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The Supreme Court's landmark Daubert decision, 509 U.S.579 ('93), on the admissibility of expert evidence requires that after determining the category of evidence - scientific, technical, or specialized - the court must next assess the relevance and reliability of the evidence under Federal Rule of Evidence 702.

If the evidence satisfies these standards, but is based on otherwise inadmissible hearsay, under.R.703, the court may also need to determine whether the underlying facts or data are "reasonably relied upon by experts in the particular field in forming opinions or inferences on the subject."

In addition, the court may have to weigh the probative value of the evidence against its possible prejudice under R.403.

Finally, in making all of these determinations, the court may also have to consider whether any additional procedures, such as the appointment of an expert under R.706 or a special master under Fed.R.Civ.P. 53 are warranted.

A. DETERMINING RELEVANCE

Under R.702, the court assesses whether evidence will assist the trier of fact. Daubert cautions that this determination is not always obvious. Scientific evidence may be validly used for certain purposes, but not for others. District courts must identify specific issues whose resolution will be informed by the evidence. The relevance determination, however, is a familiar type of assessment and has not occasioned significant difficulty in civil rights cases reported since the Daubert decision. For example, in an appeal of a criminal conviction for holding a Sri Lankan household employee in involuntary servitude, U.S. v. Alzanki, 54 F.3d 994 (1st Cir.'95). the 1st Circuit held that the district court properly admitted the testimony of a victimologist on the issue of coercion. The appellate court stated that although "the generalized nature of the proffered testimony regarding reactions to abuse may temper its probative value to the factfinder, we do not think that it can be said that its relevance is negated entirely."

Similarly, a district court considering the challenge to execution by lethal gas in Fierro v. Gomez, 865 F.Supp.1387 (N.D.Cal.'94), admitted testimony from specialists in diverse fields such as neurology, toxicology, anesthesiology, pathology, and pharmacology because the inquiry into consciousness and pain "required that the court hear testimony of qualified experts and weigh the strength of the examination and crossexamination in order to reach a determination." Another district court hearing a handicap discrimination case admitted the testimony of an ophthalmologist regarding the relationship between stress and high intraocular pressure as relevant to the issue of damages. Flores v. Puerto Rico Tel., No.CIV.89-1697(HL), (D.P.R.1/94). Likewise, in an age discrimination case, Flavel v. Svedala, 875 F. Supp. 550 (E.D.Wis.'94), the court allowed the testimony of a social psychologist on stereotypes in company documents because such testimony would help make the jury aware that bias may arise from unconscious motives.

By contrast, in Doe v. TAG., No.92C7661, (N.D.Ill./18/93), an action claiming children in a foster home suffered abuse, a court held inadmissible the testimony of an economist concerning future loss of enjoyment of life. Because the testimony was based on survey data, the court reasoned that the evidence comprised the consensus of persons no more expert than the jurors and therefore would not assist the jury in reaching a decision.

Similarly, in Ayers v. Robinson, 887 F.Supp.1049 (N.D.Ill.'95), a wrongful death case arising out of a fatal shooting by police, the court, while expressing considerable skepticism regarding the theory of hedonic damages, excluded the testimony of an expert in part because his calculations were based on "the value of a statistical life--a nameless, faceless member of society." In the court's view, the expert failed to tailor his calculations to fit the case at hand and his testimony could therefore not assist the jury in awarding damages.

B. DETERMINING RELIABILITY

Daubert noted several factors that a district court should consider to ensure that scientific evidence is reliable: (1) testing, (2) peer review and publication, (3) error rate and professional standards, and (4) general acceptance.

1. TESTING

Daubert indicated that a key factor in evaluating the reliability of a scientific theory or technique was "whether it can be (and has been) tested." The Court's language suggests issues with respect to the assessment of science based on observation of nature rather than experiment and the propriety of testing within the context of the litigation itself. These latter issues have only been addressed peripherally in cases subsequent to Daubert.

These issues are, however, exemplified in Gier v. Educational Serv., 845 F.Supp.1342 (D.Neb.'94), a case claiming abuse of students in a residential facility for mentally retarded children. The magistrate judge considered a motion in limine to exclude testimony of a psychiatrist and two psychologists who examined the seven plaintiffs. As a result of the examinations, which consisted of a history, a psychological evaluation utilizing standardized tests, and a clinical interview, the witnesses determined that the plaintiffs had been sexually, physically, and emotionally abused. The focus of the expert evaluation was "to compare the behavior or 'symptoms' of the child to that of victims of child abuse."

The court, citing Daubert, inquired whether the methodology used was "capable of being falsified, that is, whether it actually employed the 'scientific method.'" Answering in the negative, the magistrate found that this type of psychological evidence was both controversial and, for the most part, "irrefutable," inasmuch as it could only be tested by research on patients. As a result, the expert conclusions were not subject to the type of proof available in the physical sciences. In the absence of objective research to test the expert theories or assess their conclusions, the court found that the expert techniques did not satisfy the Daubert standard. Both the merits of this decision and its implications will no doubt be vigorously debated, but the court's approach is instructive for its effort to address the scientific problems of testing the expert testimony.

2. PEER REVIEW AND PUBLICATION

Under Daubert, peer review and publication are "pertinent considerations" for determining the reliability of scientific evidence. Where the evidence comes from the mainstream of its respective field, this consideration will weigh heavily in favor of admission. For example, the expert testimony in the execution by lethal gas case was primarily based on principles which commonly appeared in authoritative medical treatises. Accordingly, the court could presume it had been subjected to peer review and publication and accepted by the scientific community as having significant probative value. Where experts present new or marginal theories, this factor should not lend significant support to the admission of evidence. Thus, the magistrate hearing the mentally retarded children's abuse case gave little weight to controversial literature on the symptomatology of abuse. If the circumstances are such that viable theories are likelyto be published and subject to peer review, the absence of these factors may weigh against admission.

3. ERROR RATE AND PROFESSIONAL STANDARDS

Daubert also indicates that the court should consider "the known or potential rate of error . . . and the existence and maintenance of standards controlling the technique's operation." The courts have overemphasized this factor in a number of cases by treating an indeterminate error rate as conclusive in circumstances where it should have little bearing. Usher v. Lakewood, 158 F.R.D.411 (N.D.Ill.'94) is a decision in which a district court issued a protective order against the administration of a battery of psychological tests as part of a mental status exam of a plaintiff who claimed to be suffering from depression as a result of experiencing sex discrimination in employment illustrates this point. The plaintiff "adduced substantial information demonstrating the inadequacy of the correlation factors and the validity factors of all five of the tests in question." Under these circumstances, the court viewed the error rate of the proposed tests as indicating a lack of good cause for this aspect of the exam. Similarly, in the mentally retarded children's abuse case, the unknown error rate of the experts' methodology for determining abuse contributed to the magistrate's decision to exclude the evidence.

On the other hand, an unknown error rate may not prove fatal to techniques previously admitted under Frye. The district court in Janopoulos v. Harvey, 866 F.Supp.1085 (N.D.Ill.'94), a case involving questioned records offered to support a damage claim for sex harassment and retaliatory discharge stated that error rates are only one factor to consider in determining the admissibility of expert testimony and denied plaintiff's motion to exclude evidence from two chemical tests that were generally accepted for examining documents.

Courts in civil rights cases have also considered noncompliance with standards in assessing the reliability of various techniques. In a number of cases, the courts have excluded expert evidence based on flawed statistics. In the abuse case, the magistrate expressed concern that protocol for interviewing mentally retarded children had not been followed and that there was no validated protocol for using anatomically correct dolls, art, or graphic materials as part of the protocol. Of course, the degree of compliance with the standards may significantly affect the court's determination of admissibility.

4. GENERAL ACCEPTANCE

Daubert's retention of Frye's general acceptance standard as a factor in gatekeeping greatly moderates the effect of the decision. In the civil rights area, as elsewhere, Daubert affords discretion to accept established theories and techniques, regardless of how they would fare if scrutinized in the first instance under the other gatekeeping factors. The decision thus anchors the gate to the future of expert evidence firmly in its past.

Few, if any courts in a civil case has excluded evidence previously found to have achieved general acceptance, and the courts have uniformly excluded proof which previously lacked general acceptance. Time will no doubt alter this trend, particularly as courts have occasion to grapple with truly novel theories which have not yet had extensive exposure in their respective disciplines. A party offering a novel theory, however, should be prepared to present convincing proof that the theory has a basis in good science as required by Daubert.

C. FED.R.EVID. 703

Daubert instructs the district courts to "be mindful of other applicable rules." Among these is R.703 providing that "expert opinions based on otherwise inadmissible hearsay are to be admitted only if the facts or data are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences uponthe subject." This requirement proved fatal in Marozsan v. U.S., 849 F.Supp.617 (N.D.Ind.'94), a civil case in which a pro se plaintiff attempted to introduce statistical evidence in support of a constitutional challenge to the Veterans Admin's (VA) claim procedures. On summary judgment, plaintiff offered the affidavit of another individual stating that numerical statistics provided by the VA had been analyzed using a certain computer program. The court found that there was no showing that the affiant was qualified as an expert or that the data was of a type reasonably relied on in the field and excluded the affidavit.

By contrast, in a sexual harassment case, Janopoulos, supra, plaintiff filed a motion in limine to bar the use of chemical tests to show that certain documents were not authentic and the district court summarily rejected a R.703 objection where substantial evidence showed that the underlying chemical tests were "reasonably relied upon by document experts."

D. FED.R.EVID. 706

Daubert also directs the district court to keep in mind R.706, which permits the court to appoint its own expert to assist with the evaluation of expert evidence. Under this rule, the court-appointed expert must advise the parties of any findings and is subject to discovery by way of deposition. The court's expert may also be called to testify and be cross-examined at trial. Under Frye, some federal courts had found this option helpful in assessing the admissibility of expert evidence. Given the broader issues to be addressed under Daubert, such experts might substantially assist the court. The most significant obstacle to the use of this procedure in civil rights cases, which frequently involve parties with unequal resources, is the expense. The rule provides that the expert is entitled to reasonable compensation paid by the parties in such proportion as the court directs and taxed as costs of the litigation at the conclusion of the case. Should the court wish to make an appointment, this problem may be mitigated by an apportionment of the initial payment to the party that is able to afford it, subject to taxation as costs at the conclusion of the case.

E. FED.R.EVID. 403

Daubert also directs the district court to take into account R.403 which affords discretion to exclude expert testimony where its "probative value is substantially outweighed by the 'danger of unfair prejudice, confusion of the issues, or misleading the jury.'" In part, this test involves a determination of whether the trier of fact is "properly equipped to judge the probative worth of the evidence." A sensitive application of the rule requires the court to consider carefully whether the "traditional and appropriate means of attacking shaky but admissible evidence" afford sufficient safeguards against these risks.

When considering lay testimony, the courts have wide discretion to balance probative value against possible prejudice under R.403. Because of the perception that expert testimony is morelikely to mislead, Daubert arms the district courts with broader discretion to exclude expert than lay testimony. Since Daubert, several courts have relied on this authority to hold inadmissible expert testimony which they viewed as having doubtful reliability. On the other hand, where the courts have adjudged the expert testimony relatively probative and reliable, they have generally overruled challenges based on R.403.

Because many cases involve basic rights and issues of social justice, the courts should favor admitting novel expert evidence under the R.403 test. This consideration, taken with the fact that the evidence must have at least some probative value in order to qualify for balancing under the rule, should cause courts to explore all avenues to allow the presentation of novel expert proof, including means such as vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof, as well as non-traditional means.

F. ATTACKING SHAKY BUT ADMISSIBLE EVIDENCE: CROSS-EXAMINATION,
    CONTRARY EVIDENCE, AND JURY INSTRUCTIONS

Daubert identifies "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof as the traditional and appropriate means of attacking shaky but admissible evidence." District courts have applied this principle in a variety of cases. In Tocci v. Town of Lisbon, a 1994 N.H. due process case contesting the dismissal of a police officer, the court refused to exclude the testimony of a former police chief. The district judge expressed the view that a qualified expert should be permitted to testify with the burden on the opposing party to explore the basis for the testimony during cross-examination. The fact that the "'expert's testimony may be tentative or even speculative does not mean that the testimony must be excluded so long as opposing counsel has an opportunity to attack the expert's credibility.'"

The court in Flores, supra, refused to exclude the testimony of an ophthalmologist in a handicap discrimination case. The judge noted, "Even if defendant finds that the expert's testimony is not very convincing, it is not sufficient ground to eliminate it under the scope of R.702." Instead, citing Daubert, the court found the traditional means of attacking testimony, including cross-examination, presentation of opposing evidence, and appropriate instruction by the court, to be sufficient.

In Flavel v. Svedala, 875 F.Supp.550 (E.D.Wis.'94), the court allowed statistical evidence of age discrimination notwithstanding objections to the calculations, because the defendant, if dissatisfied, could critique the expert's method during cross-examination.

In many circumstances, cross-examination will suffice to safeguard the truth-seeking process. The Supreme Court recently expressed this view in Barefoot v. Estelle, 463 U.S.880 ('83). Declining to establish due process minimum for the reliability of psychiatric testimony regarding future danger posed to society by a defendant in a capital case, the Court stated: "[T]he rules of evidence generally extant at the federal and state levels anticipate that relevant, unprivileged evidence should be admitted and its weight left to the fact finder, who would have the benefit of cross-examination and contrary evidence by the opposing party."

Under the Fed.R.Evid., a cross-examiner may require experts to disclose in detail the underlying facts and data for their opinion. Under these circumstances, a party offering the testimony of a purveyor of junk science risks a devastating cross-examination. Such an examination requires effective preparation. Certainly the 1993 amendments to the Fed.R.Civ.P. mandating disclosure of detailed expert reports should facilitate preparation for cross-examination. Moreover, in federal court, a further protection exists in the time-honored practice of allowing the judge to question witnesses called by the parties inorder to assist the fact finder's assessment of confusing or misleading evidence.

Occasionally, however, cases may arise in which a court believes that cross-examination will be ineffective in revealing the true credibility of the evidence. This may occur where there are neither generally accepted principles nor any other reasonably ascertainable basis for the expert's findings. In Gier, supra at 1348, the mentally retarded children's abuse case, the magistrate, while not expressly referring to Rule 403, considered these factors and concluded the risk was too great:

[E]ven though the defendants may be able to discredit several of the indicators, symptoms or test results, the expert's overall opinion is likely to emerge unscathed. An expert using this methodology may candidly acknowledge any inconsistencies or potential shortcomings in the individual pieces of evidence she presents, but can easily dismiss the critique by saying that her evaluation relies on no one symptom or indicator and that her conclusions still hold true in light of all the other available factors and her expertise in the field. In such a case, the expert's conclusions are as impenetrable as they are unverifiable.

In addition to the potential for effective cross-examination, Daubert requires the court to consider the effect of other evidence. This may include both the expert evidence presented by the opposing party and any testimony offered by a court-appointed expert. The court may also consider the availability of lay witnesses. In Gier, the magistrate cited the inability of children to testify to support the exclusion of expert testimony.

On the other hand, a context of lay evidence on an issue, be it opposing or corroborating, supports the admission of more questionable expert testimony. Juries (and to some extent judges) may discount expert evidence where other evidence exists because they find the lay evidence more familiar and tend to view experts as cosmetic witnesses or hired guns. The availability of other sources of evidence substantially mitigates the potential for expert evidence to mislead and should favor its admission.

A further protection noted in Daubert is proper instruction of the jury. Normally, a judge instructs that the testimony of an expert is evaluated like that of any other witness, and the jury is free to reject the testimony entirely if it is not credible. While today's juries may sometimes have difficulty understanding their instructions, they maintain a healthy skepticism of expert testimony and comply with the intent of the standard instruction. Appropriate instruction is an effective means to ensure the integrity of fact finding and, with cross-examination and presentation of related evidence, will support the admission of expert testimony despite strenuous objections in many cases.

* 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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