Litigation often boils down to the “battle of the experts.” We have reviewed a number of cases where the court has been presented with opposing expert opinions and has chosen to follow one expert’s opinion, or has chosen to use the experts’ opinions for guidance and reached its own conclusion. Due to the significance of expert testimony in the litigation process, potential expert witnesses and those employing expert testimony should be cognizant of recent judicial trends regarding its admissibility.

Admissibility of expert testimony is governed by Federal Rule of Evidence 702. This statute states 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.”

In its 1993 decision in Daubert (Daubert v. Merrell-Dow, 509 U.S. 579 (1993)), the Supreme Court indicated that scientific expert testimony was admissible only if it is relevant and reliable. The Court stated that the Federal Rules of Evidence mandate that the trial judge should ensure the expert’s testimony is reliable and relevant. The Court suggested four factors which the trial court may use to determine the admissibility of an expert’s testimony. These factors include:

  • Whether the theory or technique has been/can be tested;
  • Whether the theory or technique has been subject to peer review;
  • Known or potential error rates; and
  • Acceptance within the relevant scientific community.

Daubert was a product liability case where the link between birth defects and medication was in question. The facts of the case suggested that the above factors applied to “scientific” testimony. The Court’s decision did not specifically include skill or experience-based testimony; therefore, it could be argued that expert testimony related to valuation issues would be excluded from the Daubert test. However, it has been widely held that despite Daubert’s focus on “scientific” expert testimony, anyone in the professional community should be aware of the heightened review of potential expert testimony because Daubert’s requirements could be expanded to “non-scientific” testimony.

The Supreme Court has recently issued an opinion specifically expanding the Daubert gatekeeping obligation from “scientific” expert testimony to all expert testimony. In Kumho Tire (Kumho Tire Company Ltd, et al. v. Patrick Carmichael et al., 119 S.Ct 1167 (1999)), the Court addressed whether plaintiff’s expert’s testimony in a products liability case was admissible. The trial court had excluded the expert’s testimony regarding the cause of tire failure as not reliable. Plaintiff’s expert’s opinion was based on a visual and tactile inspection of the tire. He was to testify based on the theory that the tire blow out at issue was caused by a manufacturing defect. He concluded the blow out was caused by a manufacturing defect because his inspection indicated there was an absence of at least two of four physical symptoms indicating tire abuse.

At the trial court level, Kumho Tire argued that plaintiff’s expert testimony was unreliable and should be inadmissible based on a “gatekeeper” theory as defined in Daubert. The trial court agreed, stating that even though plaintiff’s expert testimony was “technical” rather than “scientific,” the expert’s methodology did not satisfy the reliability factors indicated above. The Eleventh Circuit reversed the trial court’s decision, stating that Daubert only applies where the expert was relying on “the application of scientific principles” rather than “on skill or experienced-based observation.”

The Supreme Court agreed with the trial court and reversed the Eleventh Circuit. The Court stated that the “gatekeeping” function mandated by Federal Rules of Evidence and Daubert applied to all expert testimony. The Court noted that a rule differentiating scientific from technical or other specialized knowledge would be difficult to apply. In addition, the Court noted that such a distinction was unnecessary because “experts of all kinds tie observations to conclusions through the use of…general truths derived from specialized experience.”

The Court reiterates that “Daubert’s general principles apply to the expert matters described in Rule 702. The Rule establishes a standard of evidentiary reliability. It requires a valid connection to the pertinent inquiry as a precondition to admissibility. Where such testimony’s factual basis, data, principles, methods, or their application are called sufficiently into questions, the trial judge must determine whether the testimony has a reliable basis in the knowledge and experience of the relevant discipline.”

The Court also stated that the Daubert factors must be applied flexibly. These factors are not a definitive test or checklist. The Supreme Court indicated that the trial judge must have considerable leeway in determining how to assess the reliability of an expert’s testimony in a particular case. The factors listed in Daubert are to be considered only when they are reasonable measures of reliability.

When reviewing a lower court’s determination of reliability, the reviewing court must grant broad latitude regarding how the lower court determined reliability as well as the ultimate reliability determination. In assessing the record, the Supreme Court determined that the trial court did not abuse its discretion, and its exclusion of plaintiff’s expert was reasonable.

Appraiser’s expert testimony clearly falls within the “technical or other specialized knowledge” described by the Court. Those considering utilizing expert testimony must be aware of potential heightened scrutiny of such evidence. In addition, experts must be prepared to explain their valuation methods and convince the trial judge that their analysis is relevant and reliable.

Reprinted from Mercer Capital’s  – Vol. 11, No. 2, 1999. 

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