There's a new sheriff in town and its name is Kumho. On March 23, 1999, the United States Supreme Court completed what is now being called the "Trilogy on Expert Evidence" (Daubert, Joiner and Kumho). In 1993, Daubert directed federal judges to address the admissibility of expert testimony under Rule 702, which requires that the expert's methodology be reliable and that it fit the matter at hand. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In connection with the type of scientific evidence at issue, the court "suggested" that trial courts consider: (1) testing, (2) publication and peer review, (3)known or potential error rate, and (4) general acceptance. Then, in 1997, the Supreme Court in Joiner held that an abuse of discretion standard applies to the trial court's decision to exclude or admit expert evidence. General Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). The court emphasized that experts need to exp lain how and why they reached their conclusion. The methodology and conclusions are not entirely distinct in the analysis. Finally, in 1999, at the close of the millennium, the Supreme Court clarified in Kumho that both scientific and non-scientific expert testimony are subject to the trial court's "gatekeeping duty" to admit only expert testimony that is reliable and relevant. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Application of the Daubert factors needs to be examined in light of the expert or field at issue. Some may not apply. However, the trial court must make certain that any expert "employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." 119 S.Ct. at 1176.
This paper addresses the practical aspects of preparing yourself and your experts against Kumho attacks. The various approaches and considerations identified herein should not be considered definitive or bulletproof. Nor does this paper does not provide the history and development of the trilogy. There are many articles on this topic, in addition to the three Supreme Court decisions. See, e.g. Old Tires and New Limits: Kumho Tire's Effect on Expert Testimony, Product Safety & Liability Reporter, Vol. 27, No. 14 (April 2, 1999). SHOULD THE DEFENSE BE CONCERNED ABOUT A "KUMHO ATTACK"?
There is a widespread belief, among plaintiff and defense counsel, that Kumho is a defense victory. It is true that Daubert and Kumho have been applied more frequently to exclude plaintiffs' experts than defendants' experts. And, it is certainly true that the methods of plaintiff's experts have been unreliable. But, that conclusion does not mean that Daubert/Kumho does not apply to defense experts. It does. E.g., United Phosphorus Ltd. V. Midland Fumugant, Inc., 173 F.R.D. 675 (D. Kan. 1997) (defense's economics expert failed to satisfy "reliability" requirement under Daubert analysis.) And, Kumho and Daubert obviously applies to cases involving "ACMIE-type" products. See, e.g., Jaurequi v. Carter Manufacturing Co., 173 F.3d 1076 (8th Cir. 1999) (applying Daubert/Kumho to affirm exclusion of plaintiff's mechanical engineer and human factors engineer in case involving combine corn head).
In comparison, challenges by plaintiffs to defense experts have not been as frequent, at least to this point. Possible explanations include:
While the frequency and success of attacks against defendants' experts should remain lower as compared to attacks on plaintiffs' experts, the Kumho decision will likely lead to more attacks on defense experts. Before Kumho, plaintiffs' primary opposition to an attack against plaintiffs' experts was that the testimony was not "scientific" and therefore Daubert did not apply. That strategy is gone, at least in federal court. All experts are subject to the gatekeeping scrutiny required under Daubert. In the last two months alone, there have been over 30 federal decisions which addressed expert testimony under Kumho. Since Kumho was decided in March 1999, it has been cited in over 250 cases. Given the expected increase in challenges to all kinds of experts, plaintiffs will certainly assert challenges against defense experts if only to defend Kumho attacks against plaintiffs' experts. This counterattack strategy may be intended to deflect scrutiny from plaintiffs' expert, discourage Kumho attacks b y the defense, and/or overwhelm the court with Kumho challenges in the hopes that there will be a return to the "let it all in" approach to expert testimony.
Defendants also cannot underestimate the impact which Kumho has had on the plaintiffs' bar. Plaintiffs are very concerned about the decision and the prospects that they will have to establish the reliability of their experts, and thus their cases, in areas and situations where plaintiffs have previously enjoyed great latitude.
Kumho has gotten the attention on the plaintiffs' bar. One plaintiffs' attorney has warned his ATLA colleagues that, "to survive in the age of Kumho will require an unprecedented degree of case preparation at every stage of litigation." ATLA's Trial magazine, "Expert Testimony: Defeating the Kumho Challenge," November, 1999. Inasmuch as their strategy involves defendants' experts, defendants need to be aware of what plaintiffs are trying to do. The author of the ATLA article identifies the following strategies and tips that a plaintiff might try to defeat a challenge by the defense:
The remainder of this paper suggests issues and strategies the defense can consider to avoid a successful Kumho attack. UNDERSTAND AND ASSESS THE RISK OF A KUMHO ATTACK.
Before selecting experts (if possible) and certainly while preparing your case, you need to make an assessment of the likelihood of a Daubert/Kumho challenge. This assessment will help you and your client determine what experts, work, and resources need to be devoted to the case. The assessment should be done early and continually throughout the development of the case.
1. What are the main issues or areas that can make or break your or plaintiff's case?
A. What is plaintiff's basic theory on that/those issues?
B. What is your basic theory on that/those issues?
C. Who has the burden of proof?
2. What types of experts will you and plaintiff need to establish the issues?
A. What is the expert's field, occupation or experience?
B. How do experts in that field reach conclusions; what "methodology" is used?
C. Are there other fields of expertise that might address the issue; does the methodology differ?
3. Identify the basic propositions for plaintiffs' and defendants' expert on the issue.
A. How are they the same; how do they differ?
B. What steps or methodology has or will the experts use to reach the proposition.
4. Is the expert's testimony in the form of opinion, fact, or "otherwise."
A. Rule 702 allows expert to testify in form of "opinion or otherwise."
B. Observations and "pattern" testimony may not be subject to a pure Daubert/Kumho analysis. See, Heller v. Shaw Industries, Inc., 167 F.3d 146, n. 8 (3d Cir. 1999).
5. Which, if any, of the Daubert factors apply.
A. If a factor applies, what "evidence"?
B. If a factor does not apply, why not?
C. In absence of Daubert factor, what other indicia of reliability do experts in the relevant field use outside the courtroom to reach reliable opinions.
6. Do you intend to make a Kumho/Daubert attack on plaintiffs' expert?
A. Expect counterattack?
7. Who is the judge that will decide a Kumho objection?
A. How (if at all) has the court addressed expert objections in the past. (Will the judge hold 104 hearings?; what level of rigor will the trial judge really use to examine the evidence?)
B. Are there any reported decisions on the methods the expert uses? (Are those decisions consistent with a Daubert/Kumho analysis?)
EXPERT SELECTION
The Daubert/Kumho admissibility standards presuppose that the expert at issue is qualified. Be aware, however, that in response to the Supreme Court, many trial courts have also increased the vigilance with which they scrutinize the qualifications of experts. See, e.g. Surace v. Caterpillar, Inc., 111 F.3d 1039 (3rd Cir. 1997).
In addition to qualifications, consider the following:
1. At the outset, make sure that your selected expert is willing and able to explain, establish and verify the reliability of his or her methods. This includes experts with which you are familiar and have had past experiences.
2. Ask whether the expert has been involved in cases in which the methodology or reliability of the expert's opinion has been questioned or attacked. What did the expert learn from that experience and what was the outcome?
3. Make sure you and the expert understand the particular assignment of the expert. The expert must be properly qualified for the particular assignment and the expert must articulate a reasonable and reliable methodology that he or she will use in the particular assignment.
4. Do not ask experts to handle issues or areas in which they are not qualified and/or in which they would essentially offer subjective opinions. Also, make sure the expert understands the factual and legal issues on which the defense has the burden of proof.
5. Consider consulting or retaining a "methodology expert" to specifically address the issue of methodology apart from the merits. Depending on the field or issue, consider using professors or instructors from local colleges and universities. Remember, the touchstone for reliability is that the expert must "employ in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho, 119 S.Ct. at 1176.
EDUCATE YOUR EXPERT
Make sure your expert understands what is required under Kumho/Daubert. The expert must establish that the expert's evidence satisfy two principle criteria: (1) The method is "reliable;" and, (2) the evidence "fits" the facts of the case. In Kumho, the Supreme Court emphasized that whether the evidence is scientific or "experienced-based" the overall guideline for reliability is that the expert must "employ in the courtroom the same level of intellectual rigor that characterizes the practice of the expert in the relevant field." Kumho, 119 S.Ct. at 1176.
Discuss the facts and analysis of the Daubert and Kumho cases with your expert. What was wrong with the experts' methods in those cases? How do the cases apply in your case? What about the Daubert factors? The factors to consider in establishing reliability are flexible, but the trial court will undoubtedly access the applicability and application of the Daubert factors:
(1) Whether the theory or method has been or can be tested;
(2) Whether the theory or method has been subjected to peer review and publication;
(3)Whether there is a known or potential error rate and whether there are standards controlling the technique's operation; and
(4)Whether the theory or method is generally accepted in the community to which the expert belongs.
As aptly stated by the Supreme Court, "life and the legal cases that it generates are too complex" to provide a definitive checklist of the factors that any particular expert must meet. Kumho, 119 S.Ct. At 1176. The court stressed that the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable. However, although the court mentions on several occasions that the Daubert factors are flexible and may not apply, the court cautioned that Daubert factors, or variations thereof, are still important. In his concurrence, Justice Scalia further warns trial judges and litigants that though "the Daubert factors are not holy writ, in a particular case the failure to apply one or another of them may be unreasonable, and hence an abuse of discretion." Kumho, 119 S.Ct. at 1179 (Scalia concurring).
You and the expert have the burden to explain why and how the methodology is reliable and why one or more of the Daubert factors do not apply. This does not mean your expert must or should force his/her methodology to fit factors that clearly do not apply. The effort to do so may make you or the expert look ridiculous. See, e.g. Sanchez v. KPMG Peat Marwick, 1996 WL 104259 (D.N.M. 1996) (tried to force accountant's methodology into strict reading of Daubert factors).
ATTORNEY AND EXPERT MUST UNDERSTAND EACH OTHER
Have an open and frank discussion with your expert about the expert's approach to cases. You and your expert must be able to clearly establish and explain the reliability and fit of the expert's testimony. While your expert needs to understand the requirements of Kumho, you need to learn the "science" or engineering or methodology used by your expert.
1. Force yourself and your expert to use simple and understandable language (i.e., drop the legalese and techno-babble).
2. Do not rest only on precedent. While it may be true that the testimony of most defense experts will be admissible, the methodology must be explained and the reliability of the expert opinion must be established under the Daubert/Kumho analysis.
3. Focus on the specifics of the expert's methodology and propositions, not just the field of expertise or general approach. Recall that the engineer in Kumho was presumably qualified and based his opinion of visual observation and inspection. The general method, visual inspection, was not a problem per se. Rather, the focus was on the particular analysis of the data gained from the visual inspection.
4. Do not force your expert to make inapplicable Daubert factors fit the methodology or vice versa. Be flexible.
COLLECT THE RELEVANT LITERATURE
A complete and thorough search for the relevant literature and publications must be done. Daubert emphasized relevant standards, publications and "peer review." Kumho cited and relied extensively on publications within the field of expertise. These materials are critical for establishing and explaining the reliability of your expert's method/analysis. The search and review of literature and publications should address the following:
1. Is "peer review" done in the particular field of expertise? How?
2. Collect the published standards, regulations and guidelines used and generally accepted within the field.
3. What organizations and trade groups address the field of expertise, methodology, or issue?
A. Do any have publications that are relevant to the issue at hand?
B. Are there publications which use or refer to the same method used by your expert?
4. Are there government or regulatory studies, papers or publications which used or relied on procedures and methods that are the same or similar as those used by your expert?
5. Collect basic text books and other aids that your expert can use to teach you and the court about the issue at hand and the expert's methodology?
CAN OR HAS THE METHODOLOGY BEEN TESTED?
One of the important, and potentially costly, factors that must be considered is whether the theory or technique can be or has been tested. Indeed, regardless of the field of expertise, it is difficult to imagine that testing would not apply, at least in some form. This is particularly true for engineering experts. See, e.g. DePaepe v. General Motors Corp., 141 F.3d 715 (7th Cir. 1998). In the products liability area, testing is an important tool in attacking plaintiff's proposed alternative design. Since it is generally plaintiff's burden to identify or show the feasibility of an alternative design, the "test" factor necessarily and properly should be of a greater concern for plaintiffs.
However, although plaintiffs may need to more concerned about the "testing factor" from a practical standpoint, the defense attorney, client and expert need to carefully assess the existence and need for testing in connection with the defense expert's testimony. In conducting this assessment, the defense should consider the following:
1. What are the propositions that need to be or could be tested with regard to the defense expert's opinions and the methodology?
2. Is there existing research, testing or data in the field or industry?
3. With regard to all types of engineering, what testing can be or has been done using mathematics, physics, calculations and computer programs?
4. Is the contemplated testing going to be used to reach or demonstrate an opinion? (You may want to call it both, but you probably need to address this issue up front. What is the purpose of the test?)
5. For causation theories, was the testing done to replicate or reconstruct the accident, or to test/demonstrate a scientific principle? (You may be safer, in terms of admissibility, with basic scientific experiments since there is a higher burden of showing similarity for replicating accidents.)
6. Evaluate what you can and cannot call a "test" of the methodology and propositions carefully. If you take an overly broad position, you may allow plaintiff to do the same.
EXPERT DEPOSITIONS
In the wake of Kumho, expert depositions have become more important than ever. It is critical that the defense expert be properly prepared and ready for detailed questions about methodology, data in support of opinions, testing, etc. You should expect that plaintiff will try to identify (but not let your expert explain) areas that your expert has not considered, tested, calculated, etc. Before the deposition, the defense attorney and expert must discuss and agree upon the strategy for making the record clear. Neither the attorney nor expert can assume that there will be a subsequent opportunities to explain. See, United States of America v. Nichols, 169 F.3d 1255 (10th Cir. 1999) (Daubert does not require a court to hold a hearing prior to excluding testimony).
The following should be considered in connection with your expert's deposition:
1. Prepare early and thoroughly. The expert should have substantially completed his or her work before deposition. If there are outstanding items, the expert needs to be prepared to explain how and why additional work (i.e. testing?) impacts the methodology or propositions that the expert has already reached.
2. The defense attorney and expert should set aside sufficient time before the deposition to prepare for possible Kumho/Daubert questions. Discuss whether and how the expert will make the record clear concerning the reliability and objectivity of methodology/propositions. The defense attorney may need to conduct direct examination to make sure the record is clear.
3. Do not let the plaintiff make his/her problem; your problem. Remember who has the burden of proof. Who is advancing the proposition or advocating a change? It may be appropriate to state that there is no sufficient data or facts which would warrant or support plaintiff's allegation (i.e. proposition).
4. Be prepared for questions which suggest that the expert failed to consider, calculate, test or use a method to prove a negative.
5. Identify and explain that and how the same methodology is used in the relevant field. Have and be able to discuss the published literature, standards, data and test data.
6. Don't forget about plaintiff's expert. Recall that the author of the ATLA article, advised his colleagues to seek discovery and admissions from the defense expert about the validity or similarity of the plaintiff's expert's methodology. Prepare your expert for this possibility, and pursue plaintiff's expert in the same manner.
EXHIBITS AND REPORTS
The defense expert needs to be concerned about the oral and written product. Trial exhibits which express "opinions" need to be prepared with Kumho in mind. Also, to the extent the plaintiff pursues a Kumho challenge, the record should include all necessary documents and information to support the expert's testimony or exhibit (for the trial court and on appeal). See, e.g. Tanner v. Westbrook, 174 F.3d 542 (5th Cir. 1999) (reversing plaintiff's verdict because record lacked support for opinion of plaintiff's expert.)
The defense expert needs to keep Kumho/Daubert in mind when preparing the expert report. The complete statement of opinions, the basis and reasons, and the data and other information considered, should be drafted with Daubert/Kumho in mind. Determine whether local practice requires a detailed discussion in the report of the methodology used by the expert. Generally speaking, unless required by the particular court, this author would advise against having a separate section in the report which addresses the methodology used by the experts. Expert testimony will not be admitted by the "ipse dixit" of the expert. Joiner, 118 S.Ct. At 519. Providing a separate section on methodology (particularly if plaintiff is not required to do the same) may only serve to provide plaintiff more advance information and warning than is necessary. In addition, unless the section is carefully detailed and explained, a statement by the expert that his/her methods are reliable may come across as self-serving, if not unnece ssarily defensive.
CONCLUSION
The "Trilogy" requires all experts be ready and able to prove that their positions are grounded in sound methods and in reality. This is a victory for any litigant who must make decisions and survive in the real world. The "victory" must be preserved and guarded. Making sure that the defense expert is prepared to show that his or her opinions meet the same level of intellectual rigor as most manufacturers face in the real world is not unreasonable. It is expected.
