Biesterveld & Crook, LLC
What is a Daubert Challenge to Expert Witnesses?
Expert witnesses such as doctors, crash reconstructionist, and life care planners are crucial to winning an injury claim. Insurance companies rely on the United States Supreme Court case, Daubert v. Merrell Dow Pharmaceuticals, Inc., to challenge injury claimant’s expert testimony. Thus, Daubert motions can make or break a case.
A Daubert motion seeks to exclude presentation of an opposing party’s expert testimony. In 2014, Kansas joined the majority of states and adopted the Daubert standard. K.S.A. 60-456(b) was amended to mirror the language of Federal Rule of Evidence 702, which reflects the holding of the Daubert case.
Prior to adopting the Daubert standard, Kansas followed the Frye standard, which was derived from the United States Supreme Court case of Frye v. United States. Under the Frye standard, scientific evidence from an expert was only admissible if it was generally accepted by the scientific community in the relevant field of study. However, the Supreme Court viewed this standard as too rigid and contrary to the Federal Rules general approach of relaxing the traditional barriers to opinion testimony.
The court must now act as a gatekeeper to admit only reliable and relevant expert testimony. Under the Daubert standard, an expert’s testimony must be derived from the scientific method and also requires that any scientific evidence must assist the jury in understanding the evidence presented to them. Subsequently, the United States Supreme Court clarified in Kumho Tire Co. v. Carmichael that the Daubert analysis did not just apply to scientific knowledge but applies to all types of expert testimony.
The Daubert Standard
Qualifying the Expert Witness
As laid out in the Daubert opinion, the judge must act as a “gatekeeper” in determining whether the expert’s testimony rests “on a reliable foundation” and “is relevant to the task at hand.” K.S.A. 60-456(b) first requires the judge to determine if an expert is qualified by looking at the expert’s knowledge, skill, experience, training, or education. An expert can be qualified by meeting just one of the listed criteria, but a good expert will likely have a combination of them. The opinion of the expert witness must be within the scope of that expert’s special knowledge, skill, experience, or training.
If a party is trying to use experience to establish that an expert is qualified, that party must show: (1) how the expert’s experience led to the conclusions reached, (2) why the expert’s experience is a sufficient basis for their opinions, and (3) how the expert’s experience is reliably applied to the facts of the case. The judge has broad discretion in both qualifying a witness as an expert and admitting that expert testimony. The expert witness does not have to be the “best” qualified to be qualified as a witness either.
Helpfulness of Expert Witness’ Opinion to Jury
The expert’s testimony must be helpful to a jury. Courts in Kansas have stressed that the basis for admission of expert testimony is necessity. Where normal experiences and qualifications of laypersons serving as jurors permit them to draw proper conclusions from given facts and circumstances, expert testimony is inadmissible. Intuitively this makes sense because if a concept is common enough in the lives or normal people, no time or money should be wasted on an expert that will not provide any beneficial clarification. Worse, the expert could potentially confuse jurors on an issue or fact that was already properly understood. Moreover, if the testimony is too general, court will generally find that it lacks reliability and helpfulness to a jury.
For example, in Lollis v. Superior Sales Co., the court held that it was proper to exclude expert testimony of causation or contribution circumstances in an auto-collision as such an issue is within the normal experience and qualifications of lay jurors. The court held it is rare to have a juror who does not have a vehicle and understand the consequences of certain actions at the wheel. In contrast, in Norton Farms, Inc. v. Anadarko Petroleum Corp., the Kansas Court of Appeals found that expert testimony is helpful to jurors to determine causation for the collapse of sophisticated mechanical farm equipment. Knowing what can cause farm equipment to collapse is not within the common knowledge of lay jurors; it is not like owning a car for instance.
Reliability and Helpfulness of Expert Witness’ Opinion
After determining that the expert is qualified the court will then determine if the expert’s opinion is reliable and thus helpful to a jury. The court determines reliability by looking to whether the testimony is based on sufficient facts or data and is the product of reliable principles and methods. To aid judges in this endeavor the following non-exhaustive list of factors, originally laid out by the Supreme Court in Daubert, is utilized: (1) if the theory has been tested, (2) whether the theory has been subject to peer review or publication, or (3) if there is a known or potential rate of error for the theory, and (4) whether the theory has gained widespread acceptance. None of these factors are dispositive, and Kansas courts have used a variety of other factors to make this decision, depending on the specific facts of the case.
Sometimes however, the testimony is not based on any type of scientific theory, but is solely based on the expert’s personal knowledge or experience. If this is the case, the expert must explain how their experience, knowledge, any professional studies they relied upon which led to their conclusions, why their experience provides a sufficient basis for the opinions, and how the experience is reliably applied to the facts.
For example, in Smart v. BNSF Ry. Co. a railroad technician named Smart (plaintiff) sued the BNSF Railroad company (defendant) under the Federal Employers’ Liability Act alleging he suffered cumulative trauma injuries to his body as a result of his job-related duties as a railroad electrician. The duties included climbing, lifting, carrying, repetitive use of power tools, and working in confined and awkward spaces. The District Court granted summary judgement for BNSF. On appeal, the Kansas Court of Appeals had the task of analyzing whether the District Court properly excluded the testimony of an expert for the plaintiff, an electrician named Dr. Kress.
In his analysis Dr. Kress opined that Smart’s work exposed him to ergonomic risk factors consistent with neck injury and the BNSF had failed to implement a system in which Smart could perform his job properly to prevent these injuries and had failed to provide the requisite awareness training on the risks of developing injuries. However, the court noted that in his testimony Dr. Kress was unable to provide any specific example of when he had even observed an electrician, but Dr. Kress believed it was within the last 20 to 25 years; he had not ever visited the shop in Topeka where Smart worked; did not state that he had seen Smart perform any of his work; and Dr. Kress did not perform any detailed on-site analysis of the facility in operation. Furthermore, Dr. Kress could not even demonstrate his understanding of the type of work and tasks that were routinely performed by Smart, nor the tools that he used. The court finally held that “[b]ecause nothing in the record provides the necessary connection between Dr. Kress’ experience and his conclusions, we concluded that Dr. Kress’ ‘opinion evidence [was] connected to existing data only by the ipse dixit of the expert.’” In other words, the court is saying that this is just opinion evidence that is connected to existing data that Dr. Kress expresses as true based on his authority and experience, and nothing else.
Testimony Must be Based in Sufficient Facts and Data
For the testimony to be admitted, it must also be based in sufficient facts and data, and be based on the facts of the case. Kansas courts will look to determine whether the expert opinion is based on facts that enable the expert to express a reasonably accurate conclusion as opposed to conjecture or speculation. The expert opinion must be based on reasonably accurate data and not simply based on unsupported assumption, theoretical speculation, or conclusory allegations. Essentially, the court cannot just take the expert’s word for it and the expert needs to provide the literature, research, and/or studies they are relying upon. For instance, in the United States Supreme Court Case Kumho Tire Co., Ltd. v. Carmichael the Court affirmed the district court’s refusal to allow an expert witness to testify, noting that the parties did not refer to “any articles or papers that validate [the expert’s] approach.” Additionally, in the United States Supreme Court Case of General Electric Co. v. Joiner the Court holds that a district court does not have to admit opinion evidence that is connected to existing data “only by the ipse dixit of the expert.” There, the Court is basically saying that a judge does not have to admit any dogmatic and unproven statements by an expert. The expert cannot simply declare something to be intrinsically true without any further proof. The Supreme Court of Kansas is illustrative in State v. Lyman where it did not allow an expert to testify where the expert “simply [said]—without explanation of his thought process—that he formed his opinion ‘to reasonable medical certainty’ does not mean he actually did so.”
In most Daubert Motions however, the focus of the court will be on the methodology of the expert. The court determines whether the expert’s opinion is reliable by assessing the underlying reasoning and methodology. Under this step, the court determines “whether that reasoning or methodology properly can be applied to the facts in issue.” To do this the court looks to the following non-exhaustive list of factors: (1) if the theory has been tested, (2) whether the theory has been subject to peer review or publication, or (3) if there is a known or potential rate or error for the theory, and (4) whether the theory has gained widespread acceptance.
The first factor looks to see if the expert’s theory can be challenged in some type of objective way, rather than a subjective conclusory way. Under the second factor, the main idea is to establish that this theory/methodology is predictable, reproducible, and basically standardized. The third factor speaks for itself in that if there is a known high rate of error the evidence should likely not reach the jury, depending on the facts of the case. Finally, the court will look to see whether there has been widespread acceptance of the theory or methodology. This is not to say that the court is reverting back to the Frye standard that required general acceptance by the scientific community. While this is a very important aspect of the expert’s testimony, it must be remembered that none of the factors are dispositive and an expert testifying about new scientific methods that have not been generally accepted yet can still be admitted.
Daubert motions can be a very important tool in a litigator’s belt. If the opposing party cannot use expert testimony that they were relying on, it can break the case completely. The Daubert motion requires an expert’s testimony to be derived from the scientific method. Additionally, it requires that any scientific evidence must assist the jury in understanding the evidence presented to them. The judge must qualify the expert and then act as the gatekeeper in conducting a Daubert analysis to determine if the expert’s testimony may be admitted.