Expert Testimony-Daubert Rule

[Ron]

I'd be interested in your thoughts on the Daubert rule for expert testimony. (Google it...there's plenty of info on it) It has been required in Federal courts in the US for quite some time and is now being adopted by various states. In essence, it requires that expert testimony rely on founded, peer-accepted scientific data (including corroboration from the scientific/engineering community) rather than simple opinion or anecdotal evidence.

While we, as engineers, almost always rely on fundamental engineering principles in our practice, it is easy to slip into one's own interpretation of those principles to assess or provide opinions. Under this rule, such opinion must be corroborated.

Is this a good thing or does it stifle engineering innovation?

I'll give my opinion (already formed since I deal with this on a routine basis) after I've received a range of replies.....

Also interested in the views of those not in the US on similar requirements or your own personal views.

 

[JAE]

Just for clarification, Ron, is the following an adequate statement of the Daubert rule? This has two parts - apparently a rule laid down in 2000 and then amended in 2011:

[blue]In 2000, Rule 702 was amended in an attempt to codify and structure elements embodied in the "Daubert trilogy." The rule then read as follows:
Rule 702. Testimony by Experts
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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
(As amended Apr. 17, 2000, eff. Dec. 1, 2000.)[/blue]

[red]In 2011, Rule 702 was again amended to make the language clearer. The rule now reads:
RULE 702. TESTIMONY BY EXPERT WITNESSES
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) The testimony is based on sufficient facts or data;
(c) The testimony is the product of reliable principles and methods; and
(d) The expert has reliably applied the principles and methods to the facts of the case.
(As amended Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 26, 2011, eff. Dec. 1, 2011)
While some federal courts still rely on pre-2000 opinions in determining the scope of Daubert, as a technical legal matter any earlier judicial rulings that conflict with the language of amended Rule 702 are no longer good precedent.[/red]



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[JAE]

When you say "such an opinion must be corroborated" are you thinking in terms that your client/attorney using you as an expert must also bring in a second "independent" witness to back up whatever you say?

I guess initiall I saw the "back up" as we engineers using principles from founded sources which have already been peer reviewed via published research, codified standards, etc.

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[Ron]

JAE...does not require a second witness as an opinion...in fact that practice is usually precluded; however, it does require that something exist in the accepted literature that corroborates the opinion....keeping in mind that judges still have the latitude to accept or reject testimony in that respect. Just last week an attorney told me about a "Daubert challenge" that cost both sides approx. $500k USD....only to have the judge rule as would have been done in the past....on the "weight" of the testimony provided by the "expert".

 

[JAE]

In the few times I've been depositioned there has not been any sort of challenge to my opinions other than possibly another engineer offering a different opinon for the other side.

How does a "Daubert challenge" occur in a case? One of the attorneys files some sort of motion or something?


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[Compositepro]

In my reading of the rule that JAE has presented it seems that the rule is reasonable but still broad enough to drive a truck through. It seems to be merely another point for lawyers to squabble over. In the end the judge rules just as you point out, Ron.

 

[Ron]

JAE...a Daubert challenge comes about when one side thinks that the other side is using bogus theory or data to provide an opinion. Happens commonly; however, in the past the decision was made based on the "weight of the evidence" as presented to a jury or the judge. In a Daubert challenge, the opinion giver is supposed to have to prove the evidence with more than just his/her opinion. This is supposed to prevent "junk science" and "slick presentations" from "carrying the day" as the lawyers like to say. It is also supposed to be more consistent with the premise of many state laws that require anyone giving testimony on engineering works be a licensed professional engineer. That has not always been the case when "experts" were those with lots of practical experience and no academic credentials or licensing. Supposedly helps to separate the anecdotal occurrences from the tried and true replicated data or conditions.

From what I've seen, most judges are going to rule somewhere in between....give them enough valid science to make your point and the rest is the "weight of the evidence"......after all, there's not much testimony that gets more bland than explaining engineering concepts to a jury that doesn't have a clue about the technical stuff....just 'splain how it works, not why!

 

[Duwe6]

". . just 'splain how it works, not why! "

Excellent advice. But bring a clean copy of your calculations. In case somebody tries a "Daubert rule" challenge. You can argue with me; you can't argue with a properly documented and performed engineering analysis, with the calc's shown.

 

[dcarr82775]

Duwe6,

You can often argue a properly documented engineering analysis. 1001 ways to skin a cat, and once you get into engineer v engineer the lawyer and judges in the room get lost quickly. Try arguing calculated deflection of a 2 way concrete slab.

Back to Ron's original question, I don't see it changing much. Most everything I see would be covered by this. I don't care for a lot of the opinions I read, but they are not so far out of wack to fall under this.