The Components Of The Daubert Test
Like the courts of many other jurisdictions, the Third Circuit has summarized the Daubert test as a "trilogy of restrictions" consisting of "qualification, reliability and fit."1 Unless it is conceded by the challenging party, each of the factors must be addressed in the Daubert hearing.
The First Factor: Qualification
The qualification factor "refers to the requirement that the witness possess specialized expertise ... a broad range of knowledge, skills and training qualify an expert."2 The issue is not whether the expert has the best conceivable qualifications to opine on a given subject.3 Instead, the court considers "whether the proposed expert witness has sufficient knowledge, skill, training, education or experience to testify with authority on the particular subject matter or issue on which he or she proposes to opine."4 The requirement is construed liberally, and the "imposition of overly rigorous requirements of expertise is eschewed."5
In appropriate cases, expertise developed through professional experience can compensate for an absence of formal training. In Waldorf v. Shuta, the court rejected a challenge to the testimony of an expert on vocational rehabilitation despite his lack of formal training in that field. After reciting the expert's long government experience in programs for the disabled, the Third Circuit found that he had "substantially more knowledge than an average lay person regarding employment opportunities for disabled individuals." However, the proposed expert must have more than a general familiarity, acquired through work experience, with the subject of his or her testimony.6
In Aloe Coal Co. v. Clark Equipment Co., the Third Circuit precluded a tractor sales representative from testifying as an expert regarding the cause of a tractor fire, on the grounds that he was not an engineer, a designer of construction machinery or a mechanic, and had no experience in determining the cause of fires or operating machinery.7 Work experience may be sufficient to qualify an expert, but it must be directly relevant to the subject of his or her testimony.
A witness qualified to give one component of his or her proposed opinion may be unqualified to give another. In Poust v. Huntleigh Healthcare, the court found the plaintiff's engineering and safety expert to be qualified to render an opinion on the alleged defect in a medical device.8 However, the court rejected the expert's attempt to opine that the defect he found caused the plaintiff's injuries. The court limited his trial testimony accordingly.
The Second Factor: Reliability
The reliability factor is the centerpiece of Daubert analysis, and it is the most challenging component of the test. It requires the trial judge to understand and critically evaluate the methodology by which a scientist, physician, engineer, accountant or other expert collects information, analyzes data and reaches conclusions. As the post-Daubert law has matured, the federal courts have become increasingly familiar with a broad variety of scientific and technical fields, and in some instances with the prior work of particular experts.
The reliability requirement differentiates testimony premised upon "the methods and procedures of science" as opposed to "subjective belief or unsupported speculation."9 The non-exclusive criteria adopted in Daubert have been refined in this and other circuits to entail a total of eight factors: (1) whether the theory or technique can be tested; (2) whether the theory or technique has been subjected to peer review; (3) whether there is a high rate of known or potential error; (4) whether there are standards controlling the technique's operation; (5) whether the theory enjoys general acceptance; (6) whether there is a sufficient relationship between the technique and methods which have been established to be reliable; (7) whether the expert witness's qualifications are sufficient; and (8) whether the method has been put to non-judicial uses.10 In Magistrini, the district court compiled a useful list of other factors, found by other federal courts to be relevant considerations in specific cases. They include:
(i) whether the expert's proposed testimony grows naturally and directly out of research the expert has conducted independent of the litigation;" (ii) whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion; (iii) whether the expert has adequately accounted from alternative explanations; (iv) whether the expert is being as careful as he would be in his professional work outside of the litigation; and (v) whether the field of expertise asserted by the expert is known to reach reliable results for the type of opinion proffered by the expert.11
As does the original test articulated by the Supreme Court in Daubert, these factors focus the Court's attention upon the distinction between methodology proven in scientific practice and methodology developed for purposes of the case.
To satisfy the reliability prong of the Daubert test, the expert's methodology must be carefully documented and explained, preferably by reference to non-litigation applications. Opinions evaluating expert testimony on grounds of unreliability often focus on the sufficiency of explanation and documentation.12
Finally, the reliability inquiry focuses "solely on principles and methodology, not on the conclusions that they generate."13 That does not mean, however, that the content of those conclusions is irrelevant. The Supreme Court noted in General Electric Co. v. Joiner that "nothing in Daubert or the Federal Rules of Evidence requires a District Court to admit opinion evidence that is connected to existing data only by the ipsi dixit of the expert."14
A New Jersey District Court reconciled the two principles as follows:
a court must engage in limited review of an expert's conclusions 'in order to determine whether they could reliably flow from the facts known to the expert and the methodology used.' A court may conclude, after viewing an expert's conclusions in light of the evidence on which he relies and the methodology employed, that there is simply too great an analytical gap between the data and the opinion proffered.15
The reliability determination is an individualized inquiry, yet these general principles govern every case. The methodology should be subject to objective criteria and testing, proven in the scientific or technical sphere rather than created for litigation, and documented with precision and care.
The Third Factor: Fit
The fit component of the Daubert test concerns "the proffered connection between the scientific research or test results to be used and particular disputed factual issues in the case,"16 It requires that the testimony "must in fact assist the jury, by providing it with relevant information, necessary for a reasoned decision of the case."17
This factor focuses upon the nexus between the methodology and the case-specific opinion. It bars admission of otherwise reliable opinion evidence if the expert attempts too ambitious an extrapolation of theory to facts. For example, in In re TMI Litigation, the Third Circuit rejected the admission of a meteorologist's "plume movie," designed to illustrate the movement of a radioactive plume, on the ground that it was irrelevant to the Three Mile Island nuclear accident at issue in the case.18 The expert conceded that he lacked adequate details about the Three Mile Island conditions to track the radioactive plume with precision, but attempted to support the plume movie as "the beginning of an investigation, not the end." The Third Circuit affirmed its exclusion on grounds of insufficient "fit."
Similarly, in Calhoun v. Yamaha Motor Corporation, USA, the Third Circuit determined that while the disputed witness "possessed expertise in relevant fields, he failed to apply this expertise to the matter at hand," relying for his opinion on jet ski acceleration upon "his familiarity with outboard motors [and] his recollection of a friend's motorcycle."19 In short, this final factor of the Daubert test can derail the testimony of an admittedly qualified witness using sound methodology.
Ten years after Daubert, in light of numerous opinions by the lower courts refining and explaining its test, much of the alarm and confusion that initially greeted the Supreme Court's opinion has dispersed. The process of selecting an expert now requires a thorough understanding by the attorney of the methodology to be used, and a sophisticated critique of that methodology with a future Daubert hearing in mind. 1 Calhoun v. Yamaha Motor Corp., 350 F.3d 316 (3rd Cir. 2003) at 321; Schneider v. Fried, 320 F.3d 396, 404 (3rd Cir. 2003).
2S chneider, 320 F.3d at 404.
3 Holbrook v. Lykes Brothers Steamship Co., 80 F.3d 777, 782 (3rd Cir. 1996).
4 Yarchak v. Trek Bicycle Corp., 208 F. Supp. 2d 470, 494-95 (D.NJ. 2002).
5 Waldorf V. Shuta, 142 F.3d 601, 625 (3rd Cir. 1998).
6 Paoli, 35 F.3d at 741; Lithuanian Commerce Corp. v. Sara Lee Hosiery, 177 F.R.D. 245, 255 (D.N.J. 1997).
7 816 F.2d 110, 114 (3rd Cir.), cert. denied, 484 U.S. 853 (1987).
8 998 F.Supp. 478, 492-93 (D.N.J. 1998).
9 Paoli, 35 F.3d at 742.
10 Daubert, 509 U.S. at 592-95; Paoli, 36 F.3d at 742 n.7; Magistrini, 180 F.Supp.2d 584 (D.N.J. 2002)
11180 F. Supp. 2d at 594-595 (citations omitted).
12 See, e.g., Magistrini, 180 F. Supp. 2d at 604-608 (finding expert opinion unreliable); Voilas v. General Motors Corp., 73 F. Supp. 2d 452, 460-63 (D.N.J. 1999) (finding expert opinion reliable).
13 Daubert, 509 U.S. at 595.
14 General Electric Co. v. Joiner, 522 U.S. at 145-146.
15 Yarchak v. Trek Bicycle Corp., 208 F. Supp. 2d 470, 495 (D.N.J. 2002).
16 Paoli, 35 F.3rd at 743.
17 Yarchak, 208 F. Supp. 2d at 496; Magistrini, 180 F. Supp. 2d at 595.
18 193 F.3d 613, 669-671 (3rd Cir. 1999).
19 Calhoun, 350 F.3d 316 (3rd Cir. 2003) at 324.
Anne M. Patterson is a Partner of Riker Danzig Scherer Hyland & Perretti LLP in Morristown, specializing in products liability and commercial litigation. This article was previously published in the February 2004 issue of New Jersey Lawyer Magazine, a publication of the New Jersey State Bar Association, and is reprinted here with permission.