The Basics of Expert Testimony

the basics of expert testimony:

admissibility, believability, and affirmability

Judge Lisa S. Walsh
Margaret Kosyk

Prepared for panel discussion held by

Daily Business Review and American Inns of Court

July 27, 2012

Introduction

Expert testimony is not a simple science. In order to be legally admissible in court, the potential testimony will need to pass the state or federal procedures. Although states and the federal government in the last century had embraced a standard requiring expert evidence to have “general acceptance” in the scientific community,the federal courts and many state courts havemoved towardjudicial “gatekeeping” in order to weed out “junk science.”[1] But admission of the expert testimony into court is only the first step. All of that will mean nothing if the witness does not stand a chance of being believed by a jury. The expert will not only need to communicate effectively, but s/he will also need to withstand cross-examination.[2] The final consideration in expert testimony is how it will hold up on appeal. Several Florida Supreme Court and U.S. Eleventh Circuit cases highlight the nuances of what makes an expert’s testimony sustainable.

Admissibility

1. Admissibility Overview

Courts evaluated expert evidence under the “general acceptance” standard proposed in Frye v. United States throughout the greater part of the 20th Century.[3] In 1993, the Supreme Court adopted a new framework for evaluating scientific expert evidence in Daubert v. Merrell Dow Pharmaceuticals.[4] This new standard established the role of the judge as “gatekeeper” and required four considerations: falsifiability, peer review, error rates, and “acceptability” in the scientific community.[5] Despite the adoption of the Daubert standard in federal courts, Florida still embraces the Frye standard.[6] In Florida Frye is only applicable in cases that involved new science, however, and it is not applicable in cases that involve “pure opinion” testimony.[7] Some believe this leaves far too many loopholes for attorneys to get around in presenting expert evidence.[8] Others believe that it makes no practical difference whether a state remains with the Frye standard or adopts Daubert.[9]

1. The Frye Standard
2. Frye v. United States

Frye v. United States was a criminal case involving a blood pressure “deception test” (an early polygraph).[10] The defendant subjected himself to one of these “deception tests,”and offered the scientist who conducted the test as an expert witness to testify to the results.[11] The defendant did not cite case law, scientific studies, or medical literature in support of his theory.[12] The Circuit Court held:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.[13]

The court concluded that the testimony on the “deception test” was not admissible because it lacked scientific recognition among physiological and psychological authorities.[14]

1. Florida’s Four Step Process for the Frye Test

The Supreme Court of Florida has adopted the Frye Test and requires a four step procedure in determining if scientific evidence is admissible:

First, the trial judge must determine whether such expert testimony will assist the jury in understanding the evidence or in determining a fact in issue.. . Second, the trial judge must decide whether the expert's testimony is based on a scientific principle or discovery that is “sufficiently established to have gained general acceptance in the particular field in which it belongs.” . . . The third step in the process is for the trial judge to determine whether a particular witness is qualified as an expert to present opinion testimony on the subject in issue. . . . Fourth, the judge may then allow the expert to render an opinion on the subject of his or her expertise, and it is then up to the jury to determine the credibility of the expert's opinion, which it may either accept or reject.[15]

1. “Pure Opinion” Testimony and the Frye Test

In Marsh v. Valyouthe plaintiff’s expert witness presented that a series of car accidents caused her fibromyalgia, and the defendant moved to exclude the testimony.[16]TheFlorida Supreme Court held that the testimony is not subject to Frye, explaining that by definition the Frye Test applies only to new or novel scientific techniques, and fibromyalgia had been classified since 1990.[17] In addition, because the plaintiff’s witnesses based his opinion and diagnosis on his own experience and training, the testimony could be considered “pure opinion” testimony, and therefore was not subject to the Frye test.[18] The Court highlighted the fact that the methodology of the expert had not been challenged, only the conclusions and stated, “Trial courts must resist the temptation to usurp the jury's role in evaluating the credibility of experts and choosing between legitimate but conflicting scientific views.”[19]

In Andries v. Royal Caribbean Cruises, Ltd., the plaintiff's experts testified that there was an association between staph infections and IgA nephropathy. Andries v. Royal Caribbean Cruises, Ltd., 12 So.3d 260 (Fla. 3d DCA 2009). Following Marsh, the Third District Court held that the plaintiff’s expert testimony was admissible because the anecdotal association between staph infections and IgA nephropathy had been recognized formally in published research.Id. The fact that the studies were not conclusive on the link did not make the expert opinion “new or novel” under Frye.Id. at 264-65. The court further reasoned,

The experts' disagreements on the nature of the staph-IgA nephropathy link, and the lack of certainty regarding the precise causative process, are genuine disputes that should be decided by a jury. . .It is precisely this sort of disagreement that, under Marsh, amounts to a duel of competing-and admissiblepure opinions.[20]

1. The Daubert Standard
2. Daubert v. Merrell Dow Pharmaceuticals

InDaubert v. Merrel Dow Pharmaceuticals, Inc., the plaintiffs’ experts testified that Bendectin, a drug manufactured by the defendant, caused the plaintiff's birth defects after it was ingested by their mother during pregnancy.[21] The majority of the scientific field did not agree that the drug caused these types of deformities, and the Federal Drug Authority (FDA) continued to approve of its use in pregnant women.[22]

The U.S. Supreme Court held that the Frye standard had been superseded by the Federal Rules of Evidence. Under this standard,“general acceptance” in the scientific communitycould be considered, but it was not a requirement.[23] Rather than relying strictly on “general acceptance,” the trial judge must ensure that the expert's testimony is based on both a reliable foundation and that it is relevant to the subject matter of thecase.[24] In determining if it is reliable, the court noted several flexible factors:

1) Falsifiability: whether the conclusion or methodology being espoused is subject to being tested;

2) Peer Review: whether the conclusion or methodology has been subjected to peer review and publication, such that substantive flaws will likely have been flushed out;

3) Error Rates: whether standards exist that control the methodology's operation, and, if so, the known or potential rate of error; and

4) Acceptibility: whether the conclusion or methodology is generally accepted.[25]

In determining relevance the Court stated that evidence or testimony must be helpful in understanding a fact at issue.[26] The Court further explained, “Rule 702's ‘helpfulness’ standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.”[27]

1. Frye Versus Daubert
2. Should Florida adopt Daubert?

Kenneth Waterway and Robert Weill suggest that Frye’s “general acceptance” test is a “nebulous” standard that does not properly check the credibility of the expert evidence.[28] They claim, “In Florida, there is virtually no stopping a lawyer who seeks to influence the jury with a ‘hired gun’ expert espousing junk science – the lawyer merely needs to aim for one of the gaping holes in Frye’s applicability.[29]

In particular, they fault the Florida Supreme Court precedent ensuring that the test is not triggered unless the science is deemed “new science.”[30] Although this term is not defined, they point out that the courts have found these to be excluded from that category: handwriting analysis, footprint analysis, tire thickness, global positioning satellite technology, and basic DNA analysis.[31] Also, a problem, according to Waterway and Weill, is the fact that Frye does not apply the “general acceptance” test to an expert’s reasoning or conclusions.[32] They find further fault with the precedent that “pure opinion” testimony is beyond the reach of the Frye test.[33] They say it is counterintuitive to allow an expert to favor his opinion over what is generally accepted in the scientific community.[34]

Instead, Waterway and Weill laud Daubert as the standard empowering judges to be the “gatekeepers” by allowing them broad discretion in addressing the reliability and relevance of expert testimony.[35] They note that the Daubert controls admissibility of expert testimony in 33 states and in federal courts in all 50 states.[36] Florida is one of two in the south and one of 12 in the United States that still hold to the “outdated” Frye test.[37] They also note that the Florida legislature had made an attempt to adapt the Daubert standard by amending the Florida Evidence Code. Section 90.702 states,

If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.[38]

1. Does it really matter?

Edward Cheng and Albert Yoon suggest that it really makes no difference which standard is chosen, Frye or Daubert.[39] Cheng and Yoon concede that in federal courts Daubert has had a strong pro-defendant effect in the civil context, empowering defendants to exclude scientific evidence, and therefore, improving their chance at summary judgment and avoiding plaintiff-friendly juries.[40] Whether a state adopts Daubert or Frye may not, however, have an effect on the scientific evidence that a court chooses to allow.[41]

Two studies have indicated that whether in federal or state courts, in the criminal context, the choice of Daubert of Frye has had little effect statistically on the rates of evidence admitted.[42] Cheng and Yoon chose to conduct their study by focusing on the effect Frye or Daubert would have on defendants in civil cases who chose to remove cases from state to federal court.[43]

First they studied removal to federal court in cases in New York and Connecticut from 1994 to 2000.[44] New York was their control group, as it continued to adhere to the Frye standard.[45] Connecticut, however, switched from the Frye to Daubert standard in 1997.[46] They found that the difference in removal rates between the two states during the time period studied was not statistically significant.[47] In the national study, Arkansas, Connecticut, Indiana, New Mexico. North Carolina, Oregon, and Tennesee changed to Daubert while Alaska, Arizona, Florida, Kansas, Michigan, Minnesota, Missouri, New York, and Washington remained with the Frye standard. [48] Again, in this study, they found that the Daubert had little statistical effect on the removal rates from state to federal court.[49]

Chen and Yoon concluded that the debates about the pros and cons of adopting Daubert versus Frye were mostly superfluous.[50] They suggest that the reason Daubert was so influential was not so much in the formal doctrine, but in the fact that it raised awareness of the problems of junk science.[51] They recommend that Daubert be adopted by all states, not for its superiority, but for continuity and to avoid confusion.[52] They also recommend that improvements in the evaluation of scientific evidence would come from “softer” solutions, like judicial education programs and official literature such as the Reference Manual on Scientific Evidence.[53]

believability

1. believability overview

After the expert testimony is admitted, the next challenge becomes how the expert will be perceived by the jury. There are several considerations, including background and qualifications, whether the expert is able to communicate effectively, whether that communication will include visual aids, and any prior testimony the expert has given on the subject at hand. Additionally, the expert will need to be able to withstand cross-examination after answering challenging questions about financial gain, any previous plaintiff or defendant bias, and whether he or she is simply a professional witness or “hired gun.”[54]

1. Consider
2. Background and qualifications

Often, an attorney will rush through a recitation of the expert’s qualifications to the jury, and then moveon to the “important” matters.[55] But making sure that the jury understands the significance of those qualifications can be critical in establishing whether this witness or opposing counsel’s witness is the “better” expert.[56] The purpose of presenting the expert’s testimony is not simply to educate the jury in the matter at hand.[57] The jury must be motivated to completely accept the evidence and know the witness is to be trusted.[58]

1. Is the expert a communicator / teacher?

Another part of establishing an expert’s credibility is how well he is able to communicate to the jury.[59] Jurors often construct a story when trying to and make sense of the evidence.[60] In doing so, they put together only those elements that make sense within their construct, and discard any elements that do not.[61] Therefore, an expert must communicate in a way that will easily appropriate the evidence into the jury’s story.[62]

1. Visual aids

One of the best ways for an expert to help a juror to remember the information given in testimony is through the use of visual aids.[63] One study indicates that people retain much more when presented with information both visually and orally.[64] In comparison with oral-only presentations, participants in the study remembered twenty percent more three hours after an oral-visual presentation and six times more seventy-two hours after the presentation.[65] We live in a visual culture, as indicated by a 1998 census that reported that the average person watched television and video almost five times as often as they read.[66]

1. Prior testimony

It is important to discover any previous reports that the expert witness has written about on the subject at hand.[67] Attorneys should ask the witness for previous video depositions and trial transcripts or search the record themselves.[68] This research helps to determine if the witness is able to communicate articulately and confidently, how s/he reacts to the attorneys, and whether s/he is able to stay focused.[69] Most importantly, the expert will need to be consistent with any prior positions that s/he has held.[70]

1. the cross
2. How will the expert hold up on cross-examination?

Experts need to be prepared to answer challenging questions on cross-examination.[71] It is common for expert witnesses to answer beyond the scope of the question, and many attorneys take advantage of this by skewing the questions on cross-examination.[72] The following are possible questions that could be asked on cross:

If the data you used to form your opinion turns out to be different than what you used, will your opinion change?

Did you make any assumptions while forming your opinions?

How much uncertainty do you have?

How certain are you?[73]

1. Very high hourly?

Other common questions on cross-examination will attempt to discredit the witness as a “hired gun”:

You are a professional witness? You are getting paid to be here today?

You are being paid for your opinions?

How much do you get paid per hour?[74]

1. Does the expert have a stake in the outcome?

Rule 4-3.4(b) of the Rules Regulating the Florida Bar states that a lawyer shall not:

fabricate evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness, except a lawyer may pay a witness reasonable expenses incurred by the witness in attending or testifying at proceedings; a reasonable, noncontingent fee for professional services of an expert witness; and reasonable compensation to reimburse a witness for the loss of compensation incurred by reason of preparing for, attending, or testifying at proceedings.[75]

Furthermore, common law in most jurisdictions find that it is improper for an expert witness to obtain a contingency fee.[76]

1. Is the expert much more Defense or Plaintiff oriented?

Many professional witnesses will work for both plaintiffs and defendants, but some have a preference of one over the other.[77] It is important to know before hiring a witness if they have any particular bias.[78] The best experts maintain a balance between representing the client and maintaining objectivity.[79] One way to tell if an expert is merely stating what you want to hear is if they come to the conclusion quickly without reviewing the issue when initially asked.[80] Although it is good to know that the expert is willing to testify on your clients behalf, it is equally important that the evidence stand up under stringent analysis.[81]