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Federal Rules Of Evidence Amended To Reflect The Guidelines Of Daubert And Kumho Tire Regarding The Admissibility Of Lay And Expert Opinion Evidence

The Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, 509 US 579 (1973), and Kumho Tire v. Carmichael, 119 S.Ct. 1167 (1999), moved decisively to restrict the use of the hired gun or junk scientist as an expert witness. When properly applied, these cases become the foundation of Motions in Limine and Motions to Disqualify an opposing party's expert witness. As we all know, such motions have now become one of most powerful and productive defense tools in product liability litigation. Effective December 1, 2000, the Federal Rules of Evidence 701, 702 and 703 have been amended to reflect the holdings and guidelines of Daubert and Kumho regarding the admissibility of both lay and expert opinion evidence. Thus all product liability defense practitioners must become intimately familiar with these amendments.

The Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, 509 US 579 (1973), and Kumho Tire v. Carmichael, 119 S.Ct. 1167 (1999), moved decisively to restrict the use of the hired gun or junk scientist as an expert witness. When properly applied, these cases become the foundation of Motions in Limine and Motions to Disqualify an opposing party's expert witness. As we all know, such motions have now become one of most powerful and productive defense tools in product liability litigation. Effective December 1, 2000, the Federal Rules of Evidence 701, 702 and 703 have been amended to reflect the holdings and guidelines of Daubert and Kumho regarding the admissibility of both lay and expert opinion evidence. Thus all product liability defense practitioners must become intimately familiar with these amendments.

Rule 701. Opinion Testimony by Lay Witness.

If the witness is not testifying as an expert the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness; (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue; and (c) not based on scientific, technical or other specialized knowledge within the scope of Rule 702.

Rule 702. Testimony by Experts.

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 if (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the case.

Rule 703. Bases of Opinion Testimony of Experts.

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

Every product liability defense attorney with a case in Federal Court should also carefully review the "Advisory Committee Notes" which apply to the 2000 amendments. Although the Committee Notes are not yet published in any of the Rules Supplements, the comments are readily available through Westlaw or other legal research databases. In addition to explaining the applicability of each Rule in detail, the Comments provide an excellent summary, with citations, of the various Circuit Court opinions which have explained and followed both Daubert and Kumho with respect to experts offering scientific, technical, or other testimony based upon specialized knowledge.

The Committee observed that Rule 701 has been amended "to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing". Thus to the extent any witness is providing testimony based upon scientific, technical or other specialized knowledge, such testimony must be scrutinized under the rules regulating expert opinion found in Rule 702 as amended.

Rule 702, as amended, codifies the trial court's responsibility of acting as a gatekeeper with respect to all expert testimony, not just testimony based upon science. The Comments advise that consistently with Kumho, the "rule as amended provides that all types of expert testimony present questions of admissibility for the trial court in deciding whether the evidence is helpful and reliable". The proponent of the evidence has the burden of establishing the admissibility requirements by a preponderance of the evidence. F.R.E. 104(a).

The Comments to Rule 702 specifically advise that no attempt has been made to "codify" the standards and factors which the trial court should consider in assessing the reliability of expert testimony. The Advisory Committee appropriately observed that Daubert itself "emphasized that the factors were neither exclusive nor dispositive".

The remainder of the Committee Comments under Rule 702 will be extremely useful to the defense practitioner. In addition to reciting the Daubert requirements regarding the reliability of scientific expert testimony, the Committee notes summarize many of the other factors which have been applied by the Circuits in assessing the reliability of expert testimony beyond the scientific realm. These cases and comments should be reviewed and considered whenever confronting a non-scientific expert witness under Rule 702 as amended. See in particular the Comments directed to the witness who is relying solely or primarily on "experience". The Committee observed that gatekeeping requires more than "taking the expert's word for it".

According to the Committee notes, Rule 703 has been amended to reflect that "when an expert reasonably relies on inadmissible information to form an opinion or inference, the underlying information is not admissible simply because the opinion or inference is admitted". The amendment more or less adopts a relevancy standard requiring the trial court to evaluate the probative value of the evidence against its prejudicial effect.

Product liability defense attorneys should note while Daubert and Rule 702 (as amended) have yet to be adopted by the Illinois Supreme Court, Rule 703 has been expressly adopted as Illinois Evidence Law. Wilson v. Clark, 84 Ill.2nd 186, 417 N.E. 2nd 1322 (1981). Prior to the Federal amendment, at least one expert on Illinois Evidence Law observed that the trial court should exclude otherwise inadmissible facts, data or opinions "when their probative value in explaining the expert's opinion pales beside their likely prejudicial impact or their tendency to create confusion. Cleary, Handbook of Illinois Evidence, page 584, 6th Edition. See also Kochan v. Owens-Corning Fiberglass Corp., 242 Ill. 3rd 781, 610 N.E.2nd 683 (1993).

While we can all hope that the Illinois Supreme Court reforms the admissibility of expert testimony by its review of Donaldson v. Central Illinois Public Service Co., 313 Ill. 3rd 1061, 730 N.E. 2nd 68 (2000), in the meantime, the amendments to Federal Rules of Evidence 701, 702 and 703 appear to assure the product liability defense lawyer that questionable expert testimony will receive appropriate scrutiny provided the case is removed to Federal Court.

Momkus McCluskey, LLC