Vol. 73, No. 3, March 2000

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Guarding the Gates:
Admissibility of Expert Evidence
in Federal and Wisconsin Courts

The U.S. Supreme Court has called upon trial courts and litigants to resolve the issue of expert witness qualifications at the outset, pursuant to the provisions for hearings on admissibility in Fed. R. Evid. 104(a). Offensive reliance upon the factors enunciated in Daubert in motion practice, whether through motions in limine, Rule 104(a) hearings, or motions for summary judgment, can prevent questionable testimony from reaching jurors. Using Daubert affirmatively in motion practice may force trial judges to evaluate scientific testimony early in the litigation.

On the other hand, for tactical reasons, the Daubert motion should be made after the Rule 26 report is complete and discovery is closed, to foreclose the expert from returning to the drawing board to correct Daubert defects. Much of the timing decision on Daubert motions will depend upon circumstances peculiar to the local jurisdiction. For example, litigation strategy would differ in front of a trial judge who strictly enforces the requirement that the Rule 26 expert report be complete and final as opposed to practice in front of a judge who would liberally allow a party to supplement its expert report with new facts, methodologies, or conclusions.

Appellate Review. The standard of review of a district court's ruling on admissibility is for abuse of discretion. The abuse of discretion standard applies when reviewing a trial judge's ruling on the reliability of an expert's methodology or the reliability of an expert's ultimate conclusion.³⁰ However, that "is not discretion to abandon the gatekeeping function. It is not discretion to perform the function inadequately."³¹

Separate Hearing Requirement. In Daubert, the Ninth Circuit held that "where the opposing party thus raises a material dispute as to the admissibility of expert scientific evidence, the district court must hold an in limine hearing (a so-called Daubert hearing) to consider the conflicting evidence and make findings about the soundness and reliability of the methodology employed by the scientific experts."³² In Kumho, the issue of a mandatory hearing was never raised. However, the Supreme Court approved a trial court decision on affidavits, depositions, and expert reports, with no separate hearing.

Notably, a trial court is not limited under Daubert to consider evidence that will be admissible at trial. Evidence that may be considered includes discovery, offers of proof, affidavits, and stipulations.³³

Burden of Proof on Daubert Hearing. Arguably, the trial court does not apply Daubert factors until evidence is presented "sufficiently" calling an expert's testimony into question.³⁴ The party challenging the expert has the burden of challenging the testimony "by a preponderance of proof."³⁵

Once a prima facie case of admissibility is made, "[t]he opposing party would then be entitled to challenge that showing. This it could do by presenting evidence (including expert testimony) that the proposing party's expert employed unsound methodology or failed to assiduously follow an otherwise sound protocol."³⁶

Depositions Under Daubert. By clarifying that the scope of Daubert includes all expert testimony, the Supreme Court in Kumho has greatly increased the responsibilities of federal trial courts to screen that evidence. The results for counsel are an opportunity and a risk: an opportunity to dramatically influence the outcome of litigation with a well-prepared Daubert deposition and motion, and a risk to lose the opportunity to reach the jury with an expert who is not chosen and prepared for the Daubert attack. (See, "Sample Daubert Expert Deposition" sidebar.)

Conclusion

Robert M. Whitney, U.W. 1974, is of counsel in Lawton & Cates S.C., Madison. He is a litigator who concentrates his practice in products liability, general commercial disputes, and accounting malpractice.

Daubert created a potent weapon for attacking expert testimony in fields of novel science, such as epidemiology. Kumho confirmed the application of Daubert gatekeeping to expert testimony in all fields of expertise, whether applied science, technical skill, "experience and training," or the "soft sciences." The trial court's gatekeeping responsibilities render vulnerable expert pronouncements which have until now been a routine part of trials. Counsel now must ensure that his or her experts' methodology and conclusions will be supported by affirmative evidence that they are based on well-accepted principles, testable and successfully tested, generally accepted in the field, used for purposes other than litigation, and that they are a product of the same level of intellectual rigor that experts in the field bring to their nonlitigation endeavors. The result will have a real effect on the care taken by experts and the counsel who call them, and upon the impact of expert testimony in federal courts and those of the states adopting Daubert.

The other consequence of the broad new federal gatekeeping requirements is the gulf that they create between the use of expert testimony in Wisconsin trial courts and the federal courts. Those with a choice between federal or state court must make a thorough analysis of the importance of expert testimony, and the potential vulnerability of the experts on each side of the case.

Endnotes

¹ Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 6262, pp. 182-83 (1997).

² Albers v. Church of the Nazarene, 698 F.2d 852, 858 (7th Cir. 1983) (internal quotations omitted) (quoting Keegan v. Minneapolis & St. Lovig R.R. Co., 76 Minn. 90, 95, 78 N.W. 965, 966 (1899)).

³ Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579, 595, (1993) (Daubert I); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 1169 (1999).

⁴ For example, in Tyus v. Urban Search Management, 102 F.3d 256 (7th Cir. 1996), cert. denied, 520 U.S. 1251 (1997), the Seventh Circuit applied the Daubert framework to the testimony of social scientists in a discrimination action based on the Fair Housing Act. On the other hand, the Tenth Circuit refused to apply Daubert to the testimony of a mechanical engineer in an automobile roof crush case, because the court viewed the gatekeeping requirements to exclude opinions based on "experience and training."

⁵ Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 1169 (1999).

⁶ Watkins v. Telsmith Inc., 121 F.3d 984, 990 (5th Cir. 1997).

⁷ Id. at 991.

⁸ Hartwell v. Danek Med. Inc., 47 F. Supp. 2d 703, 711 (W.D. Va. 1999).

⁹ General Elec. Co. v. Joiner, 522 U.S. 136, 138 (1997).

¹⁰ Alevromagiros v. Hechinger Co., 993 F.2d 417, 421 (4th Cir. 1993).

¹¹ Target Mkt. Publ'g Inc. v. ADVO Inc., 136 F.3d 1139, 1143 (7th Cir. 1998).

¹² General Electric, 522 U.S. at 140.

¹³ Braun v. Lorillard Inc., 84 F.3d 230, 234 (7th Cir.), cert. denied, 519 U.S. 992 (1996).

¹⁴ Kumho at 1175.

¹⁵ Tanner v. Westbrook, 174 F.3d 542, 547 (5th Cir. 1999).

¹⁶ Black v. Food Lion Inc., 171 F.3d 308, 311 (5th Cir. 1999).

¹⁷ Kumho, 119 S. Ct. at 1175.

¹⁸ 195 S. Ct. at 1176; see also Officer v. Teledyne Republic/Sprague, 870 F. Supp. 408, 410 (D. Mass. 1994) ("[I]n fields like design engineering ... general acceptance is the norm, not the exception").

¹⁹ See, e.g., Frymire-Brinati v. KPMG Peat Marwick, 2 F.3d 183, 186-87 (7th Cir. 1993) (holding trial court had improperly admitted accountant's testimony); De Jager Constr. Inc. v. Schleininger, 938 F. Supp. 446, 455 (W.D. Mich. 1996) ("[T]his Court's decision ... is based upon [the expert's] modus operandi of making unsupported assertions and projections, [and] of deliberately ignoring documents and figures which would strike a certified public accountant in the face").

²⁰ John & Mary Gribbin, Richard Feynman: A Life in Science VII (1997).

²¹ Daubert I at 590.

²² C.C. Phillip Colver and John C. Colver, Standards and Their Importance in Products Litigation; 34 For Def., 14, 15 (April 1992).

²³ Daubert I, 509 U.S. at 594.

²⁴ Kumho at 1176 (emphasis added).

²⁵ Daubert v. Merrell Dow Pharms. Inc., 43 F.3d 1311, 1317 (9th Cir.) cert. denied, 516 U.S. 869 (1995) (Daubert II).

²⁶ Daubert II at 1317.

²⁷ Id. at 1319.

²⁸ The Western District of Wisconsin has adopted the full expert report requirement of Rule 26. The Eastern District opted out of Rule 26 but requires a report disclosing "the substance of expert testimony" including a statement of all opinions to be expressed and the basis and reasons thereof, the data relied upon, the qualifications of the witness, and a listing of any other cases in which the expert testified in the last four years (District Rule 7.03(d)).

²⁹ Advisory Committee Notes, Wright and Miller, Federal Practice and Procedure, Appendices, at 359.

³⁰ Kumho, 119 S. Ct. at 1176.

³¹ Id. at 1179 (Scalia, O'Connor and Thomas, concurring).

³² Daubert II, 43 F.3d at 1319 n.10.

³³ See United States v. Downing, 753 F.2d 1224, affd., 780 F.2d 1017 (3d Cir. 1985).

³⁴ Kumho, 119 S. Ct. at 1175.

³⁵ Daubert I, 509 U.S. at 593; see also Tanner v. Westbrook, 174 F.3d 542 (5th Cir. 1999) ("The proponent [of the expert testimony] need not prove to the judge that the expert's testimony is correct, but she must prove by a preponderance of the evidence that the testimony is reliable").

³⁶ Daubert II, 43 F.3d at 1319, n.10.