Scientific and Other expert teStimOny207Scientific and Other Expert Testimony:Understand It; Keep It Out; Get It In†Robert D. Kolari.intrOductiOn Junk Science in the courtroom shall be no more. Thus said the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals Inc.1 This rule applies, whether the tes-timony under consideration is “pure science,” or whether it constitutes more general expert testimony in such specialties as engineering, mechanics, economics and the like.2 However, what makes technical or other expert evidence admissible — or not admissible at all – is still a “Never-Never Land” for many attorneys as well as many judges. When faced with an offer of expert testimony under Federal Rule of Evidence (FRE) 702, the trial judge must make a preliminary assessment of whether the reasoning or meth-odology is “scientifically valid” and “properly can be applied to the facts at issue,”3 within the dictates of FRE 104(a). As all litigants know by now, the trial judge first should make a determination whether the proposed testimony is relevant to the facts at issue in the case. If the testimony which is being offered does not satisfy the relevancy requirements, it matters not how scientifically accurate the proposed testimony might be. This is Supreme Court “Holy Writ,” but it also is pretty basic common sense. Assuming that the court already has determined that the proposed testimony is relevant, the overarching question for the trial judge in a federal court, or any other tribunal that follows the Federal Rules of Evidence, is whether the testimony to be offered is “reliable.”† Submitted by the author on behalf of the FDCC Products Liability Section.1 509 U.S. 579 (1993).2 Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).3 Daubert, 509 U.S. at 593.fdcc Quarterly/Spring 2007208Robert Kolar is a partner in the Chicago office of Tressler, Soderstrom, Maloney & Priess, LLP. He is Chair of the firm’s Product Liability and Complex Technical Litigation Depart-ment. Mr. Kolar is also the Chair of the Products Liability Litigation Section of the Federation of Defense & Corporate Counsel. He received a Bachelor of Science Degree in Phys-ics and Mathematics from Roosevelt University in 1961 and did graduate work in physics at the Illinois Institute of Tech-nology. Mr. Kolar was a Research Nuclear Physicist at the IIT Research Institute in Chicago, where he was involved in basic research in nuclear structure. In this position, he sent an instrument package to determine the composition of the lunar surface on one of the first Lunar Surveyor missions. Mr. Kolar received his J.D. from John Marshall Law School in 1967 and was elected to the Order of John Marshall. From 1967 to 1973, he served on the John Marshall Law School adjunct faculty. He is licensed to practice law in Illinois and in Texas and is a member of the state bars of both states. Mr. Kolar is an active member of the Product Liability and International Sections or Commit-tees of the Federation of Defense and Corporate Counsel, the International Association of Defense Counsel, and the Illinois Association of Defense Trial Counsel. For the last decade the Supreme Court has mandated that the methodology employed by the expert must conform sufficiently to what has been called the “Scientific Method.”4 In doing so, the court must look to a number of factors that include, without limitation:• whether the reasoning or methodology underlying the testimony has been tested;• whether the reasoning or methodology has been subjected to peer review and publication;• the potential rate of error of the reasoning or the methodology offered by the expert; and• whether the reasoning or the methodology has been generally accepted or rejected in a relevant scientific discipline.4 It is important to note that the “Scientific Method” does not apply only to scientific or engineering mat-ters. Rather, it applies to any method of analysis requiring the formation of an opinion or hypothesis, and then validating that opinion.Scientific and Other expert teStimOny209 The last entry on this list sounds suspiciously like the so-called Frye rule.5 Historically, in jurisdictions such as Illinois where Frye is strictly followed, it is only necessary that the expert make the statement or offer evidence that the methodology employed is accepted in his or her discipline. This self-serving statement, by itself, would be sufficient to allow the jury to hear the evidence in most cases. However, under either the Frye rule or the Daubert rule, whether the “generally accepted” principle can and should be subject to rigorous ex-amination to test the basis for what the expert states is generally acceptable. A fifty-state survey of the “Standards for the Admissibility of Scientific Expert Testimony” is included as Appendix 1 of this article. Even in a state court that does not follow Daubert, a Daubert-type cross-examination following a motion in limine or before the jury will reap substantial benefit. However, before discussing viable types of arguments, it would be helpful to understand how trial judges actually view their responsibilities under the Daubert/Kumho rule.ii.hOw JudgeS uSe the daubert criteria In 2001, nearly four hundred state court judges participated in a national survey about expert evidence in the post-Daubert world.6 Interestingly, thirty-two percent of the judges believed that the intent of Daubert was to raise the threshold of admissibility for scientific evidence; twenty-three percent believed that the intent was to lower the threshold for admis-sibility; and thirty-six percent believed that the Supreme Court intended neither to lower nor raise the threshold for admissibility.7 These latter judges in particular felt that the “intent was to articulate a framework for admissibility and to give Judges the discretion to apply the guidelines as appropriate.”8 Finally, eleven percent of the judges were uncertain as to what the Supreme Court intended in the Daubert ruling. Most of the judges (about seventy-five percent), however, believed that Daubert generally intended to guard against “junk science” in the courtroom.9 When the judges discussed the value of Daubert in terms of establishing parameters for judicial decision-making regarding the admissibility of scientific evidence, fifty-five percent reported that Daubert had a “great deal” of
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