The "general acceptance" test was plagued with problems from the outset.  First and foremost was the lack of objectivity in defining the terms "relevant scientific community" and "general acceptance."  The terms were vague and susceptible to subjective interpretation by the courts, allowing trial judges to control the admissibility of expert testimony based on what they personally believed was credible and reliable. (8)

  However, the complaint most commonly voiced was that the test was too rigid and inflexible, resulting in the exclusion of evidence that should have been admitted as reliable and relevant. In particular, applying the common law test often resulted in the exclusion of reliable scientific evidence simply because it was novel and not generally accepted in the scientific community.

  The attack on the general acceptance test escalated in the years following the 1975 adoption of the Federal Rules of Evidence.  Proponents for the elimination of the test argued that the federal rules superseded Frye and were void of any reference to the general acceptance standard.

  In 1993, the debate over Frye reached a climax when the Supreme Court granted certiorari in Daubert.  The petitioners were two children and their parents, who alleged that the children's serious birth defects had been caused by the mother's prenatal ingestion of Bendectin, a prescription drug marketed by Merrell Dow Pharmaceuticals. 

  The petitioners' experts concluded that Bendectin likely caused the birth defects.  The trial court, however, determined that the evidence presented by the experts did not meet the general acceptance standard for admission.  The appeals court, citing Frye, agreed.

  The Supreme Court reversed, holding that the Federal Rules of Evidence superseded the Frye Test.  Specifically, the Court stated that "no common law of evidence remains" (9) and that nothing in the rules "establishes 'general acceptance' as an absolute prerequisite to admissibility." (10).  More, the Court said that the "rigid" general acceptance requirement of Frye was "at odds with the 'liberal thrust' of the federal rules and their 'general approach of relaxing the traditional barriers to opinion testimony.'" (11). 

  Proponents of the general acceptance test argued that this ruling would open the floodgates to unfounded and unreliable evidence.  They feared that juries would be misled and confused by evidence that was not credible and generally accepted in the scientific community.  The Court addressed these concerns by levying the task of managing the admission of evidence on the trial judge.  The  Court charged the trial judge with assuming the role of "gatekeeper," allowing the admission of reliable scientific evidence and excluding less reliable evidence.

  To assist the trial judge in the gatekeeping role, the Court listed four nonexclusive factors to be considered when evaluating expert testimony:

• whether the theory can be tested;
• whether the theory or technique has been subjected to peer review as well as publication;
• the potential rate of error; and
• the existence and maintenance of standards controlling the technique's operation. (12)

  The Court granted certiorari in Daubert to address what courts and commentators alleged was an inflexible and problematic test for determining admissibility.  However, despite the Court's attempt to "liberalize" the admission of expert testimony, the ruling arguably has resulted in more confusion.  Many commentators allege that the decision failed to accomplish what it set out to do--that is, liberalize the admissibility of expert evidence.  Rather, Daubert "created a more stringent test for expert evidence admissibility." (13)

  For instance, lower courts have inconsistently applied the ruling. Some courts have rigidly applied the four Daubert criteria, while others have limited the holding only to scientific expert testimony, despite the contention by some that the Supreme Court intended to extend the decision's principles to all expert testimony. (14)  In 1999, the Supreme Court addressed these issues in Kumho.

  At issue in the case was the testimony of the plaintiff's expert in tire-failure analysis that the blowout of a tire that killed one passenger in the vehicle and severely injured others was caused by a defect in the tire's manufacture or design.  The expert's opinions were primarily based on his technical skill and extensive experience in the field rather than scientific principles.  The defendant argued that the expert's testimony relied on methodology that failed to meet Rule 702's reliability requirement.

  Applying the Daubert factors to the evidence, the trial court ruled that the testimony was inadmissible. (15)  The Eleventh Circuit reversed, holding that "the Supreme Court in Daubert explicitly limited its holding to cover only scientific principles" rather than "skill- or experience-based observation." (16) In this case, because the expert did not employ scientific principles but rather relief on his technical experience, the court held that the admissibility of the evidence was not controlled by Daubert.

  The Supreme Court granted certiorari and held that "Daubert's general holding--setting forth the trial judge's general 'gatekeeping' obligation--applies not only to testimony based on 'scientific knowledge,' but also to testimony based on 'technical' and 'other specialized' knowledge." (17) Furthermore, the Court said, "The test of reliability is 'flexible,' and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts in every case," (18)  According to the Court, Daubert makes it clear that the list of factors for determining admissibility does not constitute a "definitive checklist or test." (19)  Rather, the criteria were "meant to be helpful, not definitive." (20)

  Significantly, Kumho granted trial courts broad discretion in determining the reliability of expert testimony and built on the Court's earlier decision in Joiner. (21)  In that case, the plaintiff's experts testified that the plaintiff's lung cancer could have been caused by polychlorinated biphenyls (PCBs) that were present in his workplace.

  The district court granted summary judgment on the defendant's motion to exclude the testimony.  The Eleventh Circuit reversed, holding that "because the Federal Rules of  Evidence governing expert testimony display a preference for admissibility, we apply a particularly stringent standard of review to the trial judge's exclusion of expert testimony." (22) 

  The Supreme Court granted certiorari and held that the court of appeals erred in applying a "particularly stringent" standard of review.  The Court recognized the trial judge's broad discretion in determining the admissibility of expert testimony and held that the proper scope of appellate review of admitted expert testimony is limited to an abuse of discretion standard. (23)

  Despite Kumho's significant steps toward clarifying the trial court's role in admitting expert testimony, the decision left at least one question unanswered:  When an appeals court reverses a lower court's decision admitted expert testimony, must it remand the case for a new trial, or may the appeals court direct the trial court to enter a judgment notwithstanding the verdict?  The Supreme Court addressed this question earlier this year in Weisgram.

  Bonnie Weisgram died of carbon monoxide poisoning during a fire in her home.  At trial, her family's experts testified that a defect in the heater caused the fire.

  On appeal, the Eighth Circuit held that the evidence supporting the product defect charge was speculative and should not have been admitted.  The court concluded that the remaining evidence was insufficient to support a jury verdict for the Weisgrams. Although it recognized its discretion to remand the case for a new trial, the court rejected the contention that it was required to do so and directed judgment as a matter of law for the defendants. (24)  The Supreme Court affirmed the decision, ruling that the court had acted within its power under Federal Rule of Civil Procedure 50(a) when it determined that admitted expert testimony was unreliable and therefore inadmissible under Daubert and Kumho. (25)

Proposed amendment

  In light of the Court's recent decisions on expert testimony and the disparate treatment of Rule 702 by the district courts, the advisory committee for the Federal Rules of Evidence deemed it necessary to amend the rule.  The proposed amendment reads as follows:

  As the advisory committee notes indicate, the amendment affirms the trial court's role as gatekeeper, as espoused in Daubert.  Consistent with Kumho, it provides that all types of expert testimony are subject to an admissibility determination by the trial court based on evidence of reliability.  The rule also acknowledges that the criteria espoused by Daubert are neither exhaustive nor exclusive.

  The structure of the amendment appears to require that a court find that each prong of the rule be satisfied before evidence is admitted.  However, all three prongs are essentially part and parcel of one another and should be considered together rather than separately. (27)  Indeed, the Supreme Court in Kumho, as one commentator noted, "did what should be done in all cases--it looked at all three requirements as if there were one requirement." (28)

  Trial lawyers should be aware of potential problems with the proposed amendment to Rule 702. (29)  For instance, the amendment still fails to define scientific, technical, or specialized knowledge.  The lack of an adequate definition leaves the determination to the trial judge, assuming that the trial judge has adequate knowledge to make this determination.

  In addition, the proposed amendment fails to provide objective guidance for determining the reliability of expert testimony.  Rather, this determination is left to the broad discretion of the trial judge.  As a result, it appears unlikely that the amended rule will cure the disparate treatment of expert testimony by the trial courts.

Litigation tips

  In the wake of these developments, "litigators must prepare their cases with an understanding that heightened scrutiny of all but the most noncontroversial expert testimony is likely." (30)  Trial attorneys should keep the following issues in mind when they handle technically complex cases.

• Initial case screening. This process takes on new importance after Kumho and Weisgram.  The plaintiff's theory must be supported by the expert's opinion, and the expert must be able to conclusively explain his or her methodology.  Plaintiffs can no longer rely on purely technical or skill-based experts to support the case theory without scrutiny by the trial court. (31)  If the theory is speculative and the expert testimony is not well supported, the lawyer should carefully consider whether it is feasible to pursue the claim.
• Discovery.  Trial attorneys should use the broad scope of the discovery rules to garner the information needed to support the expert's methodology.  Areas that should be explored include analytical methods used by the opposing party and its experts, test and field performance data, and research conducted in-house and elsewhere.
• Selection of experts and scope of their work.  Naturally, after Kumho, experts can no longer be selected based solely on how they will testify or on their credentials.  Retained experts must be able and willing to support their conclusions.  Many are not prepared to explain and justify their methods, so the attorney should work with the expert before deposition and trial to ensure that he or she is prepared to meet a Daubert challenge.  Also, the expert should be prepared to support his or her conclusion with a written report or brief. This document can be used to meet Daubert challenges before trial so as to avoid having the evidence excluded at trial.
• Litigation testing and research.  In addition to compiling literature and data that support the expert's analysis and methods, the attorney may need to conduct his or her own testing of the expert's hypothesis.
• Defense expert deposition.  The same rules of admissibility apply to both parties.  When deposing the defense expert, the plaintiff attorney must attack the expert's methodologies and conclusions.  At the same time, the attorney should use the defense expert to support the analytical approach of the plaintiff's expert.  The lawyer should have the expert acknowledge the use of the plaintiff's expert's approach and techniques. (32)

  Despite the Supreme Court's recent attempts to clarify Daubert, and notwithstanding the proposed amendments to Rule 702, courts are likely to continue to struggle with the task of determining the reliability and hence the admissibility of expert testimony.  Unfortunately, there is no surefire method for getting expert testimony admitted.  Using heightened care in screening cases and selecting experts will improve the likelihood that expert evidence will be admitted, but until more objective standards are established, trial lawyers should use the most noncontroversial expert testimony.

1. 120 S. Ct. 1011 (2000).
2. 509 U.S. 579 (1993).
3. 522 U.S. 136 (1997).
4. 526 U.s. 137 (1999).
5. Josue Vazquez, Assisting the Trier of Fact: Rule 702 of the Federal Rules of Evidence and Its Proposed Amendment, 24 RUTGERS L. REC. 2 (2000).
6. 293 F. 1013 (D.C. Cir. 1923).
7. Id. at 1014.
8. Paul C. Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States a Half Century Later, 80 COLUM. L. REV. 1197, 1223 (1980).
9. Daubert, 509 U.S. 579, 588 (citing United States v. Abel, 469 U.S. 45, 51 (1984)).
10. Id.
11. Id. (citing Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169 (1988)).
12. Id. at 593-94.
13. Michael H. Graham, The Expert Witness Predicament: Determining "Reliable" Under the Gatekeeping Test of Daubert, Kumho, and Proposed Amended Rule 702 of the Federal Rules of Evidence, 54 U. MIAMI L. REV. 317, 321 (2000).
14. Carmichael v. Samyang Tire, Inc., 131 F.3d 1433 (11th Cir. 1997), rev'd sub nom. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
15. Carmichael v. Samyang Tire, Inc., 923 F. Supp. 1514, 1521-22 (S.D. Ala. 1996).
16. Carmichael, 131 F.3d 1433, 1435.
17. Kumho Tire Co., 526 U.S. 137, 147; see Graham, supra note 13.
18. Kumho Tire Co., 526 U.S. 137, 141.
19. Id. at 150.
20. Id.
21. 522 U.S. 136.
22. 78 F.3d 524, 529 (11th Cir. 1996).
23. Joiner, 522 U.S. 136, 141.
24. Weisgram v. Marley Co., 169 F.3d 514, 517, 518-22 (8th Cir. 1999).
25. Weisgram, 120 S.Ct. 1011, 1017.
26. COMMITTEE ON RULES OF PRACTICE AND PROCEDURE, JUDICIAL CONFERENCE OF THE UNITED STATES, PRELIMINARY DRAFT OF PROPOSED AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE AND EVIDENCE (1998) (new language in italics).  Pursuant to the Rules Enabling Act, the earliest possible date that the proposed amendment could become effective is December 1, 2000.
27. Graham, supra note 13, at 349.
28. Id. at 351.
29. Id.
30. Stuart A. Ollanik, Expert Testimony: Defeating the Kumho Challenge, TRIAL, Nov. 1999, at 28, 30. The litigation tips described here are garnered from Ollanik's article.
31. Id.
32. Id. at 30-33.

Ira H. Lessfield and Mark A. Sylvesterpractice with the firm of Leesfield Leighton Rubio Mahfood in Miami.

Reprinted with permission of TRIAL(December 2000). Copyright the Association of Trial Lawyers of America.