Expert Article Library

Daubert v. Merrell Dow, and Kumho Tire Company v. Carmichael

By John W. Kennish, CPP  E-mail: john@kennish.com

Introduction

The Daubert v. Merrell Dow Pharmaceuticals, Inc. [1] and subsequently, Kumho Tire Company v. Carmichael [2] cases, have changed how business will be conducted regarding the admissibility of experts as a participant in the litigation process, as well as their testimony. Although these decisions apply to the Federal Courts, many State Courts will presumably also develop Daubert like reliability criteria.

Change is inevitable, and can be viewed as either positive, or negative, depending upon one's relevance to the issues, at a given point in time. Many view the Daubert and Kumho decisions for being overly restrictive, and in essence, milestones within which all experts and their testimony will automatically be rendered inadmissible. Such a reaction is predictable from an individual such as an "expert" who may not be adequately qualified, nor experienced --- and in fact is the exact caliber of expert these decisions are intended to address.

However, there are also other professional consultants who provide litigation support services, to include expert testimony, who are delighted with these decisions for three reasons;

First, as professionals in the true sense of the term, they welcome any new standard, or criteria that will better define the expert, his role, and work product in this very sensitive position. Simply, being an expert is often a very difficult role within which the rules are not always clearly defined, and in fact may be developed, and experiences learned, during the heat of the moment. Guidance from the higher courts is therefore welcome, as by better defining such criteria, the level of discretion that is available to the lower courts, and the involved attorney is reduced. This will help better define the expert's role, expectations, and work product.

Second, this enhanced approach will have a natural selection process upon those who represent to be experts, but now may not withstand closer examination. Given the consequence for anything less than the best in this role, only the best now need apply. Those who are qualified should practice, and those who are not, should not. The criteria set by these cases will now provide a tangible basis for making those sometimes difficult selection decisions.

Thirdly, and what is the most important, the courts, lawyers, and experts will be forced to simply do a better job of it. This is a positive evolutionary step as experts will be forced to improve upon their qualifications, and quality of testimony. Lawyers will be forced to utilize only qualified experts. And the courts will be forced to render closer decisions. Are these a detrimental set of decisions, or the catalyst for progressive change? When the overall goal of the process is considered, Daubert and Kumho can only be for the better.

As an example of such positive change, the Kumho decision came out as of late March 1999. In direct response, and during April of 1999, the IAPSC [3], the International Association of Professional Security Professionals, established a proactive "Forensic Methodology Committee" to study, define, and enact methodology to assist IAPSC members improve their expert position, service, and product to the legal community in consideration of these decisions. And considering the professional character of this organization, and members; this goal will be accomplished. The result will be immediate advancement for the IAPSC members, the legal clients they serve, and the courts they
frequent.

The Security Expert's Role for Plaintiff

The security expert is usually engaged for high exposure "reasonable security" or "premise security" cases. These cases may result when those who have responsibility to provide a reasonable level of protection for persons, property, and places fail to do so, and are sued for the consequences. Often, these cases result from brutal crimes against persons to include homicide, rape, abduction, and aggravated assault. The testimony in these cases can be emotional, riveting, and identified with by the members of a jury.

These incidents can occur in a wide range of settings to include for example bank lobby, ATM and night depository locations, office buildings, apartment locations, arcades and pool halls, convenience stores, pizza delivery operations, health care facilities, high schools and colleges, highway rest areas, motels, night clubs and taverns, housing projects, resort locations, restaurants, retail stores, service stations, shopping malls, theme parks, trucking operations, sporting events, concerts, security guard operations, and etcetera.

The potential for liability in the form of physical and psychological impacts upon the victim, and now the plaintiff in these cases is normally based upon the following variables, which the security expert must assist to establish;

  • Did the defendant owe a duty to protect and/or provide a reasonable degree of security to the plaintiff?
  • Did the defendant then fail to provide this reasonable level of security, and breach this duty?
  • Was the lack of this reasonable level of security the proximate cause in fact of the incident under review?
  • Was the failure of this security the foreseeable cause of the incident?
  • Did the plaintiff suffer harm, injury, or loss as a result?

Although the security expert is not a scientific expert, he is a technical expert whose qualifications, and experiences are often vital to understanding the features of the case, defining reasonableness, and then establishing, or denying, a claim of negligence. In many jurisdictions the use of a security expert for such cases is not optional.

The security expert may support plaintiffs' case by rendering opinions that regard the use of administrative controls, facility design considerations, security equipment applications, and the use of security personnel as it relates to the proactive, or preventive efforts of an owner as it regarded the potential for criminal acts to occur on his property. In turn, the security expert may then explain just how a breach of these security principles or standards in fact caused, or permitted an environment of opportunity to exist, and a crime to occur.

The Security Expert's Role for the Defense

Or in a reverse fashion, the expert may shift the aim of the case, and allegations of negligence against an owner or landlord, in favor of the defense by supporting that the security effort was in fact reasonable and prudent, and focusing rather upon the actions of the criminal, or perhaps the victim, or other circumstance as the primary, and causal factor of the incident. Or he may attack the required elements by developing a denial to the duty owed by the owner to protect the plaintiff, that such duty was breached when it was not, or that such a breach in fact was not the proximate cause of the incident.

Cause of Action

The underlying cause for action in these cases lies in the position that certain conditions lie within the owner's ability to control, and that in some instances these conditions, which may be both foreseeable and preventable, are the elements which often facilitate the commission of a crime. Crimes are very seldom committed at random, and without a motive, means, and opportunity being present. Criminals generally prefer to commit crimes in an environment where they will not be identified, or captured. They therefore often seek locations which offer this opportunity, without risk and with the perception, or reality, that they "can get away with it." Simply, criminals often selects their sites and victims, based upon their perception and likelihood of success, and escape.

In a reverse fashion, it is necessary to remember that the primary purpose of an owner's proactive security program is to deter crime before it occurs, and not to wait, and then react in a traditional reactive enforcement mode. What actions the owner takes, or fails to take, will directly result in an environment that supports, or does not support, the opportunity the prospective criminal is seeking to act, given that he already has the motive, and means. While no single safeguard will build a total barrier against crime, reasonable efforts directed toward specific locations, environments, and risks, can in fact be very effective in deterring criminal acts. And likewise, a lack of reasonable effort will result in a condition that will more likely than not, support future criminal activity.

The Security Expert's Qualifications

Traditionally the security expert has been a retired law enforcement person, who supplemented his retirement income with periodic "consulting" work. Simply, as there was no true security profession defined, there often were no other real options available.

However, times have changed and this has been repeatedly confirmed by serious security related incidents. The role of security has become a vital social and recognized business risk management function, and the field is now represented by true security professionals, who are available to fulfill the role of experts. As this evolution continues, and in light of Daubert and Kumho, only recognized security experts with suitable backgrounds should be engaged. This selection process criteria lie within the control and prerogative of the case attorney, and it should represent an adequate due diligence effort to assure later satisfaction on the part of the court.

The security expert should be qualified, experienced, creditable, and present the best of credentials. Regarding the presence of a significant law enforcement background, it is noted that while some degree of military or law enforcement experience is positive, the stated mission of the law enforcement agency is to reactively enforce the law, while the mission of the security professional is to act in a proactive mode. One profession is conditioned to react and enforce, while the other concentrates upon prevention, and keeping such incidents from occurring in the first place. Using bank robbery as an example, there is little satisfaction in a security program that allows the incident to occur, and then prides itself on investigative success. Such an approach can lead to tragic consequences. Rather, the true security professional will strive to develop an anti-robbery program where prevention is the goal. There is a significant difference between the two approaches, and case opinions and results, will reflect this difference of philosophy.

Further qualifications should include relevant employment history, technical training, formal education, publications, professional membership and certification, trade conference attendance, and prior expert experience. His, or her skills should include the ability to communicate accurately and clearly, to access crime conditions and statistics, conduct a risk survey, identify trends and details, possess knowledge of relevant laws, codes, regulations and standards, relate to economic and social variables, be able to access security operations, equipment, and personnel applications from a strict cost-effective verse's efficiency and effectiveness perspective. All of this should relate to the case components of foreseeability, inherent risk, expectation, false sense of security, and adequacy. An expert should also carry a reputation for being responsible, self-motivated, highly ethical, and able to organize and produce quality and accurate results on a timely basis.

In total, the security expert must be qualified to render opinions, with a reasonable degree of professional expertise and certainty, regarding the security program in question, and its relationship to the incident under study in an overall relation to that particular kind of incident, organization, and social setting and this in a comparative, and accepted way.

However, during the course of the normal reasonable security or premise security case, the security expert is not likely to provide scientific testimony. Although the security expert is vital to these cases from a technical perspective, other types of experts are normally engaged to support any scientific claims that may arise.

Impact of Daubert, and Kumho Tire Company on Expert Testimony

Daubert v. Merrell Dow, a 1993 decision, regarded a case where scientific testimony was a critical element of the proceedings, and stated in part: "with "scientific" implying a basis in the methods and procedures of science -- controlled scientific methods, and validation --. If scientific testimony is to be offered, the trial judge must determine whether that reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts at issue." Simply stated, does the expert's scientific testimony rest on reliable scientific foundation, and is it relevant to the case at hand?

  •   "Proposed testimony must be supported by appropriate validation -- "good grounds" based on what is known. In short, the requirement that an expert's testimony pertain to "scientific knowledge" establishes a standard of evidentiary reliability."

    This tendency was subsequently expanded by Kumho Tire Company v. Carmichael, a 1999 case, which stated in part: "Applies to the testimony of other experts who are not scientists and expands the court's reliability and relevancy obligation to all expert testimony which is based on "technical" and "other specialized" knowledge which likely are in turn is based in great part "on skill or experience-based observations." While the court has "flexibility" in this regard, generally the Kumho decision places all expert testimony -- "scientific" -- "technical" -- or "other specialized" at the same level of scrutiny.

  •   "The trial judge's effort to assure that the specialized testimony is reliable and relevant can help the jury evaluate that foreign experience, whether the testimony reflects scientific, technical, or other specialized knowledge."

  •   "Engineering testimony rests upon scientific foundations -- In other cases, the relevant reliability concerns may focus upon personal knowledge and experience. There are many different kinds of experts, and many different kinds of expertise."

  •   "We agree that the factors identified in Daubert may or may not be pertinent in
    assessing reliability, depending on the nature of the issue, the expert's particular
    expertise, and the subject of his testimony."

  •   "The objective of that requirement (Daubert) is to ensure the reliability and
    relevancy of expert testimony. It is to make certain that an expert, whether basing
    testimony upon professional studies or personal experience, employ in the courtroom
    the same level of intellectual rigor that characterizes the practice of an expert in the
    relevant field."

  •   "We conclude that the trial judge must have considerable leeway in deciding in a
    particular case how to go about determining whether particular expert testimony is
    reliable."

  •   "No one denies that an expert might draw a conclusion from a set of observations based upon extensive and specialized experience. -- the test is rather "that district courts must "scrutinize" whether the "principles and methods" employed by an expert "have been properly applied to the facts of the case."

    In the Kumho case, a tire expert essentially based his tire case failure opinions upon his own theory which was not present, validated elsewhere in the tire industry, nor used by other tire experts. In essence, his theory was unsupported within that sector, and as solely his own, and it was deemed to not be reliable by the court -- "The court ultimately based its decision upon the expert's failure to satisfy either Daubert's or any other set of reasonable reliability criteria."

    Conclusion

    With the U.S. Supreme Court's institution of these new key words, engaging experts who possess the highest of qualifications, the best of methods, sound adherence to principal, and proven records, may likely be the most logical, and effective way to proceed to attain both reliability, and relevance in any case where experts, are they security, or otherwise, will play a part.

    1. U.S. Supreme Court, 509 U.S. 579, No. 92-102
    2. Ibid, 131 f.3d 1433, No. 97-1709
    3. International Association of Professional Consultants, 1444 "I" Street, N.W., Suite 700, Washington, D.C. 2005-2210, (202)712-9043