Professional Boatbuilder
January 1998
Rules of Evidence for Expert Witnesses: An Attorney's Perspective
by David Farrell, Jr.
How important is expert testimony? If my client needs an expert at trial and I'm not convinced that the expert's presentation is going to be good, we settle.
What makes for good expert testimony? An interesting, credible, and scientifically reliable opinion. The first two requirements are readily satisfied; science is the tricky part.
Federal Rule of Evidence 702, which governs the admissibility of expert opinions in federal court, states. "if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."
Most maritime cases do end up in federal court. But, Rule 702's standards generally apply in state court as well.
In 1993, Rule 742 spawned an important U.S. Supreme Court case: Daubert v. Merrell Dow Pharmaceuticals, Inc. That case dealt with medical experts, but expert witnesses in any field should be familiar with
Daubert. And because expert testimony succinctly focuses the strengths and weaknesses of any case, sophisticated maritime litigants should understand the decision as well. Simply put: if
Daubert's ground rules aren't satisfied, the trial judge won't let the expert's opinion get to the
jury.
In this landmark case, the Supreme Court defined the trial judge's role as a "gatekeeper" who should admit only reliable scientific evidence under Rule
702. The trial judge "screens" the expert's testimony to determine if it will assist the jury in deciding the case.
Daubert then outlined four flexible factors that the trial judge applies to ensure that only reliable
- that is, trustworthy - expert testimony reaches the jury:
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Is the theory capable of testing to determine whether the expert's hypothesis might be false?
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Are controls and other means of determining error rates built into the expert's technique?
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Has the expert's methodology been subjected to peer review and publication?
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Is the expert's technique generally accepted in the relevant scientific community?
When the Supreme Court sent
Daubert back to the lower court, it added a fifth factor: was the methodology based on research conducted by the expert independent of litigation? This was intended to prevent "hired guns" from inventing shoddy research methods in an effort to further the client's case with untrustworthy evidence.
The hot topic now being litigated under the Daubert factors is "junk science." For instance, can truth serum reliably elicit the truth from a witness? A judge in a Massachusetts murder case recently said no: such tripe fails Daubert's requirements, and it would only confuse the jury to hear testimony about it.
On the other hand, you don't need a Ph.D to be an expert. The most persuasive experts, in my opinion, are those who complement their scientific knowledge with practical experience. This is true of neurologists and naval architects alike.
Jurors will surely snore if the forensic reconstruction of a boating accident relies solely on engineering algorithms. On-site investigation techniques developed over years of experience can be just as reliable and perhaps more convincing. For example, angle-of-impact identification in a collision case, coming from an experienced marine surveyor, is the kind of "specialized knowledge" that can "assist the trier of fact" under Rule 702.
In the tragic case of
Miss J v. Boatbuilder described in Eric Sponberg's article, the trial judge determined that the competing experts' testimony met the requirement of
Daubert. Here are the judge's instructions to the jury on how to consider the experts' opinions in terms of Rule 702.
The rules of evidence ordinarily do not permit witnesses to testify as to opinions or conclusions. An exception to this rule exists as to those whom we call 'expert witnesses.' Witnesses who, by education and experience, have become expert in some art, science, profession, or calling, may state their opinions as to relevant and material matters, in which they profess to be expert and may also state their reasons for the opinion.
You should consider each expert opinion received in evidence in this case and give it such weight as you may think it deserves. If you should decide that the opinion of an expert witness is not based upon sufficient education and experience, or if you should conclude that the reasons given in support of the opinion are not sound, or if you feel that it is outweighed by other evidence, you may disregard the opinion entirely.
I'm always terrified listening to the judge instruct the jury. Years of dispute over technical facts and amorphous issues of law come down to a few minutes at the end of the case in which the judge tells the jurors what they need to do and how they need to do it, and sends them out to deliberate. If there are flaws in the jury system, they seem compounded right here: the judge's instructions are oral and often complicated and vague, but the jurors aren't allowed to take notes. How much gets lost?
Despite its flaws, the jury is still the best system ever devised to determine the truth. As we all know, expert witnesses are increasingly important in that quest. Under current law, expert testimony that satisfies
Daubert and is cogently presented to the jury is the best trial strategy. Conversely, a floundering expert torn up on cross-examination is sure to sink the ship.
