Academic journal article The Review of Litigation

Using Expert Witnesses in Employment Litigation

Academic journal article The Review of Litigation

Using Expert Witnesses in Employment Litigation

Article excerpt

Julie E. Blend*

I. Introduction

Over the last decade, employment litigation has become one of the hottest areas of legal practice. With the implementation of new and expanded statutory protections of the labor force, employee suits are on the rise. Whether you find your client in a traditional on-the-job injury case or battling a sexual harassment suit, the resolution of employment litigation frequently requires the kind of scientific or other specialized information only experts can provide. Because expert testimony has become crucial in many types of litigation, employment of expert witnesses is often essential.1 This Article addresses the standard for the admissibility of expert testimony and how to handle experts most effectively in the context of employment litigation.

II. The Admissibility of Expert Testimony

A. The Daubert and Robinson Opinions

Because both the United States Supreme Court and the Texas Supreme Court have rendered key opinions on the issue in recent years,2 the admissibility of expert testimony has become a hot topic of discussion. Before these key opinions, evidentiary requirements unfortunately presented few obstacles even to non-meritorious expert testimony. The loosening of evidentiary rules for expert testimony gave rise to a cottage industry of professional experts who will testify in support of positions with little or no scientific foundation.3 Court rulings based on relevance theory exacerbated the problem. Under this theory, courts admitted any expert testimony if the expert had credentials and his opinions were relevant to the claims at issue.4 The United States Supreme Court first addressed this problem in Daubert and rejected the relevance theory in favor of strict scrutiny by trial courts, who act as "gatekeepers" to admit only expert testimony founded on good science.5 The Texas Supreme Court followed suit and adopted the Daubert analysis in Robinson.6

In Daubert, the United States Supreme Court refined the test for admissibility of scientific expert testimony in federal courts to meet the requirements of Rule 702 of the Federal Rules of Evidence.7 Before Daubert, the long-standing test for admissibility of scientific evidence was the "general acceptance" test of Frye v. United States.8 Under Frye, expert testimony based on scientific technique was admissible if the technique was "generally accepted" as reliable in the relevant scientific community.9 The Supreme Court found in Daubert that the Frye test was superseded by the adoption of the Federal Rules of Evidence-in particular, Rule 702.

The Supreme Court found a mandate for active review in the language of Rule 702, which contemplates that scientific expert testimony consist of "scientific . . . knowledge" that "will assist the trier of fact."10 According to the Court, the reference to "scientific knowledge" in Rule 702 requires that an expert's claims be validated by the accepted standards of the relevant field, and the "will assist" standard requires that the evidence be based on scientifically recognized and defensible methods.11 For scientific evidence, Rule 702 requires that an expert's opinion be "reliable" and "scientifically valid."12 The scientific validity standard requires trial courts to review whether expert testimony is founded on "good science" and proper scientific principles. 13 The Court patterned the test under Rule 702 according to the method used by scientists: scientific testimony should be based on reasoning that has been subject to analysis or peer review in the relevant scientific community, has been tested, and has gained acceptance in that scientific community.14

Following the United States Supreme Court's reasoning in Daubert, the Texas Supreme Court in Robinson held that in order to assist the trier of fact, scientific knowledge must be both relevant and reliable.15 Expert testimony is relevant only if it is "`sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute. …

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