of Evidence."(18) Instead of general acceptance the Johnston court recommended that hypnotically refreshed testimony should be scrutinized by trial courts at a pretrial hearing using a "'totality of the circumstances' test to determine the reliability of the proposed testimony."(19) While this reliability-based inquiry presaged Daubert and suggested that Ohio had finally eschewed Frye, any reports of general acceptance's death were greatly exaggerated.
In State v. Koss(20) the Ohio Supreme Court revisited the issue of whether "battered woman syndrome" testimony should be admissible.(21) To start, the Koss court noted that in Thomas the court had found that at that time "no general acceptance of the expert's particular methodology had been established."(22) The Koss court reasoned, however, that since the time when Thomas was handed down, "battered woman syndrome" had gained significant credibility in the scientific community such that it might "assist the trier of fact to understand evidence or to determine a fact in issue."(23) In reaching this conclusion the Koss court relied on three cases from other jurisdictions that had found that "battered woman syndrome" had gained general acceptance within the scientific community.(24) In two of these cases the courts had held Frye hearings to determine whether the testimony had attained general acceptance.(25) Taken together the court's reasoning in Koss suggested that Ohio remained wedded to the Frye general acceptance test despite the rules and Johnston.(26) It would take another four years and a revamping of Rule 702 to settle the question of where general acceptance would fit within the Ohio Rules of Evidence.
The "New" Rule 702 and Daubert:
A witness may testify as an expert if all of the following apply:This recodification made reliability a key determination for admissibility while relegating general acceptance to one of many indicia of reliability. Indeed, according to the framers of the rule it was intended specifically to endorse those Ohio decisions that had rejected the Frye general acceptance test.(28) Interestingly, the new rule did not attempt to define the standard of reliability; but rather, left this to further development through case law.(29) The Staff Note did indicate that courts might find Daubert helpful in formulating their approach to admissibility under the new rule.(30)
Recently, the Ohio Supreme Court has looked to Daubert for guidance in determining admissibility under the amended version of Rule 702. In Miller v. Bike Athletic Company,(31) the Ohio Supreme Court cited with approval to the four "Daubert reliability factors" while noting that the ultimate touchstone remains "helpfulness to the jury."(32) As Daubert gains persuasive authority in Ohio's courts the true parameters of reliability will become more readily apparent. As of now, it remains to be seen how exactly Rule 702 will effect admissibility of expert testimony in Ohio.
Joiner and the Future
of Judicial Gatekeeping
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.(35) 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."(36) 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."(37) 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.(38) 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."(39)
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.(40)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.(41)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.(42)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. Whether Joiner will effect Ohio and states like her that have adopted Daubert also remains to be seen.
F. 1013 (D.C. Cir. 1923).
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