Academic journal article
By Gafford, W. Wade
Journal of Legal Economics , Vol. 7, No. 2
W. Wade Gafford*
The 1993 Supreme Court decision in Daubert (1993) gives trial judges a gatekeeping responsibility over expert opinions.l Although factors such as the relevancy and scientific validity of the evidence will principally determine the admissibility of expert opinions, the court's gate keeping responsibility also includes determining if the witness qualifies as an expert. To assist judges in dealing with complex scientific and technical evidence, the Federal Judicial Center developed the Reference Manual on Scientific Evidence (Federal Judicial Center 1994) and in January 1995 distributed it to all federal judges. As one would expect, the reference manual provides some commentary on qualifications of experts. Even though the reference manual is not authoritatively binding on judges, it may significantly influence them because (1) the Federal Judicial Center is an agency of the U.S. Government charged with development and adoption of improved judicial administration in the federal courts, (2) the center's activities are supervised by its board, which has the Chief Justice of the U.S. Supreme Court as its chairman, and (3) the reference manual resulted from a 1990 recommendation of the Federal Courts Study Committee appointed by the Chief Justice.
The focus of this article is limited to the court's perspective regarding qualifications of experts that value economic damages in personal injuries and wrongful deaths, since the court makes the ultimate decision on who qualifies as an expert.2 This focus is accomplished by reviewing the applicable federal rules of evidence, the commentary included in the reference manual, the basic required knowledge areas, and the related academic disciplines. Factors that make experts more or less effective in their communication as experts are not addressed in this article; although such information is important to a hiring attorney, it is covered in many other sources and does not have a bearing on whether an individual is to be qualified by the court as an expert.3 In summary, the conclusion drawn in this article is that credentials from a variety of academic disciplines are appropriate; however, experts from all of the appropriate academic disciplines will need to supplement their knowledge with individual research to be truly well informed.
Significance of Term Economic Damages
Understanding the significance and meaning of the term economic damages is useful in determining appropriate qualifications of experts who value economic damages in personal injuries and wrongful deaths. Case and statutory law in general provide for relief to be given to an injured party in the form of four general types of remedies: (1) damages, (2) restitutionary remedies, (3) coercive remedies, and (4) declaratory remedies (Dobbs 1993). Personal injuries and wrongful deaths are principally concerned with damages remedies, which are money awards principally aimed at compensating the injured party for losses or punishing the wrongdoer for outrageous conduct. Restitutionary remedies are designed to prevent unjust enrichment of the wrongdoer by having him give up what was wrongfully obtained. Restitutionary remedies are measured by the wrongdoer's gains instead of the injured party's losses and may give the injured party compensation. Coercive remedies are principally an injunction that commands the wrongdoer to act or avoid acting in a certain way. Declaratory remedies provide an authoritative statement of the parties' rights and make no award of damages, restitution, or injunction. Since personal injuries and wrongful deaths are principally concerned with only damages remedies, the remainder of this article is limited to such money awards.
Case and statutory law rarely use the term economic damages;4 instead the law generally contains two broad classifications of damages: (1) compensatory or actual and (2) punitive or exemplary (Dobbs 1993; Gee, Hebdon, and Gibbins 1994; Levin et al. …