Weil, Gotshal & Manges LLP
The Supreme Court Establishes Standard of Review for Daubert Decisions and Reaffirms District Court
(March 1998, Product Liability Law & Strategy)
By Arvin Maskin, Konrad Cailteux
In General Elec. Co. v. Joiner,
No. 96-188, 1997 U.S. LEXIS 7503 (U.S. Dec. 15, 1997), the United States
Supreme Court resolved a conflict among the appellate courts regarding
the standard of review for the admissibility of expert evidence under Daubert.
By holding that Daubert decisions should be reviewed under the same abuse
of discretion standard applied to all other evidentiary decisions, the
Supreme Court reaffirmed the district courts' role as gatekeepers with
respect to expert evidence. In addition, the Supreme Court enhanced the
gatekeeper role it laid out for district courts in Daubert by also ruling
that the methodology used and the conclusions reached by scientific experts
are not entirely distinct from one another; in other words, while the trial
courts' focus should be on the methodologies employed by experts, and not
their conclusions, neither Daubert nor the Federal Rules of Evidence compels
a district court to admit an expert's opinion that requires too great a
leap in logic from the data supporting the expert's opinion.
The Daubert Decision
By way of background, the Supreme
Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993), held that the adoption of the Federal Rules of Evidence had
superseded the Frye decision as the standard for determining the admissibility
of expert evidence in federal courts. Daubert arose from an action to recover
for birth defects in plaintiffs' offspring, allegedly caused by plaintiffs'
prenatal ingestion of the anti-nausea drug Bendectin. Defendant was granted
summary judgment based on an expert's affidavit concluding, upon review
of the extensive published literature on the subject, that maternal use
of Bendectin had not been shown to be a risk factor for human birth defects.
509 U.S. at 582. Although plaintiffs' experts had presented testimony concluding
that Bendectin could, in fact, cause birth defects, these conclusions were
based on animal studies, pharmacological studies of the drug's chemical
structure, and a "'reanalysis'" of previously published epidemiological
studies, and did not, according to the District Court, satisfy the Frye
general acceptance standard governing the admission of scientific evidence.
Id. at 583. The Court of Appeals for the Ninth Circuit affirmed, and the
Supreme Court granted certiorari in light of conflicts among the appellate
courts regarding the proper standard for the admission of expert testimony.
Id. at 584-85.
The Supreme Court held that the Frye general acceptance standard was superseded
by the adoption of the Federal Rules of Evidence, primarily Rule 702 (if
scientific or technical knowledge will assist the trier of fact to understand
the evidence or determine a fact, "a witness qualified as an expert
by knowledge, skill, experience, training, or education, may testify thereto
in the form of an opinion") (509 U.S. at 587-88), as well as Rules
402 ("All relevant evidence is admissible ....") and 401 (defining
relevant evidence as that which tends to make "the existence of any
fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence").
The Supreme Court explained that,
under the Federal Rules of Evidence, "any and all scientific testimony
or evidence admitted [must be] not only relevant, but reliable." 509
U.S. at 589. With regard to reliability, the Court held that proposed expert
testimony must be derived from the scientific method and supported by appropriate
validation ("'good grounds'"); in other words, Rule 702's requirement
that an expert's testimony pertain to scientific knowledge established
a standard of evidentiary reliability. Id. at 589-90. Regarding relevance,
the Court found that Rule 702 required that there must be a valid connection
to the pertinent inquiry -- it must "'fit'" the facts of the
case -- as a precondition to admissibility. Id. at 591-92.
To determine relevance and reliability, the Supreme Court charged the trial
judge with screening proffers of expert evidence. These determinations,
according to the Supreme Court, entail a preliminary assessment of whether
the methodology underlying the testimony is scientifically valid and can
properly be applied to the facts in issue. Daubert suggested several factors
to aid the trial judge in deciding whether a particular scientific method
or technique is reliable: (1) whether it can be tested; (2) whether it
has been published or subjected to peer review; (3) whether the known or
potential rate of error associated with the technique is acceptable; and
(4) whether the method is generally accepted in the scientific community.
Id. at 593-94. The Court added, "[w]e are confident that federal judges
possess the capacity to undertake this review." Id. at 593.
Indeed, since Daubert was decided,
district courts have begun to act as gatekeepers.1 However, the appellate
courts split over which standard of review should be applied to a district
court's Daubert rulings. While some appellate courts held that the abuse
of discretion standard should apply to evidentiary rulings, others found
that such rulings should be held to a heightened standard of review precisely
because they deal with expert testimony. In addition, given the apparent
emphasis in Daubert on methodology over conclusions, plaintiffs' counsel
in many litigations, especially products liability and toxic torts cases,
have tried to use that distinction to get around Daubert by arguing that
their experts employed proper scientific methodologies, even if their conclusions
were somewhat specious. In Joiner the Supreme Court resolved not only the
split among the appellate courts regarding the standard of review, but
also shut the door on plaintiffs' attempts to circumvent the Daubert holding.
The Joiner Case
In Joiner, the respondent (Joiner)
was employed as an electrician by the Water & Light Department of Thomasville,
Georgia (City). His duties included repairing electrical transformers,
in the course of which he often came into contact with the mineral oil-based
dielectric fluid used in transformers as coolants. In 1983, ten years after
he started the job, it was discovered that the fluid in some of the transformers
was contaminated with PCBs; in 1991 Joiner was diagnosed with small-cell
lung cancer.2 Joiner brought suit against various manufacturers of electrical
equipment and related materials, alleging that his disease was "'promoted'"
by his workplace exposure to polychlorinated biphenyls (PCBs) and "derivative"
furans and dioxins that were manufactured by, or placed in products manufactured
by, the manufacturers.
The manufacturers moved for summary judgment, contending that there was
no evidence that Joiner was significantly exposed to PCBs, furans or dioxins,
and that there was no admissible scientific evidence that PCBs promoted
Joiner's cancer. As the plaintiffs did in Daubert, Joiner responded with
affidavits from experts supporting his claim that PCBs, furans and dioxins
can promote cancer, and that Joiner's exposure to those chemicals was likely
responsible for his cancer.
The District Court found that Joiner's
experts had failed to demonstrate a link between exposure to PCBs and small-cell
lung cancer.3 Moreover, because Joiner's experts' opinions did not rise
above "subjective belief or unsupported speculation," the District
Court ruled that their testimony was inadmissible. 864 F. Supp. 1310, 1326
(N.D. Ga. 1994). Having struck Joiner's expert testimony, the District
Court found that the plaintiff could not prove causation, and thus granted
the manufacturers' motion for summary judgment. Id. at 1326-27.
The Eleventh Circuit, however, reversed, holding that because the Federal
Rules of Evidence governing expert testimony "display a preference
for admissibility, ...a particularly stringent standard of review"
was required with regard to the trial court's exclusion of testimony. 78
F.3d 524, 529 (1996). Applying this standard, the Eleventh Circuit found
that the District Court had committed two fundamental errors when it excluded
the testimony of Joiner's experts. First, the District Court erred when
it drew different conclusions from the research than did Joiner's experts.The Eleventh Circuit explained that "the gatekeeping responsibility
of the trial courts is not to weigh or choose between conflicting scientific
opinions, or to analyze and study the science in order to reach its own
conclusions". Id. Rather, a district court should limit its role to
determining the "legal reliability of proffered expert testimony"
and let the jury decide the correctness of competing expert opinions. Id.
at 533. Second, the District Court's finding that there was no genuine
issue as to whether Joiner had been exposed to furans and dioxins also
was in error, because, according to the Eleventh Circuit, testimony in
the record supported such exposure. Id. at 534.
The Supreme Court's Decision
The Supreme Court reversed the Eleventh Circuit on the issue of admissibility
of expert testimony.4 The Court held that the issue of admissibility of
expert testimony is reviewable under the abuse of discretion standard;
in applying an overly "'stringent'" review to the District Court's
exclusion of Joiner's experts' testimony, the Eleventh Circuit failed to
give the district court the deference that is the basis of an abuse of
discretion review. U.S. LEXIS 7503 at *12-13.5
In reaching this finding, the Supreme Court first rejected the Eleventh
Circuit's suggestion that, because Daubert concerns the exclusion of scientific
testimony, it altered the standard that appellate courts do not reverse
district courts in cases involving evidentiary rulings unless the ruling
is manifestly erroneous. 1997 U.S. LEXIS 7503 at *11. The Supreme Court
noted that Daubert did not even address the standard of appellate review
for evidentiary rulings; although Daubert allows district courts to admit
a somewhat broader range of scientific testimony than would have been admissible
under Frye, it left in place the trial judge's "'gatekeeper'"
role in screening such evidence. Id. at *12. Moreover, the Supreme Court
held that a court of appeals applying "abuse of discretion" review
may not categorically distinguish between rulings which allow expert testimony
and rulings which do not. Id..
The Supreme Court also rejected
Joiner's argument that, because the granting of summary judgment was "'outcome
determinative'", it should have been subjected to a more searching
standard of review. The Supreme Court pointed out that, on a motion for
summary judgment, disputed issues of fact are resolved against the moving
party, in this case the manufacturers. However, the question of admissibility
of expert testimony is a legal question and does not involve an issue of
fact, and is therefore reviewable under the abuse of discretion standard.
After ruling on the standard of review, the Supreme Court then went on
to find that the District Court had not abused its discretion by excluding
Joiner's experts' testimony. The Supreme Court concluded that the studies
relied upon by Joiner's experts (including animal studies in which infant
mice developed alveologenic adenomas following highly concentrated, massive
injections of PCBs directly into their stomachs) were too dissimilar to
the facts presented (an adult human who developed small-cell carcinoma
allegedly as a result of exposure to PCBs by a different route and on a
much smaller scale) to support the experts' conclusion that Joiner's exposure
to PCBs "'promoted'" the development of his small-cell lung cancer,
and thus was properly excluded. U.S. LEXIS 7503 at *16, *19.
Of even greater significance, the
Supreme Court rejected Joiner's claim that, because the District Court's
disagreement was with the conclusions that his experts drew from the studies
on which they relied, the District Court committed reversible error. Joiner
argued that the District Court went beyond a review of his expert's methodology
and conducted an analysis of his experts' conclusions, which exceeded Daubert's
stricture that the "focus ...must be solely on the principles and
methodology, not on the conclusion". Daubert, 509 U.S. at 595. But
the Supreme Court soundly rejected Joiner's argument and made clear that,
[C]onclusions and methodology are
not entirely distinct from one another. ...Nothing in either Daubert or
the Federal Rules of Evidence requires a district court to admit opinion
evidence which is connected to existing data only by the ipse dixit of
the expert. A court may conclude that there is simply too great an analytical
gap between the data and the opinion offered.
U.S. LEXIS 7503 at *19.
The District Court's Daubert
Gatekeeping Role After Joiner
By holding that it is not an abuse of discretion for a trial court to consider
whether the conclusions drawn by the experts, even if proper scientific
methodologies are employed, make too great a leap from the data presented,
the Supreme Court has broadened the power of the district courts to consider
and, if necessary, exclude 'junk' scientific testimony. Before Joiner,
plaintiffs' counsel were able to use Daubert's instruction to district
courts to focus on proper methodology as a shield to protect some of the
more dubious opinions of their experts. Now, the district courts no longer
need to limit their gatekeeping role only to examining the methodologies
employed by experts; if in the screening of expert evidence the district
courts determine that an expert's opinion requires too great a leap in
logic from the data presented, even if the expert employed an accepted
methodology, then the district courts can and should exclude that expert's
testimony. Thus, Joiner enhances and strengthens the role of the trial
judge in determining the admissibility of expert testimony, and is a resounding
endorsement of the district court's Daubert "gatekeeping" powers.6
However, Joiner did not resolve another fundamental question stirring in
the courts regarding Daubert: whether it applies to all proffers of expert
testimony or only to those involving "scientific" evidence or
"novel" issues? Led by the Tenth Circuit, several courts have
held that Daubert's "gatekeeping" criteria do not apply to all
expert testimony, but rather are "applicable only when a proffered
expert relies on some principle or methodology. In other words, application
of the Daubert factors is unwarranted in cases where expert testimony is
based solely upon experience or training." Compton v. Subaru of America,
Inc., 82 F.3d 1513, 1518 (10th Cir.), cert. denied, U.S. , 117 S. Ct. 611
In Compton, the defendant attempted
to exclude the testimony of plaintiff's design expert in an action involving
the allegedly improper design of an automobile involved in an accident.
Notwithstanding the district court's serious reservations concerning the
expert's conclusions, the district court allowed the expert to testify.
On appeal, defendant maintained that the expert testimony should have been
excluded under Daubert because "it lacked evidentiary reliability
and was not grounded in any particular reasoning or methodology."
Compton, 82 F.3d at 1517. Plaintiff argued that Daubert did not apply because
the expert's conclusions were based on his experience and not on scientific
methods or procedures. Id.
The Tenth Circuit determined that
the Daubert analysis was limited to experts who rely on some principle
of methodology. Id. at 1518. Thus, where an expert relies upon her own
experience, "Rule 702 merely requires the trial court to make a preliminary
finding that proffered expert testimony is both relevant and reliable while
taking into account [that] the inquiry envisioned by Rule 702 is a flexible
one." Id. at 1519 (internal quotations omitted). Because the expert's
testimony in Compton was not based upon an particular methodology or technique,
the Tenth Circuit determined that Daubert did not apply, that the testimony
was admissible, and that issues of credibility would be decided by the
jury. Id. at 1519-1520.7
Other circuit courts have rejected the Compton analysis and its limited
view of Daubert. For example, in Watkins v. Telsmith, Inc., 121 F.3d 984,
989-91 (5th Cir. 1997), the Fifth Circuit held that Daubert applied to
determine whether the testimony of an engineering expert would be submitted
to the jury. The Watkins court rejected Compton's conclusion that Daubertapplied only to unique or controversial methodologies or techniques and
held that, although Daubert concerned scientific evidence, "the decision's
focus on a standard of evidentiary reliability and the requirement that
proposed expert testimony must be appropriately validated are criteria
equally applicable to technical, or other specialized knowledge."
Id. at 990-91.
Watkins recognized that not every
factor listed in Daubert would apply to all expert testimony, but determined
that "the district court's preliminary assessment of whether the reasoning
or methodology underlying the testimony is scientifically valid and of
whether that reasoning or methodology properly can be applied to the facts
in issue is no less important" under those circumstances. Id. Therefore,
the district court's assessment would apply equally whether the testimony
concerned economic valuation, advertising psychology, or engineering. Id.
Indeed, "application of the Daubert factors is germane to evaluating
whether the expert is a hired gun or a person whose opinion in the courtroom
will withstand the same scrutiny that it would among his professional peers."
Id. at 991.8
Some circuits have even rendered what appear to be conflicting decisions
on the applicability of Daubert to non-scientific experts. For example,
in McKendall v. Crown Control Corp., 122 F.3d 803 (9th Cir. 1997), one
panel of the Ninth Circuit held that Daubert applied only to testimony
bearing on "scientific" knowledge and "is confined to the
evaluation of "scientific" expert testimony." Id. at 806.
Thus, that panel of the Ninth Circuit refused to apply Daubert to the testimony
of a mechanical engineer.9 However, another panel of the Ninth Circuit
opined that "Daubert's holding applies to all expert testimony, not
just testimony based on novel scientific methods." Southland Sod Farms
v. Stover Seed Co., 108 F.3d 1134, 1142 n. 8 (9th Cir. 1997).
Notwithstanding the apparent conflicts
among courts regarding the applicability of Daubert to non-scientific experts,
the Supreme Court's language in Daubert strongly suggests that the Daubert
analysis applies to all expert testimony. To be sure, Daubert concerned
the admissibility of scientific evidence and, therefore, the Supreme Court
focused upon scientific evidence in rendering its opinion. However, the
Supreme Court specifically noted that "Rule 702 also applies to technical,
or other specialized knowledge. Our discussion is limited to the scientific
context because that is the nature of the expertise offered here."
Daubert, 509 U.S. at 590 n.8. Furthermore, the Court noted that:
Although the Frye decision itself focused exclusively on "novel"
scientific techniques, we do not read the requirements of 702 to apply
specially or exclusively to unconventional evidence. Of course, well-established
propositions are less likely to be challenged than those that are novel,
and they are more handily defended.
Id. at 593 n. 11.
Accordingly, based upon the language
it utilized in Daubert, the Supreme Court will likely apply the Daubert
gatekeeping analysis to all expert testimony, not just "novel"
or "scientific" evidence. Thus, it is imperative that all litigators
become familiar with the Daubert opinion, and utilize the Daubert factors
to examine the admissibility of all expert testimony, scientific or otherwise.
1For example, on remand in Daubert,
the Ninth Circuit again excluded plaintiffs' expert evidence and even added
another factor for the courts to consider in determining the reliability
of expert evidence: whether the expert's testimony is based on pre-existing
independent research, or whether it is based on research conducted specifically
for litigation. Daubert, 43 F.3d 1311, 1317 (9th Cir. 1995).
2Joiner had been a smoker for about
a decade, his parents had both been smokers, and there was a history of
lung cancer in his family.
3The District Court also ruled that there was no genuine issue as to whether
Joiner had been exposed to furans and dioxins. 864 F. Supp. 1310, 1326
(N.D. Ga. 1994).
4The issue of Joiner's exposure
to the so-called "derivative" furans and dioxins remains unresolved.
While the Court of Appeals reversed the District Court's holding that there
was no issue as to whether Joiner had been exposed to furans and dioxins,
the manufacturers did not challenge this determination in their petition
to the Supreme Court. The Court remanded the case for proceedings on this
issue. 1997 U.S. LEXIS 7503 at *20.
5The Supreme Court's decision on
the standard of review was unanimous.
6In a concurring opinion, Justice
Breyer recognized the inherent difficulty trial judges face in making determinations
about complicated scientific or technical evidence, and noted that judges
have increasingly found in the Rules of Evidence and Civil Procedure ways
to overcome such hurdles, among them the appointment of Rule 706 scientific
advisory panels, pretrial hearings where potential experts are subject
to examination by the court, and the use Rule 16 pre-trial conference authority
to narrow the scientific issues in dispute.
7See also Freeman v. Case Corp., 118 F.3d 1011, 1016 n.6 (4th Cir. 1997)
(finding Daubert analysis unwarranted where expert relies on his experience
and training and not a particular methodology to reach his conclusions);
United States v. Jones, 107 F.3d 1147, 1158 (6th Cir.), cert. denied, U.S.
, 117 S. Ct. 2527 (1997) (Daubert analysis does not apply to handwriting
expert because Daubert does not apply to expert evidence outside the scientific
realm); Liriano v. Hobart Corp., 949 F. Supp. 171, 176-177 (S.D.N.Y. 1996)
(relying on Compton and finding that where expert testimony is based on
experience or training, Daubert would not apply).
8See also Tyus v. Urban Search
Management, 102 F.3d 256, 263-264 (7th Cir. 1996), cert. denied, U.S. ,
117 S. Ct. 2409 (1997) (rejecting Compton and finding that Daubert and
its framework for assessing expert testimony is "appropriate for all
kinds of expert testimony" -- in that case a psychologist); and Peitzmeier
v. Hennessy Indus., Inc., 97 F.3d 293 (8th Cir. 1996), cert. denied, U.S.
, 117 S. Ct. 1552 (1997) (rejecting argument that Daubert applies only
to novel scientific testimony and holding expert testimony regarding design
defect inadmissible under Daubert).
9The McKendall court, however, did acknowledge that Daubert strongly urges
district courts to "pay particular attention to the reliability of
the expert and his or her testimony. In that sense Daubert applies to all
expert testimony." McKendall, 122 F.3d at 860 n.1. Thus, even the
McKendall panel appears to acknowledge that the "gatekeeping"
principles espoused in Daubert apply in every case to screen expert testimony.
Reprinted with permission from the March 1998 edition of Product Liability Law & Strategy © 1998 ALM Properties, Inc. All Rights Reserved. Further duplication without permission is prohibited.