Junk Science:

Keep It Out

By Henry W. Wiggins, III; June 1999

     The Daubert test for admissibility now applies under FRE 702 regardless of whether the opinion at issue is “scientific”, “technical”, or “other specialized knowledge.”  Kumho Tire Company v. Carmichael,  ___ U.S. ___, ___ S. Ct. ___, 67 U.S.L.W. 4197 (decided March 23, 1999.)  This case involves a dispute in the Circuits on the application of the Daubert standard to “skill or experience-based” expertise, regardless of “scientific novelty.”

     Kumho Tire makes it clear that the Daubert list of “gatekeeping” factors a District judge may consider in determining opinion admissibility is not exclusive.  The specific factors listed in Daubert are:

Testing which conforms to a valid scientific method;

Whether the theory or technique has been subjected to peer review or publication;

Known or potential error rates and scientific protocol standards controlling the techniques’ operation; and

Acceptance in the relevant scientific community.

     The Supreme Court in Kumho Tire stressed that “Daubert’s list of specific factors neither necessarily nor exclusively apply to all experts or in every case.”  The Daubert list “was meant to be helpful, not definitive” and District Courts have discretion to consider any relevant “reliability tests” to proffered opinion testimony.

     There is no bright line test for admissibility and the appellate standard of review for District Court’s determination under FRE 701 is “abuse of discretion.”  Kumho Tire ___ S. Ct. ___, 67 U.S.L.W. at 4183.

     A trial court is not required to hold a preliminary in limine evidentiary hearing before admitting opinion testimony.  The court has discretion to allow the necessary foundation to be presented to the jury and determine in the presence of the jury whether the opinion is admissible under the Daubert-Kumho Tire standards.  U.S. v. Nichols, ___ F.3d ___ (10^th Cir. 1999).  In Nichols, the Tenth Circuit also ruled that in limine challenges to opinion testimony made prior to trial must be renewed when the evidence is introduced at trial or the objection is waived on appeal.

     Under Daubert-Kumho Tire, a District judge must make three determinations before admitting proposed opinion testimony:

Reliability.  The “first prong” of Daubert is whether the proposed opinion evidence is “good” science or specialized knowledge, in an optimum setting, or whether it is “too fallible” (i.e., “science that is junky” – Scalia, Judge concurring in Kumho Tire).  The proponent of the opinion evidence has the burden of proving that the proposed evidence meets the Daubert standard.

Methodology.  The “second prong” is whether the proposed opinion evidence, despite its “good” principles or methodologies in an ideal world, was applied in a proper manner to the evidence in this case.

Relevance.  The “third prong” applies legal tests of relevance – FRE 401 – and probative value v. prejudicial effect – FRE 403

Thus, the trial judge must ensure that any “scientific”,  “technical” or “other specialized” evidence ultimately admitted is “not only relevant, but reliable.”  Kum Ho Tire appears to expand the scope and applicability of ER 702 to “skill or experience-based” expertise, regardless of “scientific novelty.”