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In Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), the Supreme Court revamped the standards for admitting opinion testimony in federal court. The court construed Federal Rule of Evidence 702 as announcing a new reliability test for the admissibility of expert testimony. In one passage in his lead opinion, Justice Blackmun referred to “the ‘liberal thrust’ of the federal rules and their ‘general approach of relaxing the traditional barriers to opinion testimony.’ ” Id. at 588. In another, he mentioned “ the Rules’ permissive” tone. Id. at 589. Ironically, ‘Daubert’ has toughened standards The irony, of course, is that on balance, Daubert seems to have toughened the standards for admitting expert testimony: “[A] 1991 Federal Judicial Center survey, conducted shortly before the Court’s opinion in Daubert, found 25 percent of judges reporting that they had excluded flawed expert testimony in their most recent trial. By 1998, a year after the Daubert opinion, the figure had climbed to 41 percent. A Rand Institute report focusing on cases from the Third Circuit . . . found that among those cases in which expert evidence was challenged, ‘the exclusion rate . . . for evidence based on physical science in a product liability case jumped from 53 percent during the two years before Daubert to 70 percent between mid-1995 and mid-1996.’ “ D. Kaye Bernstein & J. Mnookin, The New Wigmore: Expert Evidence � 6.4.1, at 224 (2004). That impact of Daubert has become a matter of common knowledge in the legal profession. Shaw, Study Reveals Judges Examine Expert Testimony Thoroughly, L.S. Daily J., Oct. 25, 2000, at 4; Judges Are Excluding More Expert Testimony, Lawyers Weekly USA, Oct. 30, 2000, at 11. The focus, though, has been almost exclusively on expert opinion testimony. The implicit message seems to be that while Rule 702 may have raised the bar for expert opinions, at the very least Rule 701 permits the admission of lay opinions as liberally as they were acceptable at common law. On closer scrutiny, however, even that assumption is debatable. At common law, the courts routinely received three types of lay opinions. First, the courts accepted collective fact or shorthand-rendition opinions on subjects such as a person’s age and a car’s speed. McCormick, Evidence � 11, at 47 (5th ed. 1999). Laypersons commonly draw inferences on such topics. Moreover, there is an element of necessity for admitting these opinionated statements. If the rule were otherwise, lay witnesses would find it impossible to verbalize all of the underlying primary data-all their prior observations of motor vehicles-that led them to form their opinion. Since the witness cannot articulate all that data, he or she cannot put the jury in the same position to draw the inference; the stark choice is either admitting the lay opinion or denying the jury the benefit of the witness’s observation. Similar reasoning underpins the courts’ recognition of a second category of admissible lay opinion, namely, that of the skilled lay observer. Id. By way of example, a layperson who is familiar with an indivdiual’s handwriting style may opine as to whether the signature on a letter was written by that individual. The required foundation is a showing of the witness’s familiarity with the individual’s handwriting. As in the case of case of shorthand-rendition opinions, it is impractical to ask the skilled lay observer to verbalize all the data about her prior observations of the individual’s handwriting. Although shorthand rendition and skilled lay observer are the two most commonly encountered types of admissible lay opinions, common law recognized a third category. The courts often allowed owners to testify about the value of their personal or real property. Some courts extended the same liberal practice to a person’s testimony about the value of his or her services. General Aggregate Corp. v. La Brayere, 666 S.W.2d 901 (Mo. App. Ct. 1994). In these jurisdictions, the courts liberally admitted this sort of testimony. As a practical matter, the only required foundation was proof of the witness’s status as the owner of the property. Arkansas La. Gas Corp. v. Burton, 10 Ark. App. Ct. 419, 664 S.W.2d 894 (1984). The witness’s proponent did not have to establish the witness’s qualification as an expert. Citizens Elec. Corp. v. Amberger, 591 S.W.2d 736 (Mo. App. Ct. 1979). The witness could opine even if he confessed that he was ignorant of market values in the general area. Arkansas La. Gas Co. v. Cates, 10 Ark. App. Ct. 426, 664 S.W.2d 897 (1984). For that matter, the witness was allowed to express an opinion about the value of his own property even when it was perfectly clear that he would not be permitted to express an expert opinion about the value of other persons’ property in the same area. Bower v. Processor and Chem. Serv., 672 S.W.2d 30 (Texas App. Ct. 1984); Southwest Craft Center v. Heilner, 670 S.W.2d 651 (Texas App. Ct. 1984). Roughly nine-tenths of the states now have statutory schemes governing the admissibility of evidence in their courts. Some statutory schemes continue the common law practice of admitting the third type of lay opinion. California Evidence Code � 800 is illustrative. That statute reads: “If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: (a) Rationally based on the perception of the witness; and (b) Helpful to a clear understanding of his testimony.” The official California Law Revision Commission Comment to � 800 states that the statute does not affect the existing [common law] rule that a nonexpert witness may give his opinion as to the value of his property or the value of his own services. The words “such an opinion as is permitted by law” in Section 800 make this clear. California, however, adopted its evidence code in the 1960s. The federal rules were adopted in the 1970s, and today more than 40 states have codes more or less patterned after the federal rules. At first blush, it would seem that the enactment of the federal rules, including Rule 701, would have no effect at all on the admissibility of the third type of lay opinion testimony. The Advisory Committee Note to Rule 701 indicates that the drafters used � 800 as one of the models for drafting Rule 701. Indeed, the wording of Rule 701 is virtually identical to that of � 800. However, unlike the comment to � 800, the note accompanying Rule 701 does not expressly endorse the continued admissibility of owners’ lay valuation opinions. There is indeed a reference to that type of opinion, but the rub is that that reference appears in the note accompanying Rule 702, governing expert opinions. Thus, the drafters apparently intended that the courts could classify this type of valuation opinion as a species of expert testimony. Of course, prior to 1999, the proponent of such a valuation opinion could have argued that even if the testimony falls into the expert category, it was exempt from Daubert-style scrutiny because it was nonscientific expertise. Rule 702 refers in the alternative to “scientific, technical, or other specialized knowledge.” The wording of the statute permitted the proponent to contend that only purportedly scientific testimony is subject to Daubert. That contention, though, is no longer tenable. In 1999, the court handed down its decision in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). There the court rejected the contention that nonscientific expertise is wholly exempt from scrutiny. On the one hand, the court acknowledged that the trial judge has discretion to use different factors to evaluate the reliability of nonscientific expert testimony. On the other hand, the court emphasized that the proponent of any type of expert testimony must demonstrate that it amounts to reliable “knowledge.” Moreover, in 2000, Rule 702 was amended. The accompany Advisory Committee Note indicates that Daubert‘s reliability requirement extends to “all types of expert testimony.” Admittedly, the courts continue to routinely admit these valuation opinions without demanding anything approaching an expert testimony foundation. Loughridge v. Chiles Power Supply Co. Inc., 431 F.3d 1268 (10th Cir. 2005); Gregg v. United States Industries, 887 F.2d 1462 (11th Cir. 1989); U.S. v. 215.7 Acres of Land in Kent Cty., Del., 719 F.Supp. 273 (D. Del. 1989). To date, neither the courts nor the advocates appearing before seem to have recognized the issue. ‘Ain’t broke, don’t fix it’ approach may not last Of course, we could take the approach, “If it ain’t broke, don’t fix it.” To date, there has been no outcry that this is a neglected issue of transcendent importance. However, given the incidence of this type of testimony, it is predictable that sooner or later the courts will be confronted with this question. In the meantime before clarification, to be on the safe side, proponents offering this type of valuation testimony should get in the habit of laying more extensive foundations. They should not be content to establish the witness’ status as the owner of the property. In addition, they ought to elicit the witness’s testimony about the length of the period of ownership, the length of the witness’s residence in that geographic area, and the extent to which the witness has monitored property values in the area. None of that foundational material was required at common law. However, if the adoption of the federal rules has wrought the change strongly suggested by the Note to Rule 702, presenting those foundational facts may be essential to introducing an owner’s valuation opinion. Edward J. Imwinkelried is the Edward L. Barrett Jr. Professor of Law at the University of California, Davis. He is co-author of Scientific Evidence (Lexis Law Pub. 3d ed. 1999).

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