Assessing Expert Methodology: Daubert: in the Third Circuit and the District of New Jersey

This article was previously published in the February 2004 issue of New Jersey Lawyer Magazine, a publication of the New Jersey State Bar Association, and is reprinted here with permission.

In a typical federal case, the testimony of a qualified and effective expert is an essential component of a successful trial. In the decade since the United States Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc., 1 the Court has expanded the gatekeeper role of the federal trial courts to a broad spectrum of civil litigation, as the Third Circuit and district courts have refined the admissibility standard. From the inception of a federal case, a practitioner must anticipate and plan for a proceeding that may determine the outcome the Daubert hearing.

Federal Rule of Evidence 702 and the Daubert Decision

In Daubert, the Supreme Court established a detailed standard for a trial court's admission of expert opinion, based in large measure upon the trial judge's evaluation of the scientific foundation of the expert's opinion. Before Daubert, the central authority was the 70-year-old, two-page opinion of the United States Court of Appeals for the District of Columbia Circuit in Frye v. United States.2 Frye required that expert testimony be premised upon scientific principle "sufficiently established to have gained general acceptance in the particular field in which it belongs." 3 When Frye provided the governing test, the standard for the admission of expert testimony focused upon the question of scientific consensus rather than the quality of the scientific method.

Daubert is an interpretation of Federal Rule of Evidence 702, the language of which signaled a departure from the Frye general acceptance test. When Daubert was decided, the rule provided:

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.

In Daubert, a Bendectin products liability case, the Court considered the admissibility of the testimony of the plaintiff's expert interpreting epidemiological studies by others. The expert's testimony had been rejected by the trial court and the United States Court of Appeals for the Ninth Circuit under the Frye standard. The Supreme Court held that the adoption of Rule 703 had effectively overruled the Frye test, "{given the Rules' permissive backdrop and their inclusion of a specific rule on expert testimony that does not mention 'general acceptance.'" 4 It substituted a case-specific inquiry by the trial judge, applicable not only to "unconventional evidence" but to other scientific testimony.

Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify as to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology properly can be applied to the facts in issue. We are confident that federal judges possess the capacity to undertake this review. 5

The Court also determined that trial judges have more control over experts than over lay witnesses in applying Federal Rule of Evidence 403 to exclude testimony "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . ." 6

With that general introduction, the Supreme Court established the following factors for admissibility in the context of the Bendectin issue before it factors that became the framework of the Daubert test:

whether the theory or technique that the expert contends cons titutes scientific knowledge has been tested;

whether the theory or technique has been subject to peer review and publication (but publication is not dispositive);

the known or potential error rate and the existence or maintenance of standards controlling the technique's operation; and

"'general acceptance' can yet have a bearing on the inquiry," in the sense that widespread acceptance can be an indicator of reliability, and "a known technique which has been able to attract only minimal support within the community ... may properly be viewed with skepticism." 7

The federal trial courts were thus assigned a substantial task, well beyond the parameters of the general acceptance test of Frye: validation of the scientific technique that the expert employs, in its broader application and its case-specific use. In General Electric Co. v. Joiner, decided a few years after Daubert, the Supreme Court underscored the importance of the trial court's gatekeeper role, holding that the district court's determination is subject to an "abuse of discretion" standard on appeal, and approving the exclusion of expert evidence when the data and the opinion are insufficiently connected. 8

Yet an important issue remained to be determined: Was Daubert limited to scientific evidence such as the epidemiology at issue in that case, or did it extend to experts in other fields, including those whose methodology was less distinct? The Court answered that question in the affirmative in Kumho Tire Co. v. Carmichael, in which the contested expert was a tire engineer. 9 There, the Supreme Court held that the Daubert standard extends to all fields in which experts have technical or otherwise specialized knowledge...

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