Seventy years later, on June 28, 1993, the U.S. Supreme Court held in Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993) that Rule 702 of the Federal Rules of Evidence superseded Frye and that a ''general acceptance'' standard should not be applied in federal trials.2 Daubert will have an impact on the way scientific expert testimony must be gathered and presented at court and on the timing of presentation, in a number of ways. This article will focus on the application of the rules that form the foundation for decisions relating to the admissibility of scientific evidence and scientific expert testimony as set forth in the Daubert opinion, and how Texas state courts have been influenced by the Daubert opinion. If you practice in areas that involve scientific or technical matters, (personal injury, civil litigation, environmental law, intellectual property law, family law, or maritime law), you need to be familiar with the new requirements for admissibility of scientific or technical evidence and expert testimony because the methodologies utilized in reaching the conclusions offered in the evidence you help present will be thoroughly scrutinized by scientific principles. That an opinion is uttered by a scientist will no longer guarantee admissibility. Daubert may give plaintiffs opportunities to access new research in proving their cases and it may give defendants greater certainty in assessing a plaintiff's case. Daubert will definitely require a higher level of understanding of statistical and scientific methodologies on the part of lawyers and legal assistants in submitting a case at trial and even more so of judges in deciding whether to admit or refuse scientific evidence.
In discussing the application of the Federal Rules of Evidence in the Daubert opinion, the Supreme Court began with Rule 402, Federal Rules of Evidence, which is the baseline for admissibility. ''All relevant evidence is admissible, except as otherwise provided by the Constitution of the Untied States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.''7 Rule 401 defines relevant evidence as ''that which has `any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.'''8 Admissibility of expert testimony in the form of opinion is governed by Rule 702, which provides: ''If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.''9
An important point noted by the Supreme Court in Daubert is that the trial court is assigned the responsibility of ensuring ''that any and all scientific testimony or evidence admitted is not only relevant, but reliable.''10 This task is mandated by Rule 104 Federal Rules of Evidence (determination of qualifications, privileges and admissibility). The judge's task after Daubert is to employ the use of a two-part analysis under Rule 702 before evidence is admitted. Two issues that must be resolved by the trial court before admitting expert testimony are ''whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.''11 The two-part analysis of the expert's testimony must involve two additional determinations by the trial court. First, does the expert testimony reflect ''scientific knowledge.…ground[ed] in the methods and procedures of science.… [and are the inferences or assertions] derived by the scientific method.''12 Second, the court must ensure that the proposed expert testimony ''is relevant to the task at hand,'' by logically advancing a material fact of the proffering party's case.13 This is called the ''fit'' requirement. Both of these analyses are mandated by Rule 702 Federal Rules of Evidence. Once this determination is made, the court must determine whether to exclude expert testimony under Rule 403, Federal Rules of Evidence.14 Rule 403 addresses exclusions of relevant evidence. ''Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.''15
To judges who may be overcome by the weighty burden of judging whether the proffered science is reliable, the Supreme Court said ''we are confident that federal judges possess the capacity to undertake this review.''16 Further, the Supreme Court made clear that ''the focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.''17 The Court suggested several questions trial courts could consider in making admissibility (reliability) determinations. They are: (1) has the method been tested and can the results be falsified; (2) has the theory been subjected to peer review and publication; (3) what are the known or potential rates of error associated with the results; and (4) whether there exists standards controlling the technique's operation and whether the standards are met.18
''Each piece, or part, of the whole of nature is always merely an approximation to the complete truth, or the complete truth so far as we know it...The principle of science, the definition, almost, is the following: The test of all knowledge is experiment. Experiment is the sole judge of scientific ''truth.''… But also needed is imagination to create from these hints the great generalizations-to guess at the wonderful, simple, but very strange patterns beneath them all, and then to experiment to check again whether we have made the right guess.''19
The legal perspective in the past has been associated with the jury's decision based upon a preponderance of the evidence. Now, through the Daubert opinion, the United States Supreme Court has substantially increased requirements that must be met before a proffer of expert testimony can be made to the jury. Although Daubert assists plaintiffs in presenting cases that do not necessarily hinge on generally accepted scientific principles, defendants have also gained solid legal grounds for forcing plaintiffs to utilize rational, scientifically valid methods to prove their cases. The party that has the stronger argument on scientific or technical grounds will be more likely to win by utilizing scientific or technical experts and motions for summary judgment; but making strong arguments will require attorneys to become more educated in the specific scientific methodology used in fields of study that relate to issues presented and statistical methodologies pertaining to relevance. Gaining the upper hand in science is no easy job for lawyers when keeping up with the law is already so demanding. Selecting appropriately qualified experts is an area in which legal assistants can substantially increase their responsibilities in the preparation and trial of lawsuits. Ultimately, however, it is the judge who makes the determination at the trial level.
Federal judges are being required to gain more detailed understanding of proper scientific methodologies and they cannot overlook methodologies utilized by non-scientific experts (technical experts) as noted in Rule 702 of the Federal Rules of Evidence; however, the Rules provide them with some practical options. Under Rule 706, Federal Rules of Evidence, judges may appoint experts of their own choosing or may exclude expert evidence on the basis that its ''probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.''20 To assist the federal judiciary in understanding correct methodologies employed by professionals in the fields of epidemiology, toxicology, survey research, forensic DNA evidence, statistics and economics, the Reference Manual on Scientific Evidence was published in January 1995 as a cooperative effort by the Federal Judicial Center and the Carnegie Corporation's Task Force on Judicial and Regulatory Decision Making. It was prepared specifically in response to the increased use of scientific and technical evidence in trials and the necessity of the federal judiciary to discern these matters intelligently in light of the guidelines set forth in the Daubert decision. It is an excellent reference tool for lawyers and legal assistants. Underscoring the extent of utilization of science in trials, the Reference Manual notes that product liability and patent cases were the types of cases where federal judges most frequently utilize court appointed experts, often ''in response to a combination of unusual events, such as a failure by the parties to provide a basis for a reasoned resolution or a technical issue, combined with a perceived need by the court to protect poorly represented parties (such as minors or members of a certified class action).''21
In short, the Court accepted application to state trials the U.S. Supreme Court's holding in Daubert that Rule 702 of the Federal Rules of Evidence superseded Frye and that a ''general acceptance'' standard should not be applied in federal trials.23 The Court noted that in accepting the Daubert standard it had also been persuaded by the Texas Court of Criminal Appeals' decision in Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992) which held ''that evidence is reliable if the underlying theory and the technique applying it are valid, and if the technique was properly applied on the occasion in question. Kelly, 824 S.W.2d at 573.''24 In making its decision in E.I. DuPont the Court reasoned that since the adoption of Rule 702 in 1983, it had not had occasion to address the proper standard for the admission (versus legal sufficiency) of expert testimony and that a new standard would reduce the number of differing conclusions on admissibility by courts of appeals, as well as the potential for abusive use of expert witnesses in complex cases.25 Further, the Court noted that in objecting to proffered expert testimony, once the opposing party objects to admissibility, the proponent bears the burden of demonstrating admissibility; the objecting party does not carry the burden of proving inadmissibility.26
In E.I. DuPont the Court overruled the plaintiffs' objection that ''allowing the trial judge to assess the reliability of expert testimony violates their federal and state constitutional rights to a jury trial.''27 The Court's holding on this point created the basis for the dissenting opinion filed by Justice Cornyn, joined by Justices Hightower, Gammage and Spector. The majority reiterated a prior holding that ''the right to a jury trial `was designed to preserve the basic institution of jury trial in only its most fundamental elements, not the great mass of procedural forms and details.' Parklane Hosiery Co. v. Shore, 439 U.S. 322, 337, 99 S.Ct. 645, __.''28 The Court reasoned that under the new standard of admissibility, ''the jury will continue to assess the weight and credibility of the proffered testimony'' while the court will determine issues regarding reliability of the underlying theories or techniques utilized by experts.29
Justice Cornyn's concern focused on the potential for abuses of discretion if findings of fact are made without sufficient information upon which a rational decision may be made, and as reflected in the appellate record.30 Justice Cornyn compared Tex.R.Civ.Evid., Rule 701 (limits lay opinions to those based on the lay witness's perception) with Rule 703 (allowing expert testimony to be based on inadmissible evidence) and also cited Kelly v. State in support of his opinion that judges rely on expert opinion and are not competent, as non-scientists, to assess validity of scientific opinion testimony. In his dissent he said:
I believe that judges should refrain from determining the admissibility of evidence on such dubious forays into scientific inquiry.… But even if we accept the propriety of this enhanced fact-finding role for the judge, we cannot allow judges to make findings of fact that have no support in the record.… The requirement that findings of fact have support in the record is especially relevant when the court is determining the validity of scientific evidence because, by definition, such evidence is beyond the competency of non-scientists.31
This writer can in no way measure the vast importance of Justice Cornyn's opinion, however, it is well worth noting that the jury will no longer determine the validity of expert opinion testimony, only the weight of testimony determined admissible by the court. If a proper record of a court's foundation for refusing expert testimony is not made, factors influencing an expert's opinion that was refused, such as confidence levels, confounding factors, experimental methodologies and the like, will not be considered on appeal. Justice Cornyn noted that no rebuttal evidence had been offered in E.I. DuPont to controvert the reliability of the plaintiffs' expert testimony. Under Daubert, and now E.I. DuPont in state courts in Texas, validity and reliability will be determined by the court.
Needless to say, increasing our understanding of science and technical matters will be challenging. These new standards of admissibility must be carefully considered when selecting testifying expert's and in developing a case for trial. Familiarizing yourself with the cases cited and the other references noted will help mollify any apprehension toward science that you might have. Don't stop here though because these issues are too important. These cases are well worth your future attention.
If you are interested in additional information, in May 1995 District 1 (Houston) of the Legal Assistants Division State Bar of Texas sponsored a one hour program which focused on the Daubert case and the use of statistical evidence at trial. The program was accredited by the MCLE Department of the State Bar of Texas for 1 hour of MCLE credit. Copies of the bound written materials are available for $15.00 (postage is included). If you would like to obtain a copy, please forward a check, made payable to the Legal Assistants Division, to Kristin Wilkinson at P.O. Box 2180, Room 1558-P, Houston, Texas 77252-2180 and I will be happy to send it to you. Also, Daubert has been reviewed quite extensively in various law reviews, one in particular being Vol. 15, Nos. 6-7 of the Cardozo Law Review. The Reference Manual is available from legal publishers.