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The law of expert testimony is in flux. In Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), the U.S. Supreme Court addressed the foundational testimony the expert must give about the theory, technique or methodology on which he or she proposes to rely. The court explicitly abandoned the traditional general-acceptance test for the admissibility of scientific testimony and substituted a validation standard. On Dec. 1, 2000, Federal Rule of Evidence 702 was amended. The amendment speaks to another element of the foundation for expert testimony. It now requires that the proponent show the expert has properly applied the methodology to the facts of the instant case. A LOW-PROFILE CHANGE IN EXPERT-TESTIMONY LAW In part because those changes were explicit, they have attracted a good deal of attention. However, there is arguably another change in progress in expert-testimony law that has garnered much less attention — a toughening of the standards for determining whether a witness qualifies as an expert. When an attorney proffers expert testimony, the threshold question is whether the witness qualifies as an expert. The standard for qualification as an expert is undergoing an unheralded, but nevertheless important, change. At first, it might appear that there has been no change at all in this respect. After all, the Daubertcourt did not avow any intention to make the qualification standard more rigorous. Nor is there any mention of such an intent in either the text of amended Rule 702 or the new accompanying advisory committee note. We have to look beyond the letter of the formal rule, however, and determine what is actually happening in the reported cases. It is true that even after the adoption of the Federal Rules in 1975, many courts continued to repeat the traditional bromides about the qualification standard: The standard is “liberal” ( Government of V.I. v. Sampson, 94 F. Supp.2d 639 (D.V.I. 2000)); to qualify as an expert, the witness need only have knowledge or skill beyond that of the average layperson ( Aloe Coal Co. v. Clark Equipment Co., 816 F.2d 110 (3d Cir.), cert. denied, 484 U.S. 853 (1987)); the expert need not be a specialist ( Wheeler v. John Deere Co., 935 F.2d 1090 (10th Cir. 1991)); and any doubts should be resolved in favor of finding the witness qualified ( In re Agent Orange Product Liability Litigation, 611 F. Supp. 1267 (E.D.N.Y. 1985)). But change is afoot. To be sure, in a few instances the instrument of change has been a statute. For example, for medical malpractice cases, many states have special legislation prescribing the qualifications of expert witnesses. E.g., Mich. C.L.A. � 600.2169. For instance, under California Health and Safety Code � 1799.110(c), in cases alleging emergency-care medical malpractice, “the court shall admit expert medical testimony only from physicians and surgeons who have had substantial professional experience within the last five years while assigned to provide emergency medical coverage in a general acute care hospital emergency department.” Yet for the most part, the change has been driven by case law. The cases do not announce a categorical rule that a generalist always qualifies as an expert. On closer scrutiny, the cases hold that the evaluation of the sufficiency of the witness’s qualifications is entrusted to the trial judge’s discretion. Mercado v. Wollard Aircraft Equipment Inc.,574 F.2d 654 (1st Cir. 1978). In many cases in the past, that discretion was exercised in favor of permitting testimony by generalists; and that exercise of discretion was upheld on appeal. However, there is certainly a plausible argument that today it is more justifiable for the courts to insist on a showing that the witness has expertise highly relevant to the precise issue before the court. There has never been more specialization within the scientific and medical communities. There are more than 4,000 regularly published scientific and medical journals. There is not only more information available now; thanks to the Internet, the information is also more accessible than ever before. No generalist can even hope to stay abreast of all the major technical developments in the broad domain of science or medicine. The sheer volume of accessible expert data generates pressure for specialization. COMPLEX CASES NEED MORE THAN GENERAL PRACTITIONERS Shortly after the rendition of Daubert, leading commentators called on the courts to exercise their discretion in favor of toughening the qualification standard. In 1994, the Federal Judicial Center released the first edition of its Reference Manual on Scientific Evidence. (The second edition of the manual was released in 2000.) The manual contained an article by Professor Margaret Berger, the former reporter for the Advisory Committee on the Federal Rules of Evidence. In that article, Prof. Berger acknowledged the traditional generalization that an expert need not be a specialist. However, she cautioned that in a given case, the nature of the specific scientific issue presented might render “the usual nonspecialization inapplicable.” Prof. Berger wrote: “How much of a specialist the proffered witness needs to be will depend on the relationship between the expert’s particular expertise and the subject matter of the [specific] opinion that is being offered.” In late 2000, shortly after the release of the second edition of the manual, Professor Paul Rothstein remarked, “[I]t’s no longer good enough to have a general practitioner testify in a case that has any complexity.” There are clear signs that many courts are responding to these calls. Paul C. Giannelli, “Forensic Science-Expert Qualifications: Traps for the Unwary,” 36 Crim. L. Bull. 249 (2000). Consider the following illustrative cases. In early 2000, the Northern District of Oklahoma handed down its decision in Alexander v. Smith & Nephew, 90 F. Supp.2d 1225 (N.D. Okla. 2000). An injured patient had brought a products liability action against the manufacturer of a spinal-fixation device. To establish causation, the plaintiff called a witness with a basic medical degree. However, the witness was not board certified in any relevant medical specialty. One of the old bromides about qualification is that the expert need not be board certified. Alvarado v. Weinberger, 511 F.2d 1046 (1st Cir. 1975). Nevertheless, the district court found the witness to be unqualified. CONSIDERING QUALIFICATIONS SPECIFICALLY, NOT ABSTRACTLY In mid-2000, the Eastern District of Michigan decided Berry v. Crown Equipment Corp., 108 F. Supp.2d 743 (E.D. Mich. 2000). In holding a safety consultant unqualified, the court used language reminiscent of Prof. Berger’s article. The court is to examine “‘not the qualifications of a witness in the abstract, but whether those qualifications provide a foundation for a witness to answer a specific question.’…[T]he trial court must determine whether the expert’s training and qualifications relate to the subject matter of his proposed testimony.” Although the above opinions are federal decisions, the same tendency is evident in many states with evidence codes patterned after the Federal Rules. In 1996, in Broders v. Heise, 924 S.W.2d 148, 151-52 (Texas 1996), the court applied Texas Rule 702, which was identical to the Federal Rule (before the Dec. 1, 2000, amendment of Federal Rule 702). The Texas court upheld the exclusion of an emergency room physician’s testimony about the causal relationship between a head injury and the patient’s death. The court declared: “Dr. Condos’s medical expertise is undoubtedly greater than that of the general population, but the Heises do not establish that his expertise on the issue of cause-in-fact met the requisites of Rule 702…. Just as a lawyer is not by general education and experience qualified to give an expert opinion on every subject of the law, so too a scientist or medical doctor is not presumed to have expert knowledge about every conceivable scientific principle or disease.” COURTS TAKING TOUGH STAND AGAINST ‘HIRED GUNS’ The courts are especially likely to take a tough stance on qualifications if the facts suggest that the expert is a professional witness who is willing to opine on a variety of subjects. One of the first opinions suggesting that stance, In re Air Crash Disaster at New Orleans, La., 795 F.2d 1230 (5th Cir. 1986), was handed down in the mid-1980s. Judge Patrick E. Higginbotham conceded that the trial judge has “broad” discretion in assessing the qualifications of witnesses offered as experts. However, he remarked: “[T]he professional expert is now commonplace. That a person spends substantially all of his time consulting with attorneys is not a disqualification. But experts whose opinions are available to the highest bidder have no place testifying in a court of law before a jury, and with the imprimatur of the trial judge’s decision that he is an ‘expert.’” He insisted that trial judges need to be “wary lest the expert becomes nothing more than an advocate of policy before the jury.” He added that the appellate courts should review with “a sharp eye” any trial judge ruling “where the record makes it clear that the decision to receive expert testimony was simply tossed off to the jury under a ‘let it all in’ philosophy.” The 4th U.S. Circuit Court of Appeals took up the same theme in a late-1980s decision, Thomas J. Kline Inc. v. Lorillard Inc., 878 F.2d 791 (4th Cir. 1989), cert. denied, 493 U.S. 1073 (1990). The plaintiff called an alleged expert witness, a Ms. Gordon, to testify about credit practices. While the record established that the witness had a “general business education,” it was devoid of any evidence that the witness had any directly relevant training or experience. Echoing the 5th Circuit, the court stated, “Although it would be incorrect to conclude that Gordon’s occupation as a professional expert alone requires exclusion of her testimony, it would be absurd to conclude that one can become an expert simply by accumulating experience in testifying.” The court conceded that the trial judge has “considerable discretion” in deciding whether a witness qualifies as an expert, but the court found that the trial judge was guilty of “a clear abuse of discretion” in ruling Ms. Gordon qualified. ‘TOKIO MARINE’ A LEADING CASE OF THE 1990s Perhaps the leading case in the 1990s is Tokio Marine & Fire Insurance Co. Ltd. v. Grove Manufacturing Co., 958 F.2d 1169 (1st Cir. 1992), a decision cited in Prof. Berger’s article. The Tokio Marinecase arose from a crane accident. The plaintiff proffered a witness named Alterman as an expert on cranes and crane accidents. The trial judge ruled that Alterman did not qualify as an expert, and on appeal the plaintiff attacked that ruling. The appellate court reviewed the testimony describing Alterman’s prior track record as a witness. The court noted that Alterman was “a professed expert in an extraordinary array of dissimilar fields: construction safety, scaffolding, fire protection systems, bulk oil terminals, cargo waterfront terminals, bridges, high rise construction, construction of highways, construction of race tracks, the field of construction management, the field of drainage projects, construction of containerized cargo facilities, the field of construction estimating, the field of waste treatment plants and water treatment plants, industrial buildings, wire ropes and wire cables, and opened wedge sockets.” The court remarked that Alterman had a “‘hired gun’ background as an… expert in an astonishing number of…areas….” The court concluded that the trial judge had not abused his discretion. In the past, to attack the weight of opposing expert’s testimony, counsel often argued that the expert was a “Jack of all trades and master of none.” Francis X. Busch, “Some Observations on Cross-Examination,” 1963, The Trial Lawyer’s Guideat 99, 106. Today, that argument is being transformed into an attack on the very admissibility of the expert’s testimony. The transformation may not be evident on the face of the governing statutes and court rules, but practitioners have to realize that the transformation is indeed occurring. Mr. Imwinkelried is a professor of law at the University of California at Davis. He is co-author of Gianelli & Imwinkelried, Scientific Evidence, (3d. ed. 1999). His e-mail is [email protected].

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