For The Expert Who Just Can't Say No:
Exclusion Of Evidence Under Rules 104 And 107
Although South Dakota purported to follow the doctrine announced in Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993) for the admission of expert scientific evidence, until very recently none of the decided cases contained any real clues as to how Daubert’s teachings are to be applied. See State v. Moeller, 548 N.W.2d 465, 479 (S.D. 1996); State v. Schweitzer, 533 N.W.2d 156, 159 (S.D. 1995); State v. Hofer, 512 N.W.2d 482, 484 (S.D. 1994). South Dakota adopted the same Rule of Evidence [Rule 702; SDCL 19-15-2] that formed the basis of the Supreme Court’s ruling in Daubert. To the extent it has been recognized that when South Dakota uses such federal rules, federal decisions under those rules "provide analytical assistance in interpretation of our state rule," Miller v. Hernandez, 520 N.W.2d 266, 269 (S.D. 1994) (Federal and South Dakota Rules of Civil Procedure), it seems clear that federal case law decided under Daubert should be highly instructive for challenges of scientific evidence.

Now the Supreme Court on December 31, 1996 for the first time in a strictly civil context has said that Daubert applies to questions on the admissibility of a scientific expert’s opinion. Kuper v. Lincoln-Union Electric Company 1996 SD 145; 1996 WL 743511 (S.D.)(for the defense: Tom Fritz, Rapid City, SD; for the plaintiff: Mike Schaffer, Sioux Falls, SD) Once the expert’s opinion is called into question by pretrial motion, the trial court, not the jury, must make a finding, with its reasoning explained, on the reliability of the scientific foundation underlying the opinion. Kuper 1996 SDO 145 at 41. Most helpful is the court’s quotation from the original Daubert opinion:

Although general acceptance in the scientific community is no longer required, Daubert, 509 U.S. at 589, 113 S.Ct. at 2794, 125 L.Ed.2d at 480, "the trial judge still has the ‘task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.’ " Hofer, 512 N.W.2d at 484 (quoting Daubert, 509 U.S. at 597, 113 S.Ct. at 2799, 125 L.Ed.2d at 485).

The defendant (or the party challenging admissibility) now has good case authority for putting on specific proof on this which has to be acknowledged and reviewed by the trial court. Evidence on the science behind the opinions could be quite broadly interpreted, but the kind of evidence appropriate is suggested in the court’s excerpts from Daubert:

"In Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 US 579, 592-93, 113 SCt 2786, 2796, 125 LEd2d 469, 482-83 (1993), the United States Supreme Court held that before expert scientific testimony may be received, it must be shown that: (1) it has been tested; (2) it has been subjected to peer review and publication; (3) the known or potential rate of error must be known; and (4) to what extent it has received general acceptance. The Daubert Court explained:

"The adjective "scientific" implies a grounding in the methods and procedures of science. Similarly, the word "knowledge" connotes more than subjective belief or unsupported speculation. The term "applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds." Webster’s Third New International Dictionary 1252 (1986). Of course, it would be unreasonable to conclude that the subject of scientific testimony must be "known" to a certainty; arguably, there are no certainties in science."

Kuper at 96 SDO 145 at 39.

How to Raise the Daubert Issue

Many practitioners might automatically assume that the proper method of raising a Daubert challenge would be by a motion in limine, and this approach was in fact spectacularly successful for the defense team (Steven M. Johnson and A. Russell Janklow) in Penny v. Praxair, Civ. 94-4085, who persuaded Judge Jones the morning of trial to exclude the plaintiff’s PET Scan evidence. The court in Hose v. Chicago Northwestern Transp. Co., 70 F.3d 968 n.3 (8th Cir. 1995), however, criticized such a procedure, stating that Daubert challenges "should ordinarily be addressed prior to trial... An early evidentiary challenge allows the trial judge to exercise properly the `gatekeeping role’ regarding expert testimony envisioned under Daubert."

It is clear that "preliminary factual findings under Rule 104(a) are subject to the preponderance-of-the-evidence standard", Huddleston v. U.S., 485 U.S. 681, 687 n. 5 (1988). It also appears settled that it is the "proponent of the proffered expert testimony [who] hears the burden of establishing its admissibility." Muzzey v. Kerr-McGee Chemical Corp., 921 F.Supp. 511 (N.D. Ill. 1996). As a practical matter, however, it is the party seeking to exclude the scientific evidence who will have to provide a factual basis to show that the evidence is not reliable, and this will require discovery into the various factors that courts are to consider in making this determination:
  • (i) whether the expert’s hypothesis can be and has been tested;
  • (ii) whether the method has been subject to peer review;
  • (iii) the known or potential rate of error;
  • (iv) the existence of standards controlling the technique’s operation;
  • (v) whether the testimony has been generally accepted in the scientific community;
  • (vi) the relationship of the technique to methods which have been established to have been reliable;
  • (vii) the qualifications of the expert witness; and (viii) the non-judicial uses to which the method has been put. Diaz v. Johnson Matthey, Inc., 893 F.Supp. 358, 373 (D.N.J. 1995).

Although not all of these factors will necessarily be present in every case, Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995) (Daubert II), it has been suggested that the "most important factor" is whether the evidence "can be and has been tested by the scientific method", Schmaltz v. Norfolk & Western Ry. Co., 878 F.Supp. 1119, 1121 (N.D. Ill. 1995); in other words, the expert must be able to show more than he merely "believes" his opinion to be true. See e.g. Pestel v. Vermeer Mfg. Co., 64 F.3d 382 (8th Cir. 1995).

Many courts also focus on the factors of "peer review" and "general acceptance", which typically involve an inquiry into whether the theory has been published; the fact "research is accepted for publication in a reputable scientific journal after being subjected to the usual vigors of peer review is a significant indication that it is taken seriously by other scientists." Daubert II, 43 F.3d at 1318. On the other hand, many articles can be no more than "case studies", which only describe reported phenomenon without further analysis and have been generally rejected as proof of reliability. See e.g. Casey v. Ohio Medical Prods., 877 F.Supp. 1380, 1385 (N.D. Cal. 1995). The "error rate" is an important factor when the evidence involves "a particular scientific technique", Sorenson by and through Dunbar v. Shaklee Corp., 31 F.3d 638, 649 (8th Cir. 1994), since a high rate of "false negatives" can show a test to be unreliable. U.S. vs. Powers, 59 F. 3d 1460, 1471 (4th Cir. 1995). And if the opinion evidence is based on studies not directly applicable to the factual situation in the particular case, the expert must show there is a valid scientific basis for the analogy. As Cavallo v. Star Enterprise, 892 F. Supp. 756, 761 (E.D. Va. 1995), put it, if "published theories and studies purport to prove XYZ, and from them, the expert concludes ABC, it may be that the expert’s reasoning process itself is not scientifically valid." Further, it is also pertinent to show precisely how the expert’s training qualifies him to express an opinion in the particular subject; for example, although an expert "is not himself a toxicologist, he must nonetheless apply the principles and methods of toxicology if he is to give an opinion on an issue relating to that specialty." Cavallo, 892 F. Supp. at 771.

Laboratory v. Courtroom

Finally, there is the point that Judge Jones seemed to find most persuasive in Penny in excluding the plaintiffs’ PET scan: the plaintiff had only been referred for the test after litigation had begun and at the suggestion of plaintiffs’ counsel. In "determining whether proposed expert testimony amounts to good science, we may not ignore the fact that a scientist’s normal workplace is the lab or the field, not the courtroom or the lawyer’s office." Daubert II, 43 F.3d at 1317. Similarly, the timing of the expert’s research, especially if the opinion was developed primarily for litigation purposes, is also significant, since by "searching for support for his opinion after he has formed it, the expert shows that he has not used the scientific method to derive his opinion." Muzzey, 921 F.Supp. at 520.

Development of the record for a Daubert challenge thus requires fairly comprehensive discovery: while interrogatories are of course essential to begin the process, SDCL 15-6-26(b)(4), and should be utilized to inquire into a number of the Daubert factors, such as published articles "supporting" the opinion, there can be no substitute for deposition testimony, conducted as early in the case as possible.

--Stephen C. Hoffman
May, 1997
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