The
Trial Judge as Gatekeeper
By Bryan R. Reid, Partner
Elliot, Snyder & Reed, LLP
Our firm recently tried a case that demonstrates the relatively deferential
approach that most courts presently take in scrutinizing the testimony of expert
witnesses. We represented a well-qualified, board certified orthopedic surgeon
in a wrongful death action brought by the family of a man who died following
rotator cuff surgery. While the defense presented the testimony of a similarly
well-qualified orthopedic surgeon at trial, the plaintiff's expert was a urologist
who specialized in "male enhancement" surgery (both length and girth).
Despite a strenuous objection to the expert's qualifications, the trial judge
ruled that his testimony was admissible, and that the jury should have the opportunity
to assess the credibility of the witness and determine the weight such testimony
should be given. Fortunately, the jury did not give much weight to the urologist's
testimony on their way to returning a defense verdict. However, it certainly
raises the question of whether such a case had sufficient merit to warrant a
lengthy trial (no pun intended of course).
A recent line of Federal cases may assist California defense attorneys and their clients in excluding unreliable expert testimony, or so called "junk science," from the courtroom. The law is clear that expert testimony must be shown to be "reliable" before being admissible, though the question remains as to what is reliable in any given circumstance. The United States Supreme Court addressed the issue in Daubert v. Merrill Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993), which held that the Federal Rules of Evidence assigned to the trial judge the task of insuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. Daubert, 509 U.S. at 597. The court in Daubert set forth certain factors which may be considered in determining the reliability of a particular scientific theory or technique, including testing, peer review, error rates, and acceptability in the relevant scientific community. Daubert, 509 U.S. at 594. The applicability of the Daubert analysis was extended to all types of specialized knowledge in Kumho Tire Company Ltd v. Carmichael 526 U.S. 137 (1999), which held that the determination applies to all expert witnesses. In explaining the importance of the requirement, the court noted:
"The objective of that requirement is to insure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relative field."
In California, the Daubert test is not directly applicable to actions
litigated in California state courts as the California Supreme Court has reconfirmed
the "general acceptance" rule of People v. Kelly (1976) 17
Cal.3d 24 in People v. Leahy (1994) 8 Cal.4th 587. Under the Kelly
rule, as a matter of foundation for expert opinions based upon scientific evidence,
it must be established that the opinions are reliable. To be reliable, it must
be shown that the opinion has gained general acceptance in the particular field
in which it belongs. Kelly, 17 Cal.3d at 24. The Kelly case sets
forth guidelines to determine whether scientific evidence may be received in
evidence, including the reliability of the method in general, whether the evidence
is furnished by a properly qualified expert, and whether the proper scientific
procedures were used in the particular case. Kelly, 17 Cal.3d at 30.
While not binding in California State Court actions, the amount of interest generated by the Daubert and Kumho Tire decisions should certainly prompt judges to more carefully examine the reliability of the opinions of expert witnesses. These Federal cases provide authority for the notion that the trial judge should act as a "gatekeeper" to exclude unreliable opinions and that such an analysis applies to all expert testimony, not only evidence which is strictly scientific in nature. At our firm, we intend upon advancing these theories on behalf of physician defendants by arguing that the trial judge should properly function as a "gatekeeper" to preclude unreliable expert testimony prior to trial rather than allowing the jury to make such a determination in the course of deciding how much weight to give to the testimony.
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Bryan R. Reid is a partner in the Redlands litigation firm of Elliot, Snyder, & Reid. Reid's civil trial practice focuses on the defense of professionals in health care and related service industries. Mr. Reid is the Co-Chair of the joint Medical-Legal Committee of the San Bernardino County Medical Society and San Bernardino County Bar Association. He can be reached at 909-792-8861 or by e-mail at bryan.reid@esrlaw.com.
