Academic journal article Texas Law Review

Expert Testimony and the Quest for Reliability: The Case for a Methodology Questionnaire *

Academic journal article Texas Law Review

Expert Testimony and the Quest for Reliability: The Case for a Methodology Questionnaire *

Article excerpt


Over the last three decades the Supreme Court has repeatedly considered the question of admissibility of expert testimony under Federal Rule of Evidence 702. Because the codification of the Federal Rules was liberal in spirit, the Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.1 created a flexible, nonexclusive factor test to assess the reliability of expert testimony. While the test did address some questions about the new statutory standard, it raised many others and arguably left the legal landscape more uncertain than it had been under the common law.

In Kumho Tire Co. v. Carmichael,2 the Court unequivocally announced that the Daubert inquiry was not limited to scientific expertise; rather, the Court determined that Daubert's teachings applied equally to both scientific expertise and experience-based, technical fields. But the Court in Kumho did more than merely expand the reach of the Daubert inquiry outside the realm of conventional scientific expertise. It also explicitly broadened the factors that could be considered by the reviewing judge. Kumho made clear that the list of factors in Daubert was neither complete nor exclusive and noted not only that additional factors could be considered, but also that a court need not consider all the factors enumerated in Daubert itself. The result: a guideline that failed-and continues to fail-to give guidance to those who are supposed to follow it.

Due to the increased flexibility of the Daubert test along with this expansion of its application, courts have experienced trouble applying the Daubert formula. Lay judges with little, if any, scientific and technical background are given complete discretion to determine what to consider and how to consider it without any direction about what they actually should be considering. A judge's conclusion on reliability, then, seems highly dependent on his or her own views of what is methodologically important-an opinion that may be no more qualified than the opinion of the common juror. Because there is little to support the idea that judges are any better equipped than jurors in making such reliability determinations, it is clear that Daubert and its progeny have not done much to help judges assess reliability in an effective way.

In practice, Daubert has instead injected ambiguity into the reliability inquiry. While one judge may review all four factors described in Daubert and determine that a particular expert's testimony is sufficiently reliable, another judge could conjure up a five-factor lens and find the exact opposite. The potential for such inconsistent outcomes suggests that Daubert may not be the rigorous, well-informed reliability inquiry the legal community needs to ensure that scientific and technical evidence is afforded its proper weight. The current formulation of this inquiry can, on the one hand, result in admission of unreliable expertise that will unduly sway juror decision making. On the other hand, however, the inquiry also creates the potential that extremely probative expert testimony, which would be very helpful to jurors, is deemed inadmissible. Greater guidance is undoubtedly needed.

This Note proposes not an alternative to Daubert, but rather an addition to the requirements courts place on expert testimony. Part I of this Note explains the state of the jurisprudential stage; it describes the development and extension of the Daubert inquiry. Part II describes the problems stemming from the evolution of Daubert and how its application is insufficient to ensure reliability of expert testimony. It highlights the concerns that arise out of the current formulation of Daubert and how seemingly conflicting conclusions on reliability can result from such an inquiry. Part III then gives examples of how the Daubert inquiry creates the potential for conflicting outcomes dependent only on the mind of the presiding judge. It shows how this risk is present in the context of traditional scientific testimony, and perhaps even more critically where technical, or simply novel, expertise is at issue. …

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