Academic journal article Defense Counsel Journal

Encouraging More Effective Use of Court-Appointed Experts and Technical Advisors

Academic journal article Defense Counsel Journal

Encouraging More Effective Use of Court-Appointed Experts and Technical Advisors

Article excerpt

With the increasing need for sound experts in courtrooms, efforts should be concentrated on using available means to obtain them

CONCURRING in General Electric Co. v. Joiner, Justice Breyer quoted the following from the amicus curiae brief of the New England Journal of Medicine:

      [A] judge could better fulfill this gatekeeper function if he or she had
   help from scientists. Judges should be strongly encouraged to make greater
   use of their inherent authority ... to appoint experts.... Reputable
   experts could be recommended to courts by established scientific
   organizations, such as the National Academy of Sciences or the American
   Association for the Advancement of Science.(1)

In complex products liability actions, mass tort litigation, and patent cases, courts are being inundated with cases that raise controversial questions of science, technology and medicine. While the use of court-appointed advisors and experts has long been seen as potentially beneficial in these types of cases,(2) court-appointed advisors and experts have not yet been widely used. A survey conducted by the Federal Judicial Center suggests that many judges are reluctant to intrude into the presentations of the parties, but the survey also indicates that there is little available guidance on the selection and use of advisors or experts.(3)

Federal Rules of Evidence 104 and 706, which are the rules relied on for court appointments of advisors and experts, respectively, provide no direction on how to locate suitable experts or when they should be used. Available case law is hardly more instructive.


In 1923 in Frye v. United States, the Court of Appeals for the District of Columbia held that scientific evidence must have gained "general acceptance in the particular field in which it belongs" in order to be admissible.(4) This became the prevailing test for deciding the admissibility of expert testimony, but it drew some criticism because of difficulties in its application.(5) After the adoption of the Federal Rules of Evidence in 1975, and amid the increasing criticism of the Frye test, courts were split over whether Frye should govern. Courts that were unwilling to use Frye adopted various other tests for evaluating the admissibility of scientific evidence. Different tests led to varied outcomes and set the stage for a resolution by the U.S. Supreme Court.

The Supreme Court addressed the issue in 1993 in Daubert v. Merrell Dow Pharmaceuticals Inc., holding that the Federal Rules of Evidence superseded Frye and that Rule 702 does not require "general acceptance" as a prerequisite to admissibility.(6) Where scientific expert testimony is advanced, the Court stated, the "trial judge, pursuant to Rule 104(a), must make a preliminary assessment of whether the testimony's underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue." Thus, the Court set up the trial court as a gatekeeper to control the admission of scientific testimony.

The Court mentioned a number of relevant factors for the gatekeeper to consider: (1) whether the theory or technique can and has been tested, (2) whether it has been subjected to peer review and publication, (3) the known or potential rate of error of a particular theory or technique and (4) whether the theory has been generally accepted in the relevant scientific community. The Court noted, however, that this inquiry is "flexible," and it referred to a number of jurisdictions that have adopted their own reliability approach.(7) It made only a passing reference to court appointment of an expert and no reference to court appointment of an advisor.

In 1999, in Kumho Tire Co. v. Carmichael,(8) the Supreme Court clarified that Daubert applies not just to proposed expert testimony based on "science," but also to all expert testimony.


Two primary sources of authority allow federal courts to appoint an expert. …

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