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"The best measure of a man's honesty isn't his income tax return. It's the zero adjust on his bathroom scale." — Arthur C. Clarke, author
The proliferation of expert proof, often novel in nature, has collided with the U.S. Supreme Court's 1993 decision in Daubert v. Merrell Dow, directing district courts to exercise discretion as gatekeepers to ensure that scientific evidence is both relevant and reliable.
The courts should explore all available methods, including non-traditional means, to allow the presentation of novel expert proof. Such non-traditional approaches include utilization of the Federal Judicial Center's (F.J.C.) Reference Manual on Scientific Evidence (Manual), appointment of a special master, use of technical advisors, and implementation of special procedures including non-adversary presentation of expert testimony. These procedures should enhance the court's capacity to admit and assimilate novel expert evidence in civil rights cases.
A. UTILIZATION OF THE F.J.C. MANUAL
The 1994 publication of the manual by the F.J.C. is a noteworthy post-Daubert development. F.J.C. Director Judge William H. Schwarzer stated that the manual was intended "to help judges understand basic concepts -- the analytical framework -- of certain sciences and the Rules of Evidence and to identify issues relevant to the admissibility of evidence." The book contains seven chapters describing various scientific methodologies, a list of peer reviewers for experts in various fields, and additional chapters on the management of expert evidence, court-appointed experts, and special masters. In addition, the manual includes a chapter by Professor Margaret Berger entitled "Evidentiary Framework," which addresses relevant aspects of the law of evidence.
The manual should serve as a cost-effective source of assistance in defining certain scientific issues and understanding their substance and proof. In some cases, the manual may provide sufficient common ground between parties to allow stipulations on at least preliminary matters of expert evidence. Depending on the subject matter at issue, the manual may also support requests for judicial notice of settled scientific principles. The utility of this manual has yet to be determined. While the F.J.C. published the manual for the judiciary, it remains to be seen whether heavily burdened district court judges, who for the most part are generalists, will undertake significant additional responsibility for the assessment of scientific evidence based on the availability of the manual. Instead, as our adversarial system assumes, the parties will likely provide the primary impetus for the manual's use, while judges will continue to seek assistance from other sources.
B. APPOINTMENT OF A SPECIAL MASTER
The appointment of a special master may be helpful in those cases which present extremely difficult gatekeeping issues. Federal Rule of Civil Procedure 53 empowers a special master to conduct proceedings and make a written report to the court. Rule 53 expressly authorizes a special master to rule on the admissibility of evidence.
Appointments, however, are disfavored under the Rule. In jury cases, the court may appoint a master "only when the issues are complicated;" in cases to be tried to the bench, the court may make an appointment only where "some exceptional condition requires it." Such circumstances might be present where gatekeeping issues are so theoretical, technical, or complex that the court finds itself unable to address them in the first instance. Courts handling complex cases have occasionally appointed masters to assist with other issues.
District courts considering the appointment of a special master for gatekeeping may wish to examine the cases under the National Childhood Vaccine Injury Act, where special masters have proven useful in assessing the validity of scientific evidence using the Daubert standard. The experience in these cases suggests that a special master familiar with the relevant field might significantly assist the court.
Appointments of masters, however, are sometimes controversial. Parties may object to appointments based on the potential for delay and expense. They may also claim that the appointment is a denial of their right to a jury trial under the Seventh Amendment or to a decision by a judge appointed under Article III of the Constitution. The use of a special master for the limited purpose suggested here should minimize these concerns. Given the likelihood that gatekeeping will consume significant amounts of court time, the use of a special master to hear a motion in limine may expedite both the hearing and the ultimate resolution on the merits. Confining the special master's undertaking to these tasks should minimize expense and, as with Federal Rules Of Evidence 706, the court could mitigate problems associated with fees by allocating them initially to one party.
Finally, because gatekeeping involves the exercise of the court's discretion, the use of a special master would not affect the right to a jury trial and would minimally impact the right to a decision by an Article III judge, inasmuch as the district court would (except for any subsidiary findings of fact subject to review under a clearly erroneous standard) determine the admissibility of the expert evidence de novo.
C. UTILIZATION OF A TECHNICAL ADVISOR
A technical advisor may also provide significant assistance with gatekeeping. In addition to the authority to appoint an expert under Rule 706 or a special master under Rule 53, a district court has inherent power to obtain such technical assistance as is necessary to the performance of its duties. A court may exercise this power in cases where specialized knowledge is needed to resolve "problems of unusual difficulty, sophistication, and complexity, involving something well beyond the regular questions of fact and law with which judges must routinely grapple." Thus, the Sixth Circuit approved the appointment of a nationally recognized expert on school administration to advise a special master on educational issues in school desegregation.
The use of a technical advisor offers advantages of informality and flexibility in procedures. The selection and use of an advisor is not governed by Rule 706. Advisors do not make findings within the meaning of Rule 706, are not subject to deposition, and do not testify at trial. For these reasons, the court may find it easier to recruit persons to serve in this capacity than as experts. Unlike a special master, who conducts proceedings and reports to the court under Rule 53, an advisor is simply a "sounding board" for the court.
On the other hand, the court has no authority to order the parties to pay advisor fees and to tax these amounts as costs. Courts which have used technical advisors have thus either secured the parties' agreement to pay fees or sought assistance from the Administrative Office of the United States Courts, which has authorized reimbursement in cases where appointment of an expert under Rule 706 or a master under Rule 53 was not appropriate.
In light of the informality of this procedure and its limited accountability in the adversary process, courts have narrowly defined the tasks of technical advisors. One such use is the interpretation of specific testimony or data for the court. Another is the provision of background knowledge to the court. A district court in a patent infringement case described the advisor's role in a manner suggestive of its utility for gatekeeping after Daubert:
A busy trial court faced with complex technology may require independent education or analysis if it is to understand the technology before the trial. The parties nominated Dr. Vacroux and agreed that he is an independent expert. If a motion for summary judgment appears to have merit a court will need some education about the technology at an earlier stage of the proceedings but it will not need independent findings. That is this case. What was sought here was an independent explanation of the technology and assistance in understanding the positions of the parties' experts.
A district court may welcome such assistance. A technical advisor may help the court understand expert evidence to determine its relevance. An advisor may provide similar assistance with respect to the determination of reliability, including the assessment of testing, peer review and publication, error rate and professional standards, general acceptance in a particular field, and other factors as applicable. The advisor can participate at any of the stages in which such Daubert issues arise. The court can tailor the advisor's role to the needs of the specific case while avoiding the procedural encumbrances involved in the use of court-appointed experts or special masters.
Moreover, the role of advisor need not be restricted to assisting with gatekeeping. An advisor may assist with case management to facilitate the utilization of novel expert testimony in a case. The assistance may include explaining a novel expert issue raised at a scheduling or a pretrial conference and aiding the court in assessing proposed discovery or plans to develop evidence during the litigation. In addition, the advisor may help develop any special procedures that the court may require. The advisor may assist the court in understanding expert proof in relation to other evidence for purposes of the Rule determination as to whether an opponent of expert testimony can challenge it by traditional means. Consultation on the phrasing of jury instructions regarding expert proof is another way an advisor might aid the court. Finally, an advisor might simply assist the court in understanding the F.J.C. Manual or advise the court regarding the appointment of an expert or master.
D. SPECIAL PROCEDURES
In addition, district courts should consider the implementation in civil rights cases of special procedures authorized by FedRCivP 16(c)(12) to address "complex issues" and "unusual proof problems." Particularly in cases where expert proof is so complex that it may exceed the comprehension of the trier of fact and be subject to exclusion under Rule 403, the court should consider some modification of the adversary process to facilitate the presentation of evidence in an understandable manner.
One suggestion is to teach the fact finder basic principles of the relevant field before the experts testify. The analogy of expert testimony to education has often been noted. Common sense and experience indicate that adversary presentation of expert evidence does not always serve this purpose well. A judicially supervised presentation of basic expert principles may provide significant assistance in extremely complex cases. While stipulations are the traditional means of presenting agreed testimony or background matter, their effect is sometimes mind-numbing, even when they do not involve technical matter. The educational purpose is better served by having a teacher provide a narrative. Such a presentation could be made by the court's expert or, with the agreement of the parties, the court's technical advisor.
The court should introduce the procedure with an explanation of its purpose and content. The court should then provide a preliminary statement of the expert issues in order to supply necessary context. The presentation would follow with a basic introduction to the scientific, technical, or other expert principles at issue. The presentation should stress clarity of expression, include graphics, and minimize reliance on technical jargon, which is perhaps the primary impediment to juror comprehension. The court should settle the scope of the presentation and any objections in advance so that the presentation may occur without cross-examination or other interruption by the parties. Properly handled, this procedure could maximize the trier of fact's capacity to deal with expert testimony in civil rights cases. It should also minimize the exclusion of evidence under Rule and thereby serve the important societal interest in resolving these claims on the merits.
* The above material was excerpted, modified and otherwise prepared by the 'Lectric Law Library from "Novel Expert Evidence In Federal Civil Rights Litigation" a work by Gordon J. Beggs, Fair Employment Practices Clinic, Cleveland-Marshall College of Law. Gordon Beggs. The original was found at www.wcl.american.edu
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