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It used to be that almost anyone could be presented in court as
an "expert" to support one side or the other in a
dispute. When this was over fault or liability for damage the jury
-- usually ordinary citizens -- would often decide the case using
such expert evidence. Sometimes huge amounts of money are asked
for as compensation and punishment.
In the last six years judges and courts have been moving to
clarify who is "expert" where the issue being debated
rests on a theory or supposition of cause-and-effect. Experts in
the position of answering questions about the science and testing
of such a theory -- well-respected researchers and professors for
instance -- now must consider that an unsupported opinion may be
ruled as inadmissible by the judge.
The change in the picture began when the U.S. Supreme Court
ruled in 1993 in the case of Daubert v. Merrell Dow
Pharmaceuticals Inc. that several issues should be considered in
determining whether "scientific" testimony would assist
a court. The issues included the case where the opinion stated by
the expert involved a theory or technique that can be tested has
been subjected to peer review and has attained general acceptance
within the scientific community.
This Supreme Court finding has led to proposals of "science
courts" or panels of specially-qualified judges hearing such
cases. The other judges would be relieved of the difficult task of
supervising cases that hinged on what is "fact:" and
what is "unsupported opinion". Science courts have not
yet attained prominence, but since 1993 other courts have referred
to Daubert in their decisions.
In an August 8, 1997 opinion by the 9th U.S. Circuit Court of
Appeals, Judge Betty B. Fletcher noted that the Daubert court
cited Federal Rule of Evidence 702, which allows for scientific
testimony by witnesses who are qualified as experts "by
knowledge, skill, experience, training or education" and said
that Daubert viewed in a broad context gives "strong advice
to district courts: in ruling admissibility, trial judges are the
gatekeepers and should pay particular attention to the reliability
of the expert and his or her testimony."
More and more cases being overturned on appeal are using the
Daubert ruling. One attorney, Hughes & Luce partner Bert
Black, who filed an amicus brief on behalf of the National Academy
of Sciences in a case concerning Ashland Chemical, may have put
the importance of Daubert best when he said: "Some people
don't like Daubert, because it keeps plaintiffs from getting away
with stuff in court."
Technical experts should be aware of this background when
preparing to appear in court to render opinions as to causality.
If the expert's legal associate in the case does not bring it into
the pre-trial discussions, the expert who is keeping up on this
new aspect of admissibility may want to ask about it. |