IAAI seeks clarification of “expert testimony” ruling

IAAI seeks clarification of “expert testimony” ruling

The International Association of Arson Investigators (IAAI) has filed an Amicus Brief (“friend of the court”) in the United States Court of Appeals for the Eleventh Circuit in the case of Michigan Millers Mutual Insurance Company v. Benfield (U.S.C.A. No. 97-2138). The trial court refused to allow the fire investigator hired by Michigan Millers to testify, on the basis that he “was not even qualified to render an opinion in court because he allegedly failed to meet the standard of the United States Supreme Court ruling in [Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993, WL 224478)],” explains the IAAI.

In that case, Jason Daubert sued Merrell Dow Pharmaceuticals in California claiming that Bendictin, a morning sickness drug manufactured by Merrell and taken by his mother during her pregnancy, caused his birth defects. According to Joan L. G. Morgan, a partner with the Seattle, Washington, law firm of Williams, Kastner & Gibbs: “Eight experts with substantial credentials testified `more probably than not` that Bendictin caused Jason`s birth defects, but a federal court in California and the 9th Circuit Court of Appeals, however, refused to let Jason`s experts tell their theories to a jury. Their primary reason was that Jason`s experts were not espousing theories that were generally accepted by the scientific community. The theories had not even been turned into studies published in scientific peer-reviewed journals.”1

“In June,” Morgan continues, “the U.S. Supreme Court ruled in favor of Jason and overruled the 70-year-old case Frye v. United States, 54 App. D.C. 47, 293 F. 1013 (1923) that required all testimony to be based on scientific principles that are `sufficiently established to have gained general acceptance` in the scientific community. A plaintiff doesn`t have to show that his scientific evidence would be generally accepted in the relevant scientific community. The Supreme Court has now ordered federal court judges to screen expert testimony so they make sure it is at least supported by `scientific knowledge` and that there are `good grounds` for the expert`s opinions based on what is known about that area of science.

“Daubert is `the new law of the land,` which states that the `more liberal` Federal Rules of Evidence provide the only standards for scientific testimony in a federal trial. Because many states have adopted the Federal Rules of Evidence, the effect of Daubert will definitely extend beyond the federal court arena,” observes Morgan.

Daubert has been interpreted in various ways by different courts. In McKendall v. Crown Control, 9556657, a California products liability case, for example, the 9th U.S. Circuit Court of Appeals ruled that “expert testimony need not be based on scientific knowledge or methods but may rely on the training and experience of the witness.” Circuit Judges Betty B. Fletcher and Harry Pregerson and Senior U.S. District Judge Leonard D. Wexler said the District Court “inappropriately applied Daubert in Mc- Kendall.”

In her opinion (August 8, 1997), Judge Fletcher noted that the Daubert court cited Federal Rule of Evidence 702, which allows for scientific testimony by witnesses who are qualified as experts `by knowledge, skill, experience, training or education.` “2 McKendall, a furniture store employee, had suffered back and leg injuries when a sofa slid from the cargo area of one of the company`s forklifts onto the platform where he was operating machinery. He sued Crown, the furniture company. McKendall`s attorney argued “that the equipment was flawed by its lack of a protective barrier and sought to present testimony by an experienced mechanical and metallurgical engineer.” The district court excluded the testimony of the witness, who had worked in product design, development, and safety for about 50 years; was a professor of mechanical engineering; and had investigated hundreds of forklift cases. He had also testified often on machinery safety. Crown was therefore granted summary judgment. The court cited Daubert and Rule 702, saying “the proposed expert testimony consisted of unsubstantiated conclusions rather than scientific principles, because McKendall had failed to show that a protective barrier would have ensured his safety.”

The 9th District Court of Appeals, in its overturn of the district court`s ruling, noted that the court has “broad discretionary powers” to determine whether a proposed expert is qualified and must decide if the proposed opinion concerns “scientific, technical or other specialized knowledge.” Daubert applies only to testimony based on scientific knowledge and methods, the Court said, and does not preclude testimony based on experience, education, and other qualifications.

“Some previous 9th Circuit decisions appear to contradict the McKendall ruling as to whether Daubert applies to all expert testimony or only to scientific knowledge,” Judge Fletcher pointed out. “But Daubert viewed in a broad context gives `strong advice to district courts` in ruling admissibility; trial judges are the gatekeepers and should pay particular attention to the reliability of the expert and his or her testimony,” she explained.

“One of the questions raised after the U.S. Supreme Court changed the traditional standard for determining the admissibility of expert scientific testimony in Daubert v. Merell Dow Pharmaceuticals was whether the states would follow the Supreme Court`s lead,” point out John W. Hays and Keith Moorman, of the Berown, Todd & Heyburn PLLC, Lexington, Kentucky office.3 “The Supreme Court of Kentucky recently answered that question for Kentucky in Mitchell v. Commonwealth, Ky., 908 S.W.2d 100 (1995), by adopting Daubert as the standard of review for determining the admissibility of expert scientific testimony pursuant to Rule 702 of the Kentucky Rules of Evidence. Although the initial question has now been answered in Kentucky, litigants and lawyers should expect more to come and should become familiar with the new standard as soon as possible,” they advise. They explain the following: “Effective July 1, 1992, Kentucky adopted rules of evidence which for the most part mirror the Federal Rules of Evidence. In fact, Kentucky`s rule on the admissibility of expert testimony, KRE 702, is identical to its federal counterpart, Fed.R.Evid. 702. Both rules state that

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.”

The authors say this is a crucial rule in many cases “because proving liability or damages or both often hinges on expert testimony.” They stress that it is critical to understand how Rule 702 will be applied under Daubert.

The IAAI explains that clarification of Daubert is needed. Its brief strongly objects to Daubert`s being applied to fire investigation, which the IAAI asserts, “is not a `junk science` or a novel or untested science theory.”

Paul Burke, a partner attorney of Drew, Eckl & Farnham in Atlanta, Georgia, who drafted the Amicus brief for the IAAI, said in a phone interview that the brief was filed in October 1997 and that the case should be argued around February. A ruling is usually forthcoming about 30 days later, he said.

1. “High court changes evidence rules,” Issues of Injury, Joan L.G. Morgan, Vol. 7, No. 3. 1993, http://www.mcn.com/ioi/1993/daubert.htm).

2. ” `Daubert` Clarified by 9th,” B. J. Palermo, special to The National Law Journal, The National Law Journal (p. A06), Monday, Sept. 15, 1997)/http://www.ljextra.com/practice/intellectualproperty/0915daubert.html) Intellectual Property Center, Law Journal Extra! © 1997 The New York Law Publishing Company.

3. “Kentucky Adopts the Daubert Standard,” John W. Hays and Keith Moorman, Legal Pad, © 1996 Brown, Todd & Heyburn PLLC, http://www.bth-pllc.com/newstuff/daubert.html December 22, 1997.

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