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We have now had three U.S. Supreme Court decisions, Daubert in 1993, Joiner in 1997 and Kumho in 1999 — and a 2000 amendment to Federal Rule of Evidence 702 — addressing the question of the standards for admitting expert testimony. Even with the benefit of the amendment and those cases, there are still areas of uncertainty in the law governing expert evidence.

However, in some cases, the focus is emerging, thanks to insights from leading commentators on the subject, such as Professor D. Michael Risinger. In one of his articles, Risinger helped clarify one issue in particular: What must the proponent validate—the general trustworthiness of the discipline the expert belongs to or the reliability of the specific theory or technique the expert is relying on? Risinger, “Defining the ‘Task at Hand’: Non-Science Forensic Science After Kumho Tire Co. v. Carmichael,” 57 Wash. & Lee L. Rev. 767 (2000).

Risinger makes a strong case that in applying the new validation test, the trial judge should focus narrowly on the precise theory or technique the expert proposes to testify about.

The narrow focus required by the high court

The Daubert-Joiner-Kumho trilogy contains language pointing to the more sensible conclusion that the proponent need demonstrate only that the expert’s theory or technique can enable the expert to accurately make the specific determination that he or she proposes to testify about.

As Risinger has emphasized, Justice Harry A. Blackmun wrote in the formal summary at the end of his opinion in Daubert that the proponent’s foundation must convince the trial judge that the expert’s theory or technique is sufficiently “reliable” to perform “the task at hand.” Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 597 (1993). Earlier in the opinion, in the process of explaining the requirement that the theory or technique “fit” the case, the justice added that the theory or technique needs “a valid scientific connection to the pertinent inquiry.” Id. at 591-92.

Joiner lends itself to the same interpretation as Daubert. In Joiner, Chief Justice William H. Rehnquist analyzed the question of whether the animal studies cited by the plaintiff were an adequate basis for the expert’s opinion as to the cause of Robert K. Joiner’s small-cell lung cancer. The chief justice initially listed the criticisms of the animal studies. The chief justice then wrote:

“Respondent (plaintiff) failed to reply to this criticism. Rather than explaining how and why the experts could have extrapolated their opinions from these seemingly far-removed animal studies, respondent chose ‘to proceed as if the only issue [was] whether animal studies could ever be a proper foundation for an expert’s opinion.’ 864 F. Supp., at 1324. Of course, whether animal studies could ever be a proper foundation for an expert’s opinion was not the issue. The issue was whether these experts’ opinions were sufficiently supported by the animal studies on which they purported to rely.” General Electric Co. v. Joiner, 522 U.S. 136, 144 (1997). The Kumho opinion is cast in the same mold. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). In reviewing the foundation laid by the plaintiffs for Carlson’s expert opinion, Justice Stephen Breyer engaged in a highly particularized analysis:

“[C]ontrary to [plaintiffs'] suggestion, the specific issue before the [trial] court was not the reasonableness in general of a tire expert’s use of a visual and tactile inspection to determine whether overdeflection had caused the tire’s tread to separate from its steel-belted carcass. Rather, it was the reasonableness of using such an approach, along with Carlson’s particular method of analyzing the data thereby obtained, to draw a conclusion regarding the particular matter to which the expert testimony was directly relevant.”

The justice acknowledged that “as a general matter, tire abuse may often be identified . . . through visual or tactile inspection of the tire.” However, Carlson claimed to have developed a more “particular” method-namely, that there are four characteristic signs of tire abuse and that the absence of at least two of the signs indicates that the accident was caused by a manufacturing defect in the tire. A bit later in the opinion, the justice emphasized that Carlson had not rested his opinion simply on the general theory that in the absence of evidence of abuse, a defect will normally have caused a tire’s separation. Rather, the expert employed a more specific theory to establish the existence of such abuse.

Breyer underscored that “the question before the trial court was specific, not general.” Restricting the validation requirement to the specific theory or technique the expert relies on is not only consistent with most of the language in the opinions forming the trilogy, but is also in accord with epistemological views generally held in our society. Any other interpretation of the trilogy would lead to the admission of junk expertise as well as to the exclusion of demonstrably reliable evidence.

Assume, for example, that the expert belongs to an established field of science in which there is a huge body of literature documenting quality experimentation validating many of the propositions circulating in the field. Yet at any given time, the discourse in the field will undoubtedly include a spectrum of propositions varying widely in their reliability. In some cases, the propositions have such substantial supporting data that we can be relatively confident that we “know” the proposition to be true, at least as a working assumption in everyday life and industry. However, the discourse is also likely to include unsubstantiated conjectures, and worse still, speculations that will later be exposed as invalid.

At one extreme, it would be premature to permit testimony about any theory circulating in the field simply because many, if not most, of the propositions being discussed in the field’s discourse have passed the muster of empirical validation. Consider, for example, forensic pathology. The courts routinely accept pathologists’ testimony on a wide range of subjects. Giannelli & Imwinkelried, Scientific Evidence 19-10(B) (3d ed. 1999). Judicial receptivity to pathologists’ opinions on many subjects, such as the estimation of stature from skeletal remains, is justifiable, since there is a substantial body of research investigating the reliability of those estimations. However, the literature in the pathology field also includes discussions of many novel conjectures, especially with respect to the determination of time of death. Id. at 19-8(A). Despite the respected status of the field of forensic pathology, it would be fallacious to leap to the conclusion that pathologists should be allowed to testify about any theory that has garnered a measure of attention in the field.

On the other hand, it is foolish to bar all testimony even about such maligned fields as astrology-one of the areas of claimed expertise that Breyer cited in Kumho as a classic example of a discipline that “itself lacks reliability.” 526 U.S. at 151. Suppose that a testator left a substantial bequest to an institute for the express purpose of “fostering the study of astrology.” The law of wills allows testamentary gifts for the purpose of promoting any lawful activity.

Although most Americans may have no faith in astrological predictions, the study of astrology is perfectly lawful. Assume further that at some point after the testator’s death, the heirs bring a challenge, alleging that the institute is no longer using the bequeathed funds for the purpose specified in the decedent’s will. In addition to hearing testimony about the manner in which the institute was spending the funds, the court could undoubtedly accept testimony from experienced astrologers as to whether the funded activities related to “astrology,” as that term is generally understood by its avowed practitioners. To adjudicate the dispute, there is no need for the court to make a global judgment about the scientific reliability of astrologers’ predictions. Rather, the “task at hand” is deciding whether the proffered witness is familiar enough with the state of the discipline to determine whether the funded activities in any way relate to the discipline.

It is neither necessary nor sufficient for a judge passing on the admissibility of an expert’s testimony to make a global judgment about the general reliability of the expert’s discipline. Even if the field has amassed a huge body of research verifying many of the propositions relied on by experts in the field, the proponent should be required to lay a foundation demonstrating the reliability of the specific technique the expert proposes to use to perform the “task at hand.”

The judge cannot substitute bias for analysis

Conversely, even when the field has little or no research to validate its leading tenets, the judge cannot substitute bias for an analysis of the question of whether the proponent has laid a foundation demonstrating the reliability of the expert’s use of a specific theory or technique to make a particular determination. In short, the judge’s focus ought to be narrow and precise when the judge defines what must be validated.

It is comforting that some of the issues in this area of law are becoming settled. When Blackmun wrote in Daubert that “arguably, there are no certainties in science” (509 U.S. at 590), he helped the law take a huge stride toward a more realistic understanding of the limits of the scientific methodology. Bert Black, “The Supreme Court’s View of Science: Has Daubert Exorcised the Certainty Demon?,” 15 Cardozo L. Rev. 2129 (1994). Daubert thus reflects the realization that we should “cast off the naive doctrine that all science is necessarily true.” John Ziman, Reliable Knowledge: An Exploration of the Grounds for Belief in Science 2 (1978).

We have to sharpen our focus and scrutinize the specific theory or technique that the expert contemplates testifying about. Thanks to Risinger, we can now see more clearly that that theory or technique should be the target of Daubert-Kumho analysis.

Edward J. Imwinkelried is a professor at the University of California, Davis School of Law and the co-author of Scientific Evidence (3d ed. 1999).

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