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When litigators go shopping for the ideal forum, they often consider which one offers them the most favorable substantive or procedural law. For example, a tort plaintiff might prefer filing suit against a manufacturer in a jurisdiction that imposes more extensive strict products liability. Or, to minimize the expense of pretrial discovery, a plaintiff might decide to file suit in a jurisdiction with extensive prediscovery mandatory-disclosure requirements, such as those prescribed by Federal Rule of Civil Procedure 26(a). EXPERT-TESTIMONY RULES A FACTOR IN FORUM SHOPPING Increasingly, however, litigators will have to factor the jurisdiction’s rules governing expert testimony into their forum shopping. Indeed, the U.S. Supreme Court’s celebrated decision in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), was a product of forum shopping. Although we now think of Daubert as a leading federal-evidence precedent, the litigation began in California state court. The Dauberts initially filed suit against Merrell Dow Pharmaceuticals in California Superior Court in San Diego. In all probability, however, the more Merrell Dow read about California expert-testimony law, the less it liked it. It is true that California subscribed — and still adheres to — the traditional Frye “general acceptance” test for the admissibility of purportedly scientific testimony. People v. Leahy, 8 Cal.4th 587, 882 P.2d 321, 34 Cal.Rptr.2d 663 (1994); People v. Kelly, 17 Cal.3d 24, 549 P.2d 1240, 130 Cal.Rptr. 144 (1976). At first blush, one would think that Merrell Dow would have been delighted to litigate in California because the plaintiffs were relying on a novel theory of medical causation. Yet there was a wrinkle in California expert-testimony law. In People v. McDonald, 37 Cal.3d 351, 690 P.2d 709, 208 Cal.Rptr. 236 (1984), the California Supreme Court observed that in the past, it had “never applied the… Frye [general acceptance] rule to expert medical testimony.” Like a number of other Frye jurisdictions, California has sometimes exempted “medical experts” from scrutiny. Slovenko, Syndrome Evidence in Establishing a Stressor, J. Psych. & Law, Fall 1984, at 465 n. 23. Understandably, Merrell Dow quickly moved to remove the suit to U.S. district court where, it hoped, the federal court would scrutinize and ultimately exclude the plaintiffs’ expert testimony on medical causation. As we know, that hope was realized. What is often overlooked, however, is that throughout the litigation in federal court, the plaintiffs argued that, as a matter of choice of law, the federal court was obliged to apply California expert-testimony law. The plaintiffs contended that the testimony was so clearly admissible under California evidence standards and so potentially determinative of outcome that Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) compelled the application of state law. Ultimately, the Supreme Court found it unnecessary to reach that contention. In footnote six of its opinion, the Daubert Court simply stated: “Because we hold that Frye has been superseded and base the discussion that follows on the content of the congressionally enacted Federal Rules of Evidence, we do not address petitioners’ argument that application of the Frye rule in this diversity case, as the application of a judge-made rule affecting substantive rights, would violate the doctrine of Erie….” Although the Court did not rule on the plaintiffs’ choice-of-law contention, the Court did pass on the plaintiffs’ argument that the enactment of the Federal Rules of Evidence had overturned Frye. The Court sustained that argument as a matter of statutory interpretation — not as a matter of constitutional law. Reading Rule 702, the Court announced that the statutory test for admissibility is whether the proffered testimony qualifies as reliable “scientific…knowledge” within the meaning of that expression in Rule 702. The Court explained that the expression means the testimony must be the product of sound scientific methodology. The Court then listed a number of factors, such as empirical testability and peer review, that trial judges should consider in deciding whether purportedly scientific testimony rests on good validation methodology. Because the decision rests on statutory grounds, Daubert is binding on lower federal courts; but the decision is not mandatory authority in the states — even in the 41 states that have adopted evidence codes patterned after the Federal Rules of Evidence. Where, then, does Daubert leave the litigator? Simply stated, it gives him or her the opportunity to forum-shop for the most favorable expert-testimony rules. As a practical matter, by refusing to pass on the plaintiffs’ choice-of-law contention, the Court left undisturbed the widely shared assumption among federal jurists that except when Rule 302 (presumptions), 501 (privilege) or 601 (competency) requires otherwise, they should apply federal evidence law even in diversity cases. Thus, a litigant can effectively escape from state expert-testimony law by removing to federal court. ‘DAUBERT’ HAS GAINED A FOLLOWING IN STATE COURTS The contemporary litigator not only has the opportunity to forum-shop, but in many cases also has a powerful motive to do so. To be sure, Daubert now governs in federal court, and it has gained a growing following among the states. Giannelli and Imwinkelried, “Scientific Evidence,” � 1-13 (3d ed. 1999). Slightly fewer than 20 states, however, still adhere to Frye. Id. at � 1-14. Moreover, some of those jurisdictions are among the most populous — and litigious — including California ( People v. Leahy, 8 Cal.4th 587, 882 P.2d 321, 34 Cal.Rtpr.2d 663 (1994)), Illinois ( People v. Miller, 173 Ill.2d 167, 670 N.E.2d 721 (1996)), and New York ( People v. Wernick, 89 N.Y.2d 111, 674 N.E.2d 322, 651 N.Y.S.2d 392 (1996)). Furthermore, it has become increasingly clear that there are significant differences between the scope of the Frye test and that of the Daubert standard. On the one hand, if the litigant contemplates relying on an avant-garde scientific theory, a federal forum will be more attractive. A novel theory faces an uphill battle satisfying Frye‘s general acceptance test, while in Daubert Justice Harry Blackmun made it clear that, standing alone, the novelty of a scientific technique or theory is not fatal to its admissibility. In several types of cases, however, the litigant will probably prefer a state forum that follows Frye. When the litigant’s expert proposes relying on a traditional technique, a state forum will often be more advantageous. Because Frye is limited to novel scientific techniques, by definition a traditional, accepted theory will almost automatically qualify for admissibility. Not so under Daubert. In footnote 11 of his opinion, Justice Harry Blackmun indicated that Daubert‘s validation standard is not confined to “conventional” techniques and theories. Seizing on that footnote, a number of lower federal courts have sustained attacks on hoary techniques such as questioned document examination. E.g., U.S. v. Starzecpyzel, 880 F. Supp. 1081 (S.D.N.Y. 1995). Even fingerprinting has come under attack. Hansen, “Dusting for Daubert,” 86 A.B.A.J. 20 (Dec. 2000). ‘FRYE’ IS MORE HOSPITABLE TO ‘SOFT’ SCIENCES Similarly, when the litigant’s expert is a specialist in a “soft” science such as psychiatry, the litigant may find a Frye jurisdiction much more hospitable. A majority of Frye jurisdictions confine the test to a “hard” science and broadly exempt soft sciences from scrutiny. Hanson, “Frye Is Sixty-Five Years Old: Should He Retire?, “16 West. St. U. L. Rev. 357, 411 (1989). California in particular has recently affirmed that in that state, soft scientific testimony need not run the Frye gantlet to be admissible. Wilson v. Phillips, 73 Cal. App.4th 250, 86 Cal.Rptr.2d 204 (1999). In Daubert, however, Justice Blackmun defined science in expansive terms — certainly widely enough to encompass soft science disciplines. The lower federal courts have taken that definition seriously and demanded a showing of reliability from proponents of soft science. Elcock v. Kmart Corp., 233 F.3d 734 (3d Cir. 2000); Comment, “Admissibility of Expert Psychological Testimony in the Federal Courts,” 27 Ariz. St. L.J. 1315 (1995). Finally, the prevailing view in Frye jurisdictions has been that the special general acceptance test is restricted to purportedly scientific testimony. Those jurisdictions have taken an essentially laissez-faire attitude toward nonscientific testimony. Hence, a proponent of expert testimony can virtually ensure the admissibility of the testimony by persuading the trial judge to characterize the witness’s expertise as “nonscientific.” Again, not so under Daubert and its progeny. It is true that after Daubert, the federal courts were split over the question of whether some variation of the Daubert validation test applied to non-scientific testimony. Note, “Inconsistent Gatekeeping in Federal Courts: Application of Daubert v. Merrell Dow Pharmaceuticals Inc. to Nonscientific Expert Testimony,” 30 Loyola Los Angeles L. Rev. 1379. But the Supreme Court ended that division of authority in 1999 when it handed down its decision in Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999). In that case, the Court declared that a proponent of expert testimony could not escape from the need to demonstrate the reliability of the testimony by the simple expedient of labeling the evidence “nonscientific.” On the one hand, a proponent need not show that the testimony bears all the hallmarks of scientific reliability. The Court stated that in ruling on the admissibility of nonscientific expertise, a trial judge should not automatically apply all the factors listed in Daubert. But the Court insisted that the proponent must convince the trial judge that the expert is presenting more than his or her ipse dixit. The Advisory Committee Note to the Dec. 1, 2000, amendment to Rule 702 makes it clear that the drafters intended to codify that facet of the Kumho decision. WHEN ‘TRIAL BY JURY’ BECOMES ‘TRIAL BY EXPERT’ The odds are that for the foreseeable future, differing expert testimony standards will loom large as a factor motivating forum shopping. The importance of that factor reflects several trends. One is the growing use of expert testimony. Some have claimed that in the United States, “trial by jury” is becoming “trial by expert.” That claim is only a slight exaggeration. In the Rand Corp. study of the use of expert testimony, 85 percent of the 529 civil trials in the database involved the presentation of expert evidence. Gross, “Expert Evidence,” 1991 Wis. L. Rev. 1113, 1119. Although the services of experts can be quite expensive, experts are called as witnesses so frequently precisely because their testimony can be vital evidence on the dispositive issue in the case — as was true in Daubert. Finally, as the years have passed since the rendering of Daubert, sharp distinctions have emerged between Daubert jurisdictions and those still committed to Frye. If an issue in a case cries out for expert testimony and the issue is critical enough to warrant the expense of hiring an expert, the litigant should think long and hard about the involved jurisdictions’ expert-testimony rules before finally deciding where to file suit. So long as a substantial number of large states continue to embrace Frye, expert-testimony law will be a potent force in forum shopping. Mr. Imwinkelried is a professor of law at the University of California at Davis. He is co-author of Giannelli & Imwinkelried, Scientific Evidence, (3d ed. 1999). His e-mail is [email protected]

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