community.8


In essence, the court is re-


sponsible for determining whether the reasoning or methodology underlying the testimony is scientifically valid and rel- evant. The bald assertion of an otherwise credible expert is not enough.9 In the aftermath of Daubert, there has been a proliferation of litigation over the admissibility of expert testimony. Predict- ably, there was little uniformity in the application of the Daubert principles. Some courts reasoned that the Daubert standard applied only to scientific testi- mony; 10


only to a particular methodology;11


some courts applied Daubert and


others extended Daubert to all expert tes- timony.12


The split among the circuits


led to the Kumho Tire decision by the Supreme Court. In Kumho Tire, the is- sue was whether the Daubert methodology applied to all expert evi- dence. The Court concluded that it did. Kumho Tire arose from a products li- ability suit alleging that a defective tire was responsible for a fatal automobile ac- cident.


apply because it was limited to the scien- tific context, whereas the plaintiff ’s expert’s testimony was based on skill or experience.16


The case made its way to the


Supreme Court, which reversed. Accord- ing to the Court, it would be difficult, if not impossible, to require trial judges to distinguish between “scientific” and tech- nical or specialized knowledge with any consistency.19 The Court stressed the flexibility of the


Daubert analysis and stated that its exer- cise lies within the sound discretion of the trial judge. Thus, the trial court remains free to consider some, but not all of the Daubert factors, or to consider other rel- evant issues not enumerated.


In short,


the Kumho decision extended Daubert in two fashions: (1) the relevant and reli- able prerequisites apply to all expert testimony and (2) the trial judge is af- forded wide latitude in the application of the standard. In their practical application, these


The plaintiffs based their case primarily upon the opinion of a tire fail- ure analyst who concluded that a defect in the tire’s manufacture or design caused it to blow out. His opinion was based on personal inspection of the tire and upon the theory that, without sufficient evi- dence of abuse of the tire, the failure must have been caused by a defect.13


The de-


fendants moved to exclude this testimony on the ground that it failed to satisfy F.R.E. 702. The court found that the testimony


failed the Daubert test and was not reli- able. 14


The court noted that the expert


employed a test that was not recognized in the industry and that he failed to refer to articles or papers describing his method of visual inspection.15


Troubled by the lack


of a scientific basis for the analysis, the court granted the motion to exclude the expert’s testimony. The Court of Appeals reversed, holding that Daubert did not


8 Id. at 2796-2798 9


10 11 12 13 14


General Electric v. Joiner, 118 S. Ct. 512, 519 (1997)


SeeThomas V. Newton International Enter- prises, 42 F.3d 1266 (9th


Cir. 1994)


See Compton v. Subaru of America, Inc., 82 F.3d 1513 (10th


Cir. 1996)


See Watkins v. Telsmith, Inc., 121 F.3d 984 (5th


Cir. 1997)


Kumho Tire Co., Ltd. v. Carmichael, 119 S. Ct. 1167, 1169 (1999)


Carmichael v Samyang Tires, Inc., 923 F. Supp. 1514, 1520 (S.D. Ala. 1996) 15Kumho, 119 S. Ct. at 1178


Winter 2000 Trial Reporter 15


16Id. at 1173 17Id. at 1174


18Daubert 113 S. Ct. at 2795 19


Patricia A. Krebs and Bryan J. De Tray, Ana- lyzing Expert Testimony Under Daubert 34 Tort and Insurance Law Journal, No. 4, 989, 1000 (1999)


cases present a unique problem for the trial practitioner, as each expert’s opinion must fall within the range where experts might reasonably differ. The trial judge, exercising wide discretion, is required to scrutinize the reasonableness of the expert’s approach in determining admis- sibility and if not satisfied, the testimony will be excluded.


In this setting, the trial lawyer can and should anticipate a Daubert challenge and prepare for it. From a practical stand- point, one should reasonably examine expert testimony prior to suit to insure that it will pass muster. More often than not, in Federal Court, Daubert challenges are routinely made and a pre-trial eviden- tiary hearing will be held on the issue of the reliability of the opinion testimony proffered. Unfortunately, this may come after the close of discovery and the dead- line for designation of experts. If the trial judge concludes that the testimony is to be excluded, the case may fail, as it will be too late to obtain another opinion. Therefore it is imperative that counsel utilize expert testimony that is likely to meet and exceed a Daubert inquiry. Fail- ure to do so could lead to disaster. Another, no less important, consider- ation is challenging the defense experts similarly. Daubert can be an effective of- fensive weapon. The careful practitioner will analyze the opposing opinions and should decide whether and when a Daubert challenge is warranted. Finally, those who file cases in state court that potentially can be removed to federal court need to be aware of Daubert and its application, as opinions that might be easily admitted in state court might be in serious jeopardy under Daubert. From the outset of any case requiring opinion testimony, counsel should be ever mind- ful of Daubert and Kumho and the serious obstacle they pose to successful litigation.


20


Kumho, 119 S. Ct. at 1179 (1999) (J. Scalia concurring opinion)


21Id., 119 S. Ct. at 1177 22Id.


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