Jones on Evidence: Civil and Criminal 7th ed.

Penn State Law elibrary Books Faculty Works 2004 Jones on Evidence: Civil and Criminal 7th ed. Anne T. McKenna Penn State Law, atm19@psu.edu Clifford S. Fishman The Catholic University of America Follow this and additional works at: http://elibrary.law.psu.edu/fac_books Part of the Civil Law Commons, Civil Procedure Commons, Criminal Law Commons, Criminal Procedure Commons, Evidence Commons, and the Science and Technology Law Commons Recommended Citation McKenna, Anne T. and Fishman, Clifford S., "Jones on Evidence: Civil and Criminal 7th ed." (2004). Books. 24. http://elibrary.law.psu.edu/fac_books/24 This Book is brought to you for free and open access by the Faculty Works at Penn State Law elibrary. It has been accepted for inclusion in Books by an authorized administrator of Penn State Law elibrary. For more information, please contact ram6023@psu.edu.

JONES ON EVIDENCE CIVIL AND CRIMINAL 7TH EDITION by Clifford S. Fishman Professor of Law The Columbus School of Law The Catholic University of America Anne T. McKenna, Esquire Visiting Assistant Professor Penn State Law Member of the State and Federal Bars in Maryland and the District of Columbia Volume 6 39:1 52:25 For Customer Assistance Call 1-800-328-4880 Mat #41637225

Table of Contents CHAPTER 39. LAY WITNESS OPINION: GENERAL PRINCIPLES I. INTRODUCTION; LEGISLATIVE AND JUDICIAL REGULATION 39:1 Introduction 39:2 Fed. R. Evid. 701: The restyled text, effective December 1, 2011 39:3 Prior versions of Fed. R. Evid. 701 39:4 Equivalent state law: Overview 39:5 Alabama 39:6 Alaska 39:7 Arizona 39:8 Arkansas 39:9 California 39:10 Colorado 39:11 Connecticut 39:12 Delaware 39:13 District of Columbia 39:14 Florida 39:15 Georgia 39:16 Hawaii 39:17 Idaho 39:18 Illinois 39:19 Indiana 39:20 Iowa 39:21 Kansas 39:22 Kentucky 39:23 Louisiana 39:24 Maine 39:25 Maryland 39:26 Massachusetts 39:27 Michigan 39:28 Minnesota 39:29 Mississippi 39:30 Missouri xi

TABLE OF CONTENTS 41:7 Fed. R. Evid. 705: Disclosing the facts or data underlying an expert s opinion 41:8 Fed. R. Evid. 706: Court-appointed expert witness 41:9 Subjects of expert witness testimony 41:10 Discovery and expert witnesses CHAPTER 42. EXPERT WITNESSES: A CIVIL PRACTITIONER S PRIMER 42:1 Introduction: Do you need an expert? 42:2 Locating the best expert A qualified expert with an admissible opinion 42:3 How is an expert determined to be qualified? 42:4 Consulting experts versus identified experts 42:5 Procedural requirements for proper identification of experts 42:6 Drafting the proper designation or identification of experts 42:7 The expert report 42:8 Expert discovery Written discovery 42:9 The expert deposition 42:10 The Daubert hearing 42:11 Experts at trial: In general 42:12 Cross examination of expert witnesses 42:13 Preservation of expert issues for appeal Appendix 42A. Sample Notice of Deposition Duces Tecum of the Expert and Exhibit Specifying Documents CHAPTER 43. FED. R. EVID. 702 AND EXPERT TESTIMONY 43:1 Fed. R. Evid. 702 43:2 Admission of expert testimony before Fed. R. Evid. 702 43:3 Fed. R. Evid. 702 History and amendments 43:4 Expert qualification under Fed. R. Evid. 702 43:5 Qualifying the expert: Technical versus scientific expert testimony 43:6 Specialized knowledge and experience as a basis to qualify a particular witness 43:7 Licensure as basis to qualify an expert witness 43:8 Statutory requirements to testify as an expert xvii

JONES ON EVIDENCE, 7TH ED 43:9 Trial judge discretion re: expert witness qualification 43:10 Procedural requirements for expert qualification In general 43:11 Specific subjects of expert qualification 43:12 Procedural requirements for expert qualification Identification of expert witness 43:13 Use of discovery to ascertain expert witness qualification 43:14 Qualifying parties and lay witnesses as experts CHAPTER 44. FED. R. EVID. 702, DAUBERT, AND ITS PROGENY 44:1 Before Fed. R. Evid. 702: Frye and the general acceptance test 44:2 The enactment of Fed. R. Evid. 702 and the Frye general acceptance conflict 44:3 Fed. R. Evid. 702, Fed. R. Evid. 703, and the Daubert trial court 44:4 Daubert Relevance, reliability, fit 44:5 Daubert s four nonexclusive factors to examine scientific methodology 44:6 Daubert s gatekeeper metaphor 44:7 The Daubert dissent 44:8 General Elec. Co. v. Joiner Principles, methodology and conclusions 44:9 Kumho Tire: Technical or other specialized knowledge 44:10 Kumho Tire: Does Daubert apply to expert testimony based on experience or technical knowledge? 44:11 Kumho Tire: Applying the Daubert factors to nonscientific expert testimony 44:12 Kumho Tire and Joiner: The abuse of discretion standard 44:13 Trial judge discretion and expert testimony: Appellate review Federal court approaches 44:14 State court approaches 44:15 Daubert procedural issues What triggers a gatekeeper Daubert analysis? 44:16 What triggers a full Daubert hearing? 44:17 Applying Daubert: Substance 44:18 Applying Daubert: Other relevant factors xviii

TABLE OF CONTENTS 44:19 Applying Daubert: May a judge accept an expert s ipse dixit? 44:20 Applying Daubert: When expert testimony is excluded 44:21 When Frye and Daubert do not apply: Pure opinion rule 44:22 When Frye and Daubert do not apply: Conclusions based on experience and observations 44:23 When Frye and Daubert do not apply: Evaluation and comment 44:24 When Frye and Daubert do not apply: Regularly employed method 44:25 When Frye and Daubert do not apply: Assist the juror s own observations or understanding 44:26 Daubert s applicability at pretrial hearings and bench trials 44:27 Methodologies, applications and conclusions 44:28 Extent of exclusion CHAPTER 45. STATE 702 EQUIVALENTS: DAUBERT OR FRYE STANDARD 45:1 Introduction to Frye: The general acceptance standard 45:2 Applying the Frye general acceptance test 45:3 Frye to Daubert; Fed. R. Evid. 702 45:4 Amendments to Fed. R. Evid. 702 45:5 Fed. R. Evid. 702 and corresponding state law 45:6 Alabama 45:7 Alaska 45:8 Arizona 45:9 Arkansas 45:10 California 45:11 Colorado 45:12 Connecticut 45:13 Delaware 45:14 District of Columbia 45:15 Florida 45:16 Georgia 45:17 Hawai i 45:18 Idaho 45:19 Illinois 45:20 Indiana xix

JONES ON EVIDENCE, 7TH ED 45:21 Iowa 45:22 Kansas 45:23 Kentucky 45:24 Louisiana 45:25 Maine 45:26 Maryland 45:27 Massachusetts 45:28 Michigan 45:29 Minnesota 45:30 Mississippi 45:31 Missouri 45:32 Montana 45:33 Nebraska 45:34 Nevada 45:35 New Hampshire 45:36 New Jersey 45:37 New Mexico 45:38 New York 45:39 North Carolina 45:40 North Dakota 45:41 Ohio 45:42 Oklahoma 45:43 Oregon 45:44 Pennsylvania 45:45 Rhode Island 45:46 South Carolina 45:47 South Dakota 45:48 Tennessee 45:49 Texas 45:50 Utah 45:51 Vermont 45:52 Virginia 45:53 Washington 45:54 West Virginia 45:55 Wisconsin 45:56 Wyoming CHAPTER 46. FED. R. EVID. 703: BASES OF AN EXPERT S OPINION TESTIMONY 46:1 Bases for expert testimony: In general 46:2 Fed. R. Evid. 703 Overview of amendments 46:3 Substantive 2000 amendment xx

TABLE OF CONTENTS 46:4 Current language 2011 restyling amendment 46:5 Fed. R. Evid. 703 s permissible bases for expert testimony 46:6 Fed. R. Evid. 703 Practical considerations in application 46:7 Based on first-hand knowledge 46:8 Otherwise inadmissible evidence: An overview 46:9 Otherwise inadmissible evidence General meaning of reasonably relied upon by experts in the field 46:10 Reasonably relied upon by experts in the field Law enforcement and forensic experts 46:11 Otherwise inadmissible evidence: Reasonably relied upon hearsay 46:12 Otherwise inadmissible evidence: Admissibility as basis evidence 46:13 Otherwise inadmissible evidence: Considerations with medical and mental health experts 46:14 Otherwise inadmissible evidence: Interplay with other rules, hearsay, and Confrontation Clause 46:15 Opinion based on privileged information 46:16 Bench trials and Rule 703 46:17 Other bases: Opinion relying on other opinion 46:18 Background information 46:19 Specified standards as bases for opinion 46:20 Bases for medical expert testimony 46:21 Basis for testimony as to value, amount of damages, income; other financial matters 46:22 Basis for testimony on other issues 46:23 Based on trial testimony and exhibits 46:24 Hypothetical questions In general 46:25 Specific subjects of hypothetical questions 46:26 State law 46:27 Alabama 46:28 Alaska 46:29 Arkansas 46:30 Arizona 46:31 California 46:32 Colorado 46:33 Connecticut 46:34 Delaware 46:35 District of Columbia xxi

JONES ON EVIDENCE, 7TH ED 46:36 Florida 46:37 Georgia 46:38 Hawaii 46:39 Idaho 46:40 Illinois 46:41 Indiana 46:42 Iowa 46:43 Kansas 46:44 Kentucky 46:45 Louisiana 46:46 Maine 46:47 Maryland 46:48 Massachusetts 46:49 Michigan 46:50 Minnesota 46:51 Mississippi 46:52 Missouri 46:53 Montana 46:54 Nebraska 46:55 Nevada 46:56 New Hampshire 46:57 New Jersey 46:58 New Mexico 46:59 New York 46:60 North Carolina 46:61 North Dakota 46:62 Ohio 46:63 Oklahoma 46:64 Oregon 46:65 Pennsylvania 46:66 Rhode Island 46:67 South Carolina 46:68 South Dakota 46:69 Tennessee 46:70 Texas 46:71 Utah 46:72 Vermont 46:73 Virginia 46:74 Washington 46:75 West Virginia 46:76 Wisconsin 46:77 Wyoming xxii

TABLE OF CONTENTS CHAPTER 47. FED. R. EVID. 704(A): OPINION ON ULTIMATE ISSUE (CIVIL) 47:1 History of the ultimate issue rule 47:2 History of Fed. R. Evid. 704 and amendments thereto 47:3 Fed. R. Evid. 704 47:4 Policies underpinning Fed. R. Evid. 704 47:5 Legal conclusion expressed as an expert opinion: The interplay of Fed. R. Evid. 702, 704(a), and 403 47:6 Legal conclusion expressed as an expert opinion: Generally 47:7 Expert opinion on ultimate issue: When is it permissible? 47:8 Expert opinion on ultimate issue: When is it impermissible? 47:9 Legal conclusion expressed as a lay opinion 47:10 Effect of erroneous admission of legal conclusion 47:11 Certainty of expert s opinion: General principles 47:12 Certainty of expert s opinion: Medical malpractice actions 47:13 Certainty of expert s opinion: Other types of actions 47:14 Defining legal insanity: Generally 47:15 State law counterparts CHAPTER 48. FED. R. EVID. 705 48:1 History of Fed. R. Evid. 705 and amendments thereto 48:2 Fed. R. Evid. 705 48:3 Fed. R. Evid. 705 in practice 48:4 Construction of Fed. R. Evid. 705 in conjunction with Fed. R. Evid. 703 48:5 Construction of Fed. R. Evid. 705 with Fed. R. Civ. P. 26(a)(2) regarding disclosures 48:6 Construction of Fed. R. Evid. 705 and Fed. R. Civ. P. 56 Summary judgment CHAPTER 49. FED. R. EVID. 706: COURT-APPOINTED EXPERT WITNESSES 49:1 Fed. R. Evid. 706 xxiii

JONES ON EVIDENCE, 7TH ED 44:21 When Frye and Daubert do not apply: Pure opinion rule 44:22 When Frye and Daubert do not apply: Conclusions based on experience and observations 44:23 When Frye and Daubert do not apply: Evaluation and comment 44:24 When Frye and Daubert do not apply: Regularly employed method 44:25 When Frye and Daubert do not apply: Assist the juror s own observations or understanding 44:26 Daubert s applicability at pretrial hearings and bench trials 44:27 Methodologies, applications and conclusions 44:28 Extent of exclusion KeyCiteL: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on WestlawL. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials. 44:1 Before Fed. R. Evid. 702: Frye and the general acceptance test In the 1923 case Frye v. U.S., 1 the United States Court of Appeals for the D.C. Circuit considered whether a scientist who had administered a systolic blood pressure deception test to the defendant could testify as an expert witness to explain to the jury how the deception test an early form of a lie detector test worked and to offer testimony regarding the significance of the defendant s deception test results. In affirming the trial court s exclusion of the expert s testimony regarding the primitive lie detector test and the test results, the D.C. Circuit determined that exclusion was appropriate because the method, i.e., the deception test, was not generally accepted in the scientific community. As the Frye court explained in a two-page opinion uncluttered by footnotes 2 when ruling on the admissibility of [Section 44:1] 1 Frye v. U.S., 293 F. 1013, 34 A.L.R. 145 (App. D.C. 1923). 2 Reasonable people can differ 340

FED. R. EVID. 702, DAUBERT, AND ITS PROGENY 44:1 expert testimony, there can be a twilight zone where courts must determine whether a particular scientific principle or discovery or method upon which an expert s deduction or testimony is based has crossed the line between the experimental and demonstrable stages. 3 That scientific principle or discovery must be sufficiently established to have gained general acceptance in the particular field in which it belongs. 4 Between 1923 and the enactment of the Federal Rules of Evidence in 1975, most federal and state courts used Frye s general acceptance standard as the benchmark for admissibility of expert testimony. As discussed more fully in 45:1 et seq., despite the passage of Fed. R. Evid. 702 in 1975 and the Supreme Court s decision in Daubert in 1993, the general acceptance standard has continued to survive for more than 90 years in numerous states because it is perceived as fostering judicial economy. This standard empowers courts to restrict or reject unfounded scientific evidence, thereby presumably reducing excess litigation and streamlining the judicial process. 5 Proponents of this standard often argue that it creates a limited pool of qualified experts in a particular field, which, theoretically, leads to a greater degree of as to whether these features of the opinion merit derision or admiration. 3 Frye v. U.S., 293 F. 1013, 34 A.L.R. 145 (App. D.C. 1923). 4 Frye v. U.S., 293 F. 1013, 34 A.L.R. 145 (App. D.C. 1923). The Frye court observed: [W]hile courts will go a long way in admitting expert testimony deduced from a well-organized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. Applying this standard, the court held that the lie detector or systolic blood pressure deception test had not reached such standing and scientific recognition among physiological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made. 293 F. 1013, 1014, 34 A.L.R. 145 (App. D.C. 1923). 5 Reducing excess litigation became a political and public policy issue in the late 1980s. Former Vice President Quayle s Council on Competitiveness focused on stricter evidentiary standards as a method of ending excess litigation. Kaushal B. Majmudar, Daubert v. Merrel Dow: A Flexible Approach to the Admissibility of Novel Scientific Evidence, 7 Harv. J.L. & Tech. 187, 194 195 (1993). But see Kenneth J. Chesebro, Galileo s Retort: Peter Huber s Junk Scholarship, 42 Am. U. L. Rev. 1637, 1687 1692 (1993) (arguing that the Frye test does not reduce excess litigation). 341

44:1 JONES ON EVIDENCE, 7TH ED uniformity. The general acceptance standard also reduces the risk that a jury will be unduly influenced by a witness s credentials 6 and increases the probability that expert witness testimony is accurate and verdicts based thereon will be accurate as well. 7 The general acceptance standard has very real limitations, however, which became a focal point of controversy following the enactment of the Federal Rules of Evidence. 8 In particular, the general acceptance standard prevents litigants from presenting novel scientific theories. 9 Although many novel scientific theories eventually are discredited, some ultimately become generally accepted. 10 Critics of the general acceptance standard maintain that it is inequitable, especially in cases of medical malpractice and toxic torts, 11 to force a plaintiff to delay legal action until the evidence on which his 6 While a jury may have ample expertise to weigh the presentation of basic evidence, most lay persons cannot comprehend many of the technical aspects of expert scientific testimony used in litigation. Andrew J. Lustigman, A New Look at Thermography s Place in the Courtroom: A Reconciliation of Conflicting Evidentiary Rules, 40 Am. U. L. Rev. 419, 445 (1990) (discussing a jury s ability to comprehend neurological and musculoskeletal disorders). Lustigman notes, for example, that a jury presented with a graphic color photograph of the plaintiff s skin temperature purporting to show a positive injury will infer that it is objective proof regardless of its accuracy. 7 Andrew J. Lustigman, A New Look at Thermography s Place in the Courtroom: A Reconciliation of Conflicting Evidentiary Rules, 40 Am. U. L. Rev. 419, 446 (1990) (arguing that if scientists do not agree with a particular technique, it should not be used in a courtroom to influence a trier of fact). 8 Fed. R. Evid. 702 is discussed in 40:8 to 40:11. 9 U.S. v. Downing, 753 F.2d 1224, 1236 1237, 17 Fed. R. Evid. Serv. 1 (3d Cir. 1985) (discussing the inconsistent application of the Frye standard to determinations of whether novel theories were generally accepted); see U.S. v. Sample, 378 F. Supp. 44, 53 (E.D. Pa. 1974) ( [t]he Frye test of general acceptance in the scientific community precludes too much relevant evidence... ). One author argues that the restrictive standard of general acceptance is disadvantageous to toxic tort plaintiffs who are already faced with overcoming an entrenched defendant with substantial financial resources. Kaushal B. Majmudar, Daubert v. Merrel Dow: A Flexible Approach to the Admissibility of Novel Scientific Evidence, 7 Harv. J.L. & Tech. 187, 195 (1993). 10 See Andrew J. Lustigman, A New Look at Thermography s Place in the Courtroom: A Reconciliation of Conflicting Evidentiary Rules, 40 Am. U. L. Rev. 419, 447 (1990) (noting that the general acceptance test fails to recognize the perpetual nature of scientific advancement). 11 Many of these plaintiffs suf- 342

FED. R. EVID. 702, DAUBERT, AND ITS PROGENY 44:2 or her case is based becomes generally accepted by the scientific community. 12 Frye is also discussed in 43:2 to 43:3 and in greater detail throughout 45:1 et seq. 44:2 The enactment of Fed. R. Evid. 702 and the Frye general acceptance conflict As originally enacted by Congress in 1975, Article VII of the Federal Rules of Evidence did not explicitly endorse or reject the Frye test. In its original language of enactment, Fed. R. Evid. 702 provided: 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. Between 1975 and 1993, federal courts and courts in states that had an expert testimony rule modeled after Fed. R. Evid. 702 divided sharply as to whether Fed. R. Evid. 702 adopted the Frye general acceptance standard, or replaced it, and if so with what. Six circuits held that Frye was incorporated under Fed. R. Evid. 702. 1 Four other circuits fer from terminal illness, allegedly as a result of the wrongful act of the defendant(s). Requiring a particular kind of novel expert evidence to become generally accepted before it may be introduced in court has been criticized as unfair and inequitable. Kaushal B. Majmudar, Daubert v. Merrel Dow: A Flexible Approach to the Admissibility of Novel Scientific Evidence, 7 Harv. J.L. & Tech. 187, 195 (1993). 12 Kaushal B. Majmudar, Daubert v. Merrel Dow: A Flexible Approach to the Admissibility of Novel Scientific Evidence, 7 Harv. J.L. & Tech. 187, 195 (1993). As noted by Judge Brown, [T]he Frye test was criticized because the newness of a scientific theory does not necessarily reflect its unreliability, nose counting of the scientific community could be difficult and unhelpful, and the standard delays the admissibility of new evidence simply because the scientific community has not had adequate time to accept the new theory. Harvey Brown, Eight Gates for Expert Witnesses, 36 Hous. L. Rev. 743, 779 (1999). [Section 44:2] 1 Christophersen v. Allied- Signal Corp., 939 F.2d 1106, 33 Fed. R. Evid. Serv. 1173 (5th Cir. 1991) (abrogated by, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469, 27 U.S.P.Q.2d 1200, Prod. Liab. Rep. (CCH) P 13494, 37 Fed. R. Evid. Serv. 1, 23 Envtl. L. Rep. 20979 (1993)); U.S. v. Metzger, 343

44:2 JONES ON EVIDENCE, 7TH ED held that Fed. R. Evid. 702 pre-empted Frye. 2 The Supreme Court s 1993 decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 3 which defined the trial judge as the gatekeeper for admission of expert testimony and provided a much more detailed framework for determining admissibility of the same, had a substantive impact on federal and state courts application of Fed. R. Evid. 702. As discussed below, the Daubert decision ultimately led to a substantive amendment of Fed. R. Evid. 702. Results of research conducted well over a decade after Daubert was decided and close to a decade after Fed. R. Evid. 702 was amended (to incorporate Daubert s standard) supports some commentator arguments that the choice between a Frye and Daubert standard does not make any practical difference in the context of civil litigation. 4 But, as discussed more fully in 52:1 et seq., Daubert arguably has played a role in tort reform, because it requires judges faced with tort cases in which expert testimony and presentation of scientific evidence to a jury often play a critical role to scrutinize scientific evidence more closely. 5 Thus, some post- Daubert case statistics lead researchers to conclude that 778 F.2d 1195, 19 Fed. R. Evid. Serv. 695 (6th Cir. 1985); U.S. v. Smith, 869 F.2d 348, 27 Fed. R. Evid. Serv. 938 (7th Cir. 1989); U.S. v. Solomon, 753 F.2d 1522, 17 Fed. R. Evid. Serv. 779 (9th Cir. 1985); U.S. v. Shorter, 809 F.2d 54, 87-1 U.S. Tax Cas. (CCH) 9127, 22 Fed. R. Evid. Serv. 537, 59 A.F.T. R.2d 87-449 (D.C. Cir. 1987) (abrogated by, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469, 27 U.S.P.Q.2d 1200, Prod. Liab. Rep. (CCH) P 13494, 37 Fed. R. Evid. Serv. 1, 23 Envtl. L. Rep. 20979 (1993)). 2 U.S. v. Baller, 519 F.2d 463 (4th Cir. 1975); U.S. v. Bennett, 539 F.2d 45 (10th Cir. 1976); U.S. v. Downing, 753 F.2d 1224, 17 Fed. R. Evid. Serv. 1 (3d Cir. 1985); U.S. v. Jakobetz, 955 F.2d 786, 34 Fed. R. Evid. Serv. 876 (2d Cir. 1992). 3 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469, 27 U.S.P.Q.2d 1200, Prod. Liab. Rep. (CCH) P 13494, 37 Fed. R. Evid. Serv. 1, 23 Envtl. L. Rep. 20979 (1993). 4 Edward K. Cheng & Albert H. Yoon, Does Frye or Daubert Matter? A Study of Scientific Admissibility Standards, 91 Va. L. Rev. 471, 472 73 (2005). 5 Edward K. Cheng & Albert H. Yoon, Does Frye or Daubert Matter? A Study of Scientific Admissibility Standards, 91 Va. L. Rev. 471, 472 73 (2005), citing Lloyd Dixon & Brian Gill, Changes in the Standards for Admitting Expert Evidence in Federal Civil Cases Since the Daubert Decision xv (2001) (reporting that after Daubert, [federal] judges scrutinized reliability more carefully and applied stricter 344

FED. R. EVID. 702, DAUBERT, AND ITS PROGENY 44:3 Daubert s effects in civil litigation have been pro-defendant, empowering defendants to exclude certain types of scientific evidence, substantially improving their chances of obtaining summary judgment. 6 44:3 Fed. R. Evid. 702, Fed. R. Evid. 703, and the Daubert trial court In Daubert v. Merrell Dow Pharmaceuticals, Inc., 1 two minor children and their families alleged that defendant Merrell Dow s product, Bendectin, when used by the mothers during pregnancy, caused severe limb reduction in each child. 2 Prior to trial, Merrell Dow moved for summary judgment on the basis that the plaintiffs could not show that the Bendectin did, in fact, cause the birth defects. The plaintiffs opposed the motion with testimony by eight experts based on in vitro and in vivo studies, pharmacological studies, and a reanalysis of previously published epidemiological studies. In assessing the admissibility of this evidence pursuant to the Federal Rules of Evidence, the trial court focused on Fed. R. Evid. 703, which at the time provided: Rule 703: Bases of Opinion Testimony by Experts. 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 standards in deciding whether to admit expert evidence ); Carol Krafka et al., Judge and Attorney Experiences, Practices, and Concerns Regarding Expert Testimony in Federal Civil Trials, 8 Psychol., Pub. Pol y & L. 309, 330 31 (2002) (reporting results from judge and attorney surveys that suggest greater scrutiny of scientific evidence in the wake of Daubert). 6 Edward K. Cheng & Albert H. Yoon, Does Frye or Daubert Matter? A Study of Scientific Admissibility Standards, 91 Va. L. Rev. 471, 472 73 (2005). [Section 44:3] 1 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469, 27 U.S.P.Q.2d 1200, Prod. Liab. Rep. (CCH) 13494, 37 Fed. R. Evid. Serv. 1, 23 Envtl. L. Rep. 20979 (1993). 2 Limb reduction occurs when the child is born without fully developed fingers, toes, and arms. 345

44:3 JONES ON EVIDENCE, 7TH ED evidence. 3 The Daubert trial court read Fed. R. Evid. 703 in a restrictive manner and, consistent with Frye, it held that scientific evidence to be admissible has to be generally accepted by experts in the field. The court determined that plaintiffs experts testimony failed to satisfy this test, because the testimony was based on studies that had not been published nor been subject to peer review and therefore were not generally accepted. The trial court restrictively held that any evidence other than an epidemiological study was not relevant, and that the plaintiffs experts reanalysis was inadmissible because it had not been published or subjected to peer review. 4 Having held plaintiffs evidence inadmissible, because it was not of a kind generally accepted in the scientific community, the court granted defendant Merrell Dow s motion for summary judgment. 5 The Ninth Circuit affirmed, ruling that the Frye decision meant that expert opinion based on a technique is inadmissible unless the technique is generally accepted as reliable in the relevant scientific community. 6 The Ninth Circuit agreed with the trial court that the fact that the reanalysis had not been published prevented that evidence from passing the Frye test. But, as discussed in detail in the following sections, the Supreme Court reversed the Ninth Circuit and issued its landmark Daubert decision, which remains the 3 The rule has since been amended. See 40:12. 4 Daubert, 727 F. Supp. at 575. 5 Daubert v. Merrell Dow Pharmaceuticals, Inc., 727 F. Supp. 570, 29 Fed. R. Evid. Serv. 749 (S.D. Cal. 1989), aff d, 951 F.2d 1128, Prod. Liab. Rep. (CCH) 13014, 34 Fed. R. Evid. Serv. 1145 (9th Cir. 1991), judgment vacated, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469, 27 U.S.P.Q.2d 1200, Prod. Liab. Rep. (CCH) 13494, 37 Fed. R. Evid. Serv. 1, 23 Envtl. L. Rep. 20979 (1993) and aff d, 43 F.3d 1311, Prod. Liab. Rep. (CCH) 14094, 40 Fed. R. Evid. Serv. 1236, 25 Envtl. L. Rep. 20856 (9th Cir. 1995). 6 Daubert v. Merrell Dow Pharmaceuticals, Inc., 727 F. Supp. 570, 29 Fed. R. Evid. Serv. 749 (S.D. Cal. 1989), aff d, 951 F.2d 1128, 1129 1130, Prod. Liab. Rep. (CCH) 13014, 34 Fed. R. Evid. Serv. 1145 (9th Cir. 1991), judgment vacated, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469, 27 U.S.P.Q.2d 1200, Prod. Liab. Rep. (CCH) 13494, 37 Fed. R. Evid. Serv. 1, 23 Envtl. L. Rep. 20979 (1993) and aff d, 43 F.3d 1311, Prod. Liab. Rep. (CCH) P 14094, 40 Fed. R. Evid. Serv. 1236, 25 Envtl. L. Rep. 20856 (9th Cir. 1995). 346