The Challenge of Daubert:


Practical Tips for the Trial Lawyer by Alex Allman and Dennis F. O’Brien


In Daubert v. Merrell Dow Pharmaceu-


ticals, Inc., 509 U.S. 579 (1993), the Supreme Court adopted a standard of re- view for expert testimony which effectively designated trial judges as gatekeepers, responsible for ensuring that scientific evidence admitted is not only helpful to the trier of fact, but also based upon a reliable foundation.1


Pursuant to


this standard, the trial judge’s task is to determine whether proffered opinion tes- timony would withstand peer scrutiny.2 At the heart of the analysis is an examina- tion of the expert’s scientific methods and the principles upon which he bases his opinion. Until recently, the gatekeeper analysis was limited to opinion testimony involving scientific methods and prin- ciples. However, in Kumho Tire Co. Ltd. v. Carmichael, 119 S. Ct. 1167 (1999), the Supreme Court extended Daubert to include all expert testimony. To satisfy the Daubert-Kumho Tire


standard, the testimony must be: (1) help- ful to the trier of fact; (2) the expert must be qualified to give the opinion; and (3) the testimony must be based upon a reli- able methodology.3


The first two


considerations are basic to the admissi- bility of all evidence. To determine whether the testimony will be helpful to the trier of fact, the trial judge must con- sider whether the subject matter is appropriate for expert testimony.


If so,


the court must decide whether the expert is sufficiently qualified to render the opin- ions in question. Lastly, under Daubert and Kumho Tire, the trial judge is in- structed to examine the methodology and principles relied upon by the expert in rendering his opinion. A brief case his- tory of Daubert and Kumho is essential to understand this inquiry. In Daubert, two children were born with serious birth defects. They sued a pharmaceutical company, alleging that


1 2


Daubert v. Merrell Pharmaceuticals, 113 S. Ct. 2786, 2790 (1993)


Patricia A. Krebs and Bryan J. De Tray, Ana- lyzing Expert Testimony Under Daubert 34 Tort and Insurance Law Journal, No. 4, 989, 993 (1999) (quoting Watkins v. Telsmith, Inc., 121 F.3d 984 (5th 3 See Fed. R. Evid. 702


Cir. 1997) 14


Alex M. Allman is a third-year law student at the University of Baltimore and a law clerk at Scanlan, Rosen, & Shar, LLC in Baltimore. He is an MTLA member who serves on the Trial Reporter Committee. After graduation in 2000, he will be working as law clerk to the Honorable William B. Spellbring in the Circuit Court for Prince George’s County.


Dennis F. O’Brien (Foard, Gisriel & O’Brien, Towson) received his J.D. from the University of Baltimore School of Law. He is a member of MTLA’s President’s Club as a Founder, is the Editor In-Chief of Trial Reporte and also serves as a member of the Legislative Committee. Mr. O’Brien is a member of the Baltimore County and Maryland State Bar Associations and ATLA. His practice concentrates in serious personal injury, products liability, medical malpractice and appellate work.


Trial Reporter Winter 2000


their mother’s prenatal ingestion of Bendectin caused the defects. The manu- facturer moved for summary judgment, relying on an affidavit from an expert in which the expert, citing extensive litera- ture in the field, concluded that first-trimester use Bendectin had not been shown to be a risk factor for human birth defects.4


The plaintiffs countered with the


reports of eight experts who, relying upon other studies, concluded the opposite. The trial court granted summary judg- ment, the plaintiffs’ evidence notwithstanding, and, relying on Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), concluded that scientific evidence is admissible only if the principles upon which it is based are “sufficiently estab- lished to have general acceptance in the field[.]” The eight experts cited by the plaintiffs, according to the court, could not raise by themselves a reasonably dis- putable jury issue regarding causation.5 The Court of Appeals affirmed.6


4 Daubert, 113 S. Ct. at 2791 5 Id. at 2792 (citations omitted)


6


Daubert v. Merrell Pharmaceuticals, 951 F.2d 1128 (1991)


7 Id. at 1177 The Supreme Court granted certiorari


and reversed, abolishing the Frye “general acceptance test” and establishing a new test based on Federal Rule of Evidence 702. The Court directed that trial judges considering expert testimony should con- tinue to act as gatekeepers, but that relevant inquiry would be aimed at the expert’s method of analyzing the data con- tained within his conclusion and not whether the expert’s methods were “gen- erally accepted” in the scientific community.7 In order to accurately assess the admis- sibility of scientific evidence, the Court set forth five nonexclusive factors that the trial judge may consider: (1) whether the technique or theory can be or has been tested; (2) whether the technique or theory has been subject to peer review and publication; (3) the known or potential rate of error of the technique or theory; (4) the existence and maintenance of stan- dards and controls; and (5) the degree to which the technique or theory has been generally accepted within the scientific


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