Getting Scientific Evidence Admitted

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Getting Scientific Evidence Admitted in Federal Court: The Daubert Hearing

Having just completed a hearing on the admissibility of scientific evidence in United States District Court, Donna Defense-Counsel--who represented defendant Big Company--went to The Watering Hole to unwind. She ordered her usual and basked in the glow of successfully exposing the flaws in plaintiff's proposed expert testimony and her brilliant (and therefore continued) representation of Big Company.

As she sipped her drink, she reminisced. The case arose out of a fire that destroyed Big Company's tire manufacturing plant. The plaintiff was Jumbo Insurance, Big Company's insurer, who had denied coverage and brought the declaratory judgment action. The key issue in the case was how the fire started.

Pamela Plaintiff's-Lawyer, counsel for plaintiff Jumbo Insurance, had retained Ed Expert, a chemical engineer, to give expert testimony that the fire had been started by some chemical reactions that only could be attributable to arson. Although Expert had a Master's degree in chemistry and a Ph.D. in chemical engineering, he had very little experience with or knowledge of fires and how they started. Expert had no knowledge of tire manufacturing. Defense-Counsel thought she had done a great job in pointing out these and other defects to Judge Thoughtful, the United States District Court Judge, and anticipated receiving an order excluding Expert's testimony in the near future.

Marvin Muckraker, the local newspaper's legal reporter, also was at The Watering Hole that night. Muckraker had been covering the case, which had become high profile in light of the harm the fire caused to the local economy and the furor some groups had raised about the environmental issues the fire caused. Muckraker had been at the hearing.

Muckraker needed another story about the case and was having difficulty sorting through his notes from the hearing. Although he had planned on spending several hours reading through the filings, his luck changed when he saw Defense-Counsel at The Watering Hole.

Muckraker walked over to Defense-Counsel and asked if she would discuss the case. Feeling satisfied with her performance at the hearing, Defense-Counsel invited Muckraker to join her. Defense-Counsel bought Muckraker a drink, and they began discussing what happened at the hearing.

Muckraker: I have been following this case for quite awhile but I am trying to figure out what went on today. What was the purpose of the hearing?

Defense-Counsel: To determine whether Expert's testimony would be admissible. I think I did a great job of showing that it shouldn't be, don't you think?

Muckraker: Well, I am not sure I understand why Expert's testimony is different than other testimony. For the cases I cover, usually the court determines what evidence will be admitted during trial. Why is this case different? Why was the hearing held today? And how does the Court determine what expert evidence is admissible and what is not admissible?

Defense-Counsel: You just covered a lot of complicated ground. Let me take your questions one at a time. To determine the admissibility of scientific evidence, the Court has to consider a variety of things, including whether the evidence is relevant, whether it has a proper foundation and whether it meets the test for scientific evidence.

Muckraker: Is that the Frye test that I heard mentioned?

Defense-Counsel: No. For decades, Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), was the general test used to determine the admissibility of scientific evidence. Frye involved a defendant in a murder case who offered as evidence the results of a very primitive lie detector test supposedly showing that he did not commit the crime. The court refused to admit that evidence and affirmed his conviction. In doing so, the Frye court set forth what became the test for admissibility of novel scientific evidence.

Simply stated, the Frye test looked at whether novel scientific evidence was generally accepted in the relevant scientific community. If it was, it could be admitted; if it was not, it was inadmissible. When the Federal Rules of Evidence were adopted in 1972, there was some question as to whether Frye was still the test but Frye lingered on.

I have probably given you more than you care to know about Frye. But, getting back to your question, the answer is no, Frye is not the current standard for the admissibility of scientific expert evidence in Federal Court.

Muckraker: Well, what is the standard?

Defense-Counsel: The standard is set forth in a United States Supreme Court case called Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) ("Daubert"), on remand, 43 F.3d 1311 (9th Cir.) ("Daubert II"), cert. denied, 116 S. Ct. 189 (1995).

Muckraker: What does Daubert require?

Defense-Counsel: Daubert involved the admissibility of expert evidence purporting to establish a link between pregnant mothers taking the drug Benedictin and limb reduction birth defects. Plaintiffs in that case offered experts who declared that Benedictin can cause birth defects. The defendant challenged the admissibility of those declarations and the case ultimately wound up in the United States Supreme Court.

The Supreme Court's decision in Daubert is interesting. The opinion first notes that scientific evidence must assist the trier of fact and, therefore, requires evidentiary reliability. The Court noted that "`[e]xpert evidence can be both powerful and quite misleading because of the difficulty in evaluating it.'" Daubert, 509 U.S. at 595. The focus of the Daubert inquiry is on the principles and methodology of the techniques used by an expert, not the conclusions that result from the application of those techniques.

The Court held that the Federal Rules of Evidence had displaced Frye, but then the Court's decision sort of retained the Frye test. More exactly, Daubert directs courts to consider several factors in determining whether to admit scientific evidence, including (1)whether the scientific knowledge can be and has been tested; (2)whether the theory or technique involved has been subject to peer review and publication; (3)the known or potential rate of error for the theory or technique; and (4)the general acceptance inquiry from Frye, which still has some relevance. These factors are not exclusive, and other courts have added to the list, suggesting additional factors including (5) the relationship of the technique to reliable, established methods; (6) the expert's qualifications; (7) the non-litigation uses of the method and (8) other relevant factors. See In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 n.8 (3d Cir. 1994), cert. denied, 513 U.S. 1190 (1995).

Muckraker: So this Daubert standard still includes the Frye test?

Defense-Counsel: In many respects, yes, although under Daubert, the Frye inquiry is just a factor and it is not the only inquiry.

Muckraker: That seems confusing to me. Are you telling me that Daubert is an easier or a more difficult standard to meet than Frye?

Defense-Counsel: That is an interesting question.

Muckraker: All my questions are interesting.

Defense-Counsel: I did not mean to suggest otherwise. Unfortunately, whether Daubert is easier or more difficult to meet than Frye is really in the eye of the beholder.

The Daubert opinion itself suggests that Daubert should be an easier standard to meet than Frye. In fact, and I do not know whether I have the exact quotes, but the Court in Daubert made some broad references to the "liberal thrust" of the Federal Rules of Evidence and their "general approach of relaxing the traditional barriers to 'opinion' testimony." Daubert, 509 U.S. at 579.

Daubert also noted that, for expert evidence, the inquiry under the Federal Rules of Evidence is "a flexible one" and that cross-examination, presentation of contrary evidence and careful jury instructions are the best means of attacking suspect expert evidence. Id. at 594, 596. Daubert placed the responsibility for balancing these interests with the trial judge, who has a screening role and is the evidentiary gatekeeper. Id. at 596-97. So, I think the Daubert opinion could be read as adopting an easier standard for admissibility of expert scientific evidence when compared with the Frye test.

In practice, however, the result seems to be different. It seems to me that more courts are excluding evidence under Daubert than they did under Frye.

Muckraker: What makes you say that?

Defense-Counsel: My opinion is based on a variety of different factors. First, I have come to that conclusion after reading many advance slips and descriptions of other cases. My opinion is not, however, the product of some statistically valid survey. You would need to talk to a law professor to get that type of insight.

Second, when Frye governed, if an appellate court found that evidence met the Frye test, such evidence was admissible in that jurisdiction in subsequent cases so long as a proper foundation was shown and the evidence was relevant. Daubert requires a case-by-case determination, and the trial court has far more discretion. At least in theory, under Daubert, two courts in the same courthouse could consider the same evidence and reach different conclusions yet both could have exercised their discretion properly. That seldom, if ever, would happen under Frye.

Third, Daubert issues arise more frequently than did Frye issues. Once an appellate court made the Frye determination, the primary inquiry was over. In Daubert, however, the same issue can be litigated over and over and over again on a case by case basis.

Fourth, although the cases split, many courts have applied Daubert generally to all expert evidence, not just novel scientific evidence. Frye, remember, applied only to novel scientific evidence.

Finally, although the Daubert opinion can be read as relaxing the Frye standard, I suppose it also could be read as using a "Frye-plus" standard. In other words, I suppose you could read Daubert as requiring that you meet the Frye standard in addition to some other elements. I do not put much stock in that argument. I am, however, somewhat surprised that the application of Daubert may be excluding more evidence than the Frye test excluded.

One caveat: a recent United States Supreme Court decision may change how Daubert is applied. Although confirming that the trial judge is the evidentiary gatekeeper, the Court in General Electric Co. v. Joiner, 118 S. Ct. 512 (U.S. 1997) observed that "the Federal Rules of Evidence allow district courts to admit a somewhat broader range of scientific testimony than would have been admissible under Frye." Id. at 517. Time will tell what effect this may have on the application of Daubert.

Muckraker: You touched on an issue that I want to discuss. Does Daubert apply to all expert evidence, or is it just novel scientific expert evidence?

Defense-Counsel: Courts are all over the board on that one. Again, the Daubert decision itself focused on novel scientific expert testimony. However, because Daubert construed the Federal Rules of Evidence--which govern the admissibility of all expert testimony--many cases view Daubert as applying to all expert testimony.

In attempting to apply Daubert, courts have struggled with the issue. For example, within months of each other, two decisions from the same appellate court used language suggesting the exact opposite conclusion. Compare United States v. Cordoba, 104 F.3d 225, 230 (9th Cir. 1997) ("Daubert applies only to the admission of scientific testimony.") with Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1143 n.8 (9th Cir. 1997) ("Daubert's holding applies to all expert testimony, not just testimony based on novel scientific methods."); see also McKendall v. Crown Control Corp., 122 F.3d 803, 806 n.1 (9th Cir. 1997) (noting cases with "what seem to be conflicting pronouncements" regarding Daubert's scope and attempting to reconcile those cases).

If you were to look at trends, however, it seems to me that Daubert initially was applied only to scientific evidence. Then, for a few years, courts applied Daubert across the board to all expert testimony. At present--nearly five years after the Supreme Court's Daubert decision--it seems that counsel and the courts are becoming more attuned to the scope of Daubert and are beginning to restrict somewhat Daubert's application. In other words, it seems to me that courts now may be restricting Daubert at least to scientific evidence and perhaps only to novel scientific evidence.

* * * * *

Just then, Muckraker noticed that Plaintiff's-Lawyer had walked in to The Watering Hole. Defense-Counsel also noticed her, made a distraction and looked the other way. Muckraker, however, invited Plaintiff's-Lawyer to join the conversation. That caused the conversation to turn back to what had happened at the hearing.

Muckraker: Thanks for joining us. We were just talking about Daubert and its application at today's hearing.

Plaintiff's-Lawyer: Yeah, my expert was great today, don't you agree? And Defense-Counsel failed to prove anything.

Defense-Counsel: I was not required to prove anything and, in any event, I established that your expert did not know what he was talking about.

Muckraker: Wait a minute. I am confused. Who had the burden of proof at the hearing?

Defense-Counsel: The Supreme Court in Daubert held that the admissibility of expert scientific testimony "should be established by a preponderance of proof." Daubert, 509 U.S. at 592 n.10. Although Daubert did not state who has the burden to prove admissibility, under ordinary evidentiary principles, the proponent of the evidence has the burden of establishing that the evidence is admissible. Lust v. Merrell Dow Pharmaceuticals, Inc., 89 F.3d 594, 598 (9th Cir. 1996). That rule is consistent with Daubert and that is why plaintiff lost at the hearing.

Plaintiff's-Lawyer: I disagree. Although Daubert did not state who has the burden, the opinion in Daubert II essentially places the burden on the party opposing such evidence. That is why I won at the hearing today.

Specifically, Daubert II, the Ninth Circuit's decision on remand from the Supreme Court, states that once a party has made a prima facie case of admissibility, "[t]he opposing party then would be entitled to challenge that showing." Daubert II, 43 F.3d at 1319 n.9. Such a challenge can be made by presenting evidence, including expert testimony, establishing that the proposed expert employed unsound methodology or failed to follow an otherwise sound protocol. Id.

Because the prima facie showing required for the admissibility of expert testimony is such a low threshold, I have no doubt that Expert met that burden. I am equally sure that defendant failed to meet its burden and that Expert will be allowed to testify at trial. This whole hearing was a huge waste of time and money.

Muckraker: Why did Judge Thoughtful hold the hearing to begin with?

Plaintiff's-Lawyer: Because Expert, who is certainly qualified to testify, considered the relevant facts and, based on his many years of experience, came to conclusions that hurt defendant badly. Defendant, unable to counter those well-reasoned opinions, sought to exclude them in a desperate attempt to win the case.

Defense-Counsel: Obviously, I strenuously disagree with everything Plaintiff's-Lawyer just said.

Plaintiff's-Lawyer: If I could finish. Any party can move for an advance admissibility hearing--a so-called Daubert hearing-- pursuant to Federal Rule of Evidence 104(a). Rule 104(a) provides that preliminary questions about the admissibility of evidence or the qualifications of a person to be a witness are to be determined by the court outside of the presence of the jury. Because Daubert hearings can quickly eat up the court's time and the parties' money, however, the court likely will determine whether there is a real issue for which an evidentiary hearing is required before setting such a hearing.

For genuine Daubert issues, the court may or may not be required to conduct such a hearing before trial. Compare DaubertII, 43 F.2d at 1318 n.9 (noting that, if there is "a material dispute as to the admissibility of expert scientific evidence, the district court must hold . . . a so-called Daubert hearing") (emphasis added) with Hopkins v. Dow Corning Corp., 33 F.3d 1116, 1124 (9th Cir. 1994) (noting that "[t]he district court is not required to hold a Rule 104(a) hearing, but rather must merely make a determination as to the proposed expert's qualifications.") (emphasis added), cert. denied, 513 U.S. 1082 (1995). In any event, it is a good idea to request such an advance admissibility hearing to avoid wasting the jury's time and to allow the parties to prepare for trial. That is what happened in this case.

Sometimes, the court can resolve Daubert issues when addressing a motion for summary judgment. If, for example, a defendant filed a summary judgment motion that relied on an expert's affidavit implicating Daubert issues, the court might be required to determine whether the expert's testimony was admissible. On the other hand, the court properly might not get into that level of detail and just deny the motion pending trial.

Muckraker: When would a party ask for a Daubert hearing?

Defense-Counsel: It depends on what the party is trying to show. If the issue arises at the motion for summary judgment stage, you might request a hearing a fair bit before trial. If you are trying to exclude evidence at trial, you might request a hearing shortly before trial. Either way, the hearing generally should be requested after the completion of expert disclosure and discovery.

The advantage of having a pretrial hearing is that if the court disallows your opponent's expert testimony, your opponent may not be able to retain another expert and you might win the case (or obtain a favorable settlement) as a result. The disadvantage is that if the court does not strike your opponent's expert, your opponent will know what positions you are attacking and may be better able to prepare for trial. Your opponent also will have had an opportunity to educate the court about their case and to familiarize the court with their expert.

Muckraker: What evidence can the court consider at one of these Daubert hearings?

Defense-Counsel: Like always, whatever the court will allow.

Plaintiff's-Lawyer: Actually, it is far more principled than that. To support a claim or defense, evidence must be admissible under the Federal Rules of Evidence. This is true both if you are trying a case or if you are seeking or resisting summary judgment.

At a Daubert hearing, however, the court can consider any evidence--even evidence that would not be admissible at trial. In other words, the court is not bound by the Federal Rules of Evidence in making the Daubert decision. All that is required is for the court to conclude that the proponent of the challenged evidence made a sufficient showing by a preponderance of the evidence--the more probable than not standard--that the scientific evidence should be admitted under Daubert.

Muckraker: That is interesting, I suppose, but actually I want to know what type of evidence a party can offer at a Daubert hearing?

Defense-Counsel: The first type of evidence that comes to mind, in jurisdictions where it applies, is the expert's statement under Federal Rule of Civil Procedure 26(a)(2)(B). Rule 26(a)(2)(B) requires the parties to disclose an expert's opinion, including "a written report prepared and signed by the [expert] witness" which must include the "data or other information considered by the witness in forming the opinions." Even where that rule applies, however, certain counsel are more forthcoming in providing full expert disclosure. I think most courts that require this type of disclosure are shocked at the minimal nature of plaintiff's--err the parties'--expert disclosures.

In this case, plaintiff provided a bare bones expert disclosure, meaning that we had to depose Expert to obtain the information we needed. Let me tell you, I had a field day at that deposition. I asked all sorts of questions about Expert's report, his anticipated trial testimony and the basis for that testimony. Expert's statements at the deposition--where he admitted a lack of experience or knowledge about fires and about tire manufacturing--were critical in showing the Court that Expert's testimony fails the Daubert test.

Plaintiff's-Lawyer: The only thing that is clear from the hearing today is that Expert will testify at trial. In fact, Defense-Counsel made a tactical error in calling her own expert in an attempt to show that my expert did not meet Daubert.

Defense-Counsel: How can you say it was a tactical error to call my own expert? We sure showed Judge Thoughtful that Expert was a Ph.D. egghead with no real work experience who had never been inside a tire plant or investigated a fire before your client bought and paid for him.

Plaintiff's-Lawyer: Nothing you presented at today's hearing impeached Expert's academic credentials or methods. All you accomplished by putting on your own expert was to create a swearing match between the parties' experts. But that is the exact reason why we have trials in the first place. I mean, opposing parties will never retain testifying experts who agree.

Besides, your own expert has some Daubert issues and presenting your expert at the hearing gave me the perfect chance to attack his opinions. You see, when I can, I go on the offensive at a Daubert hearing and take on the opposing party's expert. I make defendants wish they had not requested a Daubert hearing (or at least had not called their own expert at that hearing). So I always smile a little when an opponent requests a Daubert hearing and then brings their own expert to try to show why my expert's testimony should not be admitted.

Muckraker: What are the key issues at these hearings?

Plaintiff's-Lawyer: The focus of the hearing is for the court to "analyze not what the experts say, but what basis they have for saying it." Daubert II, 43 F.3d at 1316. Under Daubert, the Court is the gatekeeper and must decide what evidence comes in and what evidence is excluded. The court may exclude any or all of an expert's testimony under Daubert. The scope of the hearing depends on how much of the expert testimony the opposing party is trying to exclude.

My experience is that most defendants overreach and attempt to exclude the plaintiff's expert's testimony in its entirety, rather than challenging just the portions that they reasonably might be able to have stricken. An expert's opinion can be based on a few key processes, methods or facts or even on one key process, method or fact. If the defendant can successfully attack those processes, methods or facts as suspect, the expert's entire testimony will be inadmissible. Defendants often overlook this tactical maneuver and challenge all of an expert's testimony. They attempt to hit a home run when an infield single will still win the game.

Judges differ on their willingness to listen to a "their expert did everything wrong" argument. Generally, however, it works to my benefit when defense counsel fails to think through what elements of my expert's testimony they want to attack and why.

Defense-Counsel: The soft spots you want to press in a Daubert hearing are the significant questionable elements of an expert's testimony, which may or may not be most or all of the opinions. I would submit that this is why most expert reports are pretty vague. The expert's deposition is really a prerequisite to making a Daubert challenge.

A party seeking to exclude expert testimony can do so by showing: (1)that the expert reached a conclusion first and then gathered support for the conclusion, Claar v. Burlington N.R.R. Co., 29 F.3d 499, 502-03 (9th Cir. 1994); (2) that the expert failed to exclude other potential causes of injury, Diviero v. Uniroyal Goodrich Tire Co., 919 F. Supp. 1353, 1359-60 (D. Ariz. 1996), aff'd, 114 F.3d 851 (9th Cir. 1997); (3)that the expert extrapolated animal studies to humans without a scientific explanation of why that extrapolation is warranted, Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1392 (D. Or. 1996), and a host of other matters.

Muckraker: What are some of the specific ways you press such deficiencies?

Defense-Counsel: In addition to the factors set forth in Daubert, a party seeking to exclude expert testimony should stress errors in the factual basis of the expert's opinion, flaws in the expert's investigative process and problems with the expert's methodology. On occasion, a simple math error or the failure to consider a single fact can cause as much problem as an unsubstantiated theory. Whether the expert is a specialist in the area of the proposed testimony and whether the expert has been excluded in other cases also may be relevant.

Closely related to these issues are the data underlying the opinion. At an expert's deposition, counsel who may want to make a Daubert challenge will want to determine all grounds for the expert's opinion. Undoubtedly, for some experts, that will result in the expert testifying about certain opinions and grounds for those opinions at a deposition and then relying on a whole bunch of additional grounds at the Daubert hearing.

An expert cannot rely on data upon which other experts in the field do not rely. Again, it is common for counsel making a Daubert challenge to call their own expert to tell the court what data experts in that field rely upon.

Finally, although it is not a very strong argument, you can argue that the probative value of the expert's testimony is substantially outweighed by the danger of unfair prejudice or jury confusion. This is what we call a 403 objection, named after Federal Rule of Evidence 403. Generally, this argument will not carry the day by itself but it may provide the court an additional ground to exclude an expert's testimony, particularly if the court thinks that such testimony is very close to failing the Daubert test.

Muckraker: I am still trying to get a handle on why certain evidence was offered at the hearing. Defense-Counsel, you went to great pains to get plaintiff's expert to admit that he had not done any research in the area before he started working on this case. Why is that important? It seems to me that research is the same regardless of when it is performed.

Defense-Counsel: When the expert performed the research is extremely important. The courts have recognized that some experts are "hired guns"--I have more colorful names that I could give you off the record--and that hired guns generally do not use good science. Daubert II has language something to the effect that a "scientist's normal work place is in the lab or the field, not the courtroom or the lawyer's office." 43 F.3d at 1317. The thought is that research independent of litigation is real research and provides the most persuasive basis to objectively conclude that opinions rendered are the result of good science.

Plaintiff's-Lawyer: As usual, Defense-Counsel overstates her case. Daubert II actually recognizes that merely because "an expert testifies for money does not necessarily cast doubt on the reliability of his testimony." 43 F.3d at 1317. In commercial litigation, no expert I would ever use works for free. The courts do, however, like some confirmation outside of the specific litigation that an expert's opinions are based on good science. My expert has more than a dozen years of college education, including graduate work and post-doctoral research. Without question, he based his opinions on good science.

Muckraker: What happens if the expert's opinions are based on research that is not independent of litigation and, in fact, was prepared specifically for the litigation?

Defense-Counsel: The proponent of the expert testimony still needs to produce objective, verifiable evidence that the testimony is based on good science. One way to make that showing is to demonstrate that the research and analysis supporting the conclusions have been subjected to peer review through publication. Daubert II, 43 F.3d at 1318. The thought is that research accepted for publication in a reputable journal after being subjected to peer review carries with it significant indicia that it meets at least some minimal criteria of good science.

Plaintiff's-Lawyer: From my experience, the two DaubertII inquiries--research done independent of litigation and peer reviewed research--are actually the same standard. To be meaningful, research done independent of the litigation will have been published. In contrast, research done specifically for litigation generally is not published. Therefore, although Daubert II tried to turn this inquiry into two different standards, it does not work. Either the research is performed independent of the litigation and, to be meaningful, is published, or it is performed as a part of the litigation and is not published.

Ask any lawyer how often they allow their testifying expert to publish research done solely for the litigation. The answer is never.

Muckraker: What happens if there is no research independent of the litigation and no peer reviewed publication available?

Plaintiff's-Lawyer: The party offering the expert evidence still can satisfy its burden through the testimony of its own expert. For example, like you saw earlier today, Expert explained precisely how he went about reaching his conclusions and pointed to objective sources--including learned treatises and published articles--to show that he followed accepted scientific method in his analysis. That is all we were required to show. Daubert II, 43 F.3d at 1319.

Defense-Counsel: Unfortunately, Expert did not follow accepted scientific methods in developing his conclusions. What Expert did, as I am sure Muckraker recalls, was to point to a chemistry textbook that stated certain chemical reactions give off heat and that heat can cause fire. But Daubert requires far more than that.

Expert needed to show that the specific steps in conducting his analysis were supported by at least a significant minority scientific view. Because he was unable to do that, his testimony will be excluded. Plaintiff made no showing that Expert's testimony would be helpful to the trier of fact which, after all, is at the core of what Daubert requires.

Plaintiff's-Lawyer: I disagree. All that is required is that we explain Expert's methodology and demonstrate in some objectively verifiable way that Expert used a reliable scientific method and followed it properly. Daubert II, 43 F.3d at 1319 n.11. We made that showing. Expert's testimony clearly is relevant and not unfairly prejudicial. That is why I am confident Judge Thoughtful will find the evidence admissible.

As an aside, Muckraker, if the court had any serious questions about certain expert testimony, or if such testimony was extraordinarily technical, the court could retain its own expert to assist in sorting through things. Although not used very often, that procedure is authorized by Federal Rule of Evidence 706 and could be used to help work through particularly difficult Daubert issues. Cf. Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1392 (D. Or. 1996) (noting that court had "invoked [the] inherent authority as a federal district court judge to appoint independent advisors to the court"). Those issues, however, clearly are not present here.

Muckraker: My deadline is coming up shortly. Any final comments?

Plaintiff's-Lawyer: The Daubert hearing was not required in this case because Expert's testimony is not the type of evidence governed by Daubert. Even if Daubert did apply, however, we clearly met the requirements of that case and, relying in part on that expert testimony, we will win at trial.

Defense-Counsel: Daubert does apply and, because Expert is a hired gun, his testimony is not admissible. Expert's proposed testimony is not based on science independent of the litigation, was not subject to peer review and is not otherwise based on good science. Judge Thoughtful will do the right thing and exclude Expert's testimony. As a result, we will win this case.

Muckraker: Thank you both for your time. I will let you two fight over the bill. Oh, one final question before I go, does Daubert raise any interesting issues on appeal?

Plaintiff's-Lawyer: I will defer to Defense-Counsel on that one. She is the one who is going to have to worry about appealing.

Defense-Counsel: Although I think we should delay that discussion until plaintiff appeals, in Joiner, the United States Supreme Court held that a trial court's decision to admit or exclude expert evidence is reviewed for an abuse of discretion. Id. at *2. That deferential standard of review applies even if excluding certain evidence determines the outcome of the entire case. Id. at *4. In short, under Joiner, the trial court is where most battles over expert testimony will be won or lost.

Muckraker: So it sounds like the trial court may be the final word on this issue.

Plaintiff's-Lawyer and Defense-Counsel (in unison): I agree.

* Published in Vol. 24, No. 2 Winter 1998 Litigation Magazine.

Paul Eckstein and Samual Thumma are partners at Brown and Bain, in Phoenix.
Mr. Eckstein may be reached at 602-351-8222 or by e-mail at eckstein@brownbain.com
Mr. Thumma may be reached at 602-351-8000 or by e-mail at thumma@brownbain.com

The information offered here is not intended as legal advice or opinion applicable in specific circumstances. You are urged to consult an attorney concerning your particular situation. Under professional rules, this article may be regarded as advertising material.

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