Federal Rules of Evidence Amended
 
May 14, 2001
 

On December 1, 2000, several amendments to the Federal Rules of Evidence became effective. The amendments of greatest concern to manufacturers and others in the chain of product distribution are to Rule 702 (Testimony by Experts) and Rule 703, (Bases of Opinion Testimony by Experts.) The thrust of the change to Rule 702 is to incorporate some of the teachings of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999.) The most significant change to Rule 703 is to limit the expert’s ability to put before the jury any inadmissible bases for the offered testimony. Consideration and incorporation of these amendments into the handling of litigated product liability cases on a cost-effective basis should be the goal of a product liability team including inside and outside counsel and expert witnesses.

Rule 702 (Testimony by Experts)

The rule was amended by adding additional language at the end:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact 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. , if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

(amendment underlined.) As can be seen, the three criteria added by the amendment look very similar to some of the factors outlined in the two modern Supreme Court cases concerning expert testimony, Daubert (establishing several non-exclusive criteria the trial judge could use as the "gatekeeper" of admissibility of expert testimony) and Kumho Tire (which confirmed that Daubert applied to all types of offered expert testimony.)

From the practitioner’s viewpoint, a significant effect of the amendment is to apply specific criteria to all types of expert testimony sought to be offered and to articulate a uniform and consistent approach to be taken by every trial court. While some trial courts delved deeply into the analysis and methods of the experts to determine reliability of the proffered testimony, other trial courts saw the extent of the analysis to be conducted under Daubert as little more than determining that the expert’s opinion was something more than baseless speculation. Under the amendment, the trial court and the litigants now have a common point of departure for the analysis. The amendment requires that there must be "meat" i.e., "…sufficient facts or data," applying "…reliable principles and methods…" to the "bones" of the opinion.

The amended rule does not supplant or modify the criteria articulated in Daubert primarily because the criteria listed by the Court in Daubert were not identified as exclusive and/or dispositive in each and every case. The most often quoted Daubert criteria are:

1. whether the technique or theory can be and has been tested

2. whether the technique has been peer reviewed and published

3. the known or potential error rate when the technique or theory is tested

4. the existence and maintenance of standards and controls

5. whether the technique or theory is generally accepted in the relevant technical community

Numerous courts have found other criteria to be applicable in determining the admissibility of certain types of expert testimony. Examples include:

1. whether the testimony flows from independent research or done expressly to support the opinions to be offered, Daubert II, 43 F.3d 1090

2. whether the expert has used an accepted premise to unjustifiably extrapolate to an unwarranted conclusion, GE v. Joiner, 522 U.S. 136

3. whether the expert has excluded other alternative explanations, Clarr v. Burlington N. R. R, 29 F.3d 499

4. whether the experts methods for litigation follow practices of his/her usual professional work, Sheehan v. Daily Racing Form, Inc., 104 F.3d 940

5. whether the discipline itself is known to have reliable and generally accepted results (e.g., astrology and necromancy are not so considered) Kumho Tire

Unfortunately, from a cost-containment viewpoint, intensely focusing on the language of the amendment may not be a less-expensive away to exclude the testimony of an opponent’s expert(s). Although the amended rule generally incorporates and can be reconciled with the factors set forth in Daubert and multiple other reported cases, the amendment is not a shortcut to what can be a complex and time-consuming (and therefore expensive) assignment in a given case.

Perhaps the most cost-effective use that a practitioner can make of the amendment is to use the three criteria set forth in the rule as a framework to incorporate the specific factors of Daubert, Kumho Tire and their progeny that apply to the instant case.

One potential approach could look like this:

Rule 702—Criteria # 1— Is the testimony based on sufficient facts or data?

Daubert criteria that apply: 1
Other case criteria that apply: 1

Rule 702—Criteria # 2—Is the testimony the product of reliable principles and methods?

Daubert criteria that apply:
2, 3 and 4
Other case criteria that apply: 4

Rule 702—Criteria # 3—Has the witness applied the principles and methods reliably to the facts of the case?

Daubert criteria that apply: 5
Other case criteria that apply:
2 and 3

This exercise should be conducted upon receipt of the expert’s report and well before the expert’s deposition so that the particular criteria can be identified and an approach taken at the deposition to elicit testimony from the expert that will be useful in excluding the testimony at trial.

In summary, the amendment to Rule 702 reinforces the principle that reliability is the touchstone of admissibility of expert testimony and offers a uniform standard to approach the testimony of any expert. The amended rule can be used as a guide in conducting discovery to be used in excluding the expert’s testimony if the requirements of the rule and the decided cases have not been met. The decision to undertake the effort necessary to exclude an opposing expert’s testimony should not be made lightly. A significant expenditure of time and resources is necessary to prepare a winning motion and memorandum, all of which follows a detailed deposition of the expert. Since summary judgment often follows an expert’s exclusion, courts must be persuaded by a strong showing that the expert’s proposed testimony does not comply with the amended rule and the cases supporting it.

Rule 703 (Bases of Opinion Testimony by Experts)

Like the amendment to Rule 702, the new language was added at the end:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.

(amendment underlined.) Before Rule 703 was initially adopted, the only bases considered reliable enough to support the admissibility of an expert’s opinion were the expert’s personal knowledge and evidence admitted at trial. Rule 703, for the first time, allowed evidence otherwise inadmissible as a third source of data to support an expert’s opinion.

The rule recognized and attempted to deal with two continually perplexing issues involving expert testimony. The first of those was that many experts, of which treating physicians are a classic example, usually rely on the often inadmissible hearsay of other health care providers in reaching a diagnosis and forming a treatment plan. Putting all of that evidence in before the doctor could testify unnecessarily prolonged and complicated trials and was inconsistent with the manner in which the doctor treated the patient. Doctors routinely and "reasonably" rely on the work of other practitioners and their records. To not allow the doctor to do so at trial ignored how medicine was practiced.

The second problem sought to be solved by Rule 703 was the use of the hypothetical question. When an expert could rely only on his personal knowledge of the facts of the case (nonexistent in most cases), and evidence admitted at trial, counsel who was going to call an expert had to insure that each element of the hypothetical question to be posed was in evidence before the question was asked. In most cases, opposing counsel would attack the hypothetical question, resulting in delays and rephrasing of the question ad nauseum until the jury was totally confused and/or indifferent to the question and the answer. Moreover, since Rule 705 allowed an expert to offer an opinion without first articulating the basis for it, the need for hypothetical questions nearly evaporated, along with the complexity of putting every detail of the bases for the opinion into evidence before asking the hypthetical question.

After adoption of the new rule, the issue of what was "…reasonably relied upon by experts in the particular field…" became the most difficult issue to address consistently. The biggest controversy arose in the context of whether the expert could be used as a mere conduit for otherwise inadmissible evidence. One example of that problem is an accident reconstruction expert who bases his opinion, in part, on the opinion of an investigating law enforcement officer who does not appear at the trial, but prepared the accident report reviewed by the testifying expert. While it is clear that accident reconstruction experts reasonably rely on police reports, most courts had little trouble excluding such "conduit" testimony when proper objection was made.

Not as apparent as "conduit" testimony is the problem that arises when an expert wants to base an opinion on facts and/or issues that the law protects for policy reasons. The best example is the expert who wants to base his opinion that the stairs on which the plaintiff fell were defective because on the day he was there to inspect them, the building owner was replacing all of the treads. Such testimony would vitiate the rule prohibiting the admission of post-accident remedial measures. Similar issues arise when the issue is one of privilege, offer of compromise or other normally inadmissible evidence. Once it is remembered that the reason to exclude that type of testimony is unrelated to its reliability, indeed, replacing all of the treads immediately after an accident is a very reliable indicator that there was something wrong with the stairs, it becomes clear that in such situations, the policy prohibiting admissibility trumps the expert’s ability to base an opinion on matters that are so excluded.

Another problem faced by trial counsel can occur in the cross examination of an expert who had relied on inadmissible evidence as the basis of his/her opinion. An overly aggressive or careless examination can result in the expert’s explaining the otherwise inadmissible evidence in a depth of detail that is only exceeded by the opposing counsel’s redirect examination. There are very few trial judges who will rescue an attorney who has opened the door by eliciting the inadmissible testimony. The only safeguard for such an occurrence is a carefully planned and executed deposition that elicits the basis of every opinion and is then analyzed for whether the bases are admissible. If properly done, no opportunity to introduce potentially damaging testimony is afforded the expert and the attorney who called him/her.

The amended Rule 703 removed any doubt that may have remained whether the inadmissible bases of an expert’s opinion could be solicited on direct examination without first establishing that its probative value outweighs its prejudicial effect. That inquiry is similar to a Rule 403 analysis which is familiar territory to lawyers and judges alike. At the same time, the new rule does provide an opportunity for the proponent of the otherwise inadmissible evidence to convince the trial court that the probative value outweighs the prejudicial effect.

These new amendments have the capacity to further impact the increased scrutiny that expert testimony in product liability cases has received since the decisions in Daubert and Kumho Tire. They add a level of detail that should assist in the determination whether a proposed expert’s testimony is worthy of admission.

Product manufacturers need not speculate whether the time, effort and expense of a Daubert motion is a cost-effective project. A recent study by the Federal Judicial Center, "Expert Testimony in Federal Civil Trials: A Preliminary Analysis" (available from the Center’s Web site at www.fjc.gov) reported a 64% increase in the number of judges who scrutinized expert testimony more closely after Daubert. Given the increased receptiveness to limiting unreliable expert testimony, it is incumbent upon those who seek to exclude such testimony to analyze the proposed testimony, identify the criteria that have not been met and present the material to the court in a way that makes the decision to exclude easy to make and understand.