Daubert: It Is Not A Four Letter Word by Dennis O’Brien
Dennis F. O’Brien (Foard, Gisriel, O’Brien & Ward) received his J.D. from the University of Baltimore School of Law. He is a member of MTLA’s President’s Club as an Eagle and is the Editor In-Chief of Trial Reporter. He 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 concen- trates in serious personal injury, products liability, medical malpractice and appellate work.
Creative approaches to utilizing Daubert and its ilk as a sword
If you are seeking a case name that will cause plaintiff’s counsel to shudder with- out fail, it is Daubert. No case of recent vintage has wreaked more havoc on plain- tiffs’ personal injury cases, and the expert testimony, that of necessity, is required in most. This article explains ways Daubert and its progeny, as well as the various state court variations that exist, can be effec- tively utilized by plaintiff’s counsel to do unto the defense that which they seek to do to you.
Daubert and Its Progeny
In order to assemble an arsenal of ar- guments to be used by plaintiff ’s counsel, an understanding of Daubert and its three generally recognized progeny is essential. In 1993 the Supreme Court released its opinion in Daubert vs. Merrell Dow Phar- maceuticals, 509 U.S. 579 (1992). In that case, the Supreme Court held that Rule 702 of the Federal Rules of Evidence su- perceded the heretofore widely adopted
1
FRE 702 provides: Testimony by Experts
If scientific, technical or other specialized knowledge will assist the trier of fact to un- derstand the evidence or to determine a fact in issue, a witness qualified as an ex- pert by knowledge, skill, experience, train- ing, or education, may testify thereto in the form of an opinion or otherwise.
Frye standard.1 Although FRE 702 does
not require “general acceptance” as a pre- requisite to admissibility, the Supreme Court read into FRE 702 a “test” for ad- missibility of scientific evidence. The trial judge was deemed the gatekeeper of such evidence and would be charged with the obligation of making a threshold determi- nation as to the admissibility of a given body of scientific evidence. The Daubert test is: a) Whether the theory or technique can be tested;
b) Whether it has been published in a peer reviewed journal;
c) The known or potential error rate; and
d) The general acceptance of the theory or technique.
Pursuant to Daubert, trial judges would make an initial determination as to whether or not the expert’s findings and conclusions met the test prior to the ad- mission of such evidence before a jury. No longer would these issues go to the weight of the evidence, but rather the admissi- bility of the evidence. Daubert’s focus is arguably on the principles and method- ology.
If they are consistent with the
science of current vein, then the results and conclusions reached through the ap- plication of those principles and methodology would be admissible. Daubert, standing alone is not the prob- lem. The evolution of Daubert in three successive cases has become a problem.
General Electric v. Joiner, 522 U.S. 136 (1997)
In this case, the trial court held a
Daubert hearing and excluded the plaintiff ’s expert testimony. The court granted the defendant’s Motion for Sum- mary Judgment as plaintiff no longer could meet the burden of proof. The 11th Circuit Court of Appeals reversed. The Supreme Court reversed the 11th
Circuit
holding that the standard of review for the trial judges’ determination as gatekeeper, pursuant to Daubert, was an abuse of discretion.
Also, the focus in
General Electric v. Joiner was on the re- sults and opinions, as opposed to the principles and methodology. Moreover, the standard of review is the much tougher “abuse of discretion, as opposed to clear error”.2
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This of course raises the bar considerably on appeal from the courts granting of summary judgment. Instead of the normal standard of review for summary judgment, the appel- lant must demonstrate that the trial court “abused its discretion” in the decision to ex- clude evidence, despite this being a de facto grant of summary judgment.
4 Trial Reporter Spring 2003
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