In Michigan, we are adapting to the changes in our rules of evidence relating to expert testimony (MRE 702, 703).
The Federal Judicial Center reports on an interesting study (pdf file) addressing expert testimony in federal civil trials. The report, “Judge and Attorney Experiences, Practices, and Concerns Regarding Expert Testimony in Federal Civil Trials,” by Carol Krafka, Meghan A. Dunn, Molly Treadway Johnson, Joe S. Cecil and Dean Miletich, was originally published in Psychology, Public Policy, and Law 2002, vol. 8, no. 3, pages 309-332 (2002, American Psychological Association).
The report includes these findings (excerpt):
Judges, for example, appear to be taking a more active role in scrutinizing expert evidence, although their decisions concerning admissibility still tend to rely more heavily on the traditional Frye general acceptance test (Frye v. US, 1923) than on Daubert criteria . . . .
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The most frequent reasons cited by judges for excluding testimony relate to traditional rules governing expert testimony. In 1998, judges most frequently said they excluded testimony because it was not relevant (47%), because the witness was not qualified (42%), or because the proffered testimony would not assist the trier of fact (40%). Similar reasons applied to judges’ earlier decisions to exclude testimony, the most frequently cited reasons in 1991 being that the testimony would not have assisted the trier of fact (40%) and that the witness was not qualified (36%). The earlier survey did not include an option for judges to indicate whether exclusion was based on a decision that the expert’s testimony was not relevant. Other reasons for exclusion in more than 15% of the trials referenced in 1998 were that the facts or data on which the expert’s testimony was based were not reliable (22%), that the prejudicial nature of the testimony outweighed its probative value (21%), and that the principles and methods underlying the expert’s testimony were not reliable (18%). About 10% of judges said they excluded evidence because the proffered evidence was repetitious and wasteful of court time, and an equal number said the expert’s testimony was not applied reliably to the facts of the case.
As noted, 18% of judges who excluded expert testimony said they did so in part because they deemed the methods and principles of the expert unreliable. The evaluation of an expert’s methodology is consistent with judicial application of Daubert criterion for determining admissibility. Judges invoked other Daubert criteria only rarely, however. They cited problems with the acceptance of the expert’s methods by others in the field, the absence of peer review, and insufficient theory testing in fewer than 8% of the cases in which they excluded evidence. Problems with the nonfalsifiable nature of an expert’s underlying theory and difficulties with an unknown or too-large error rate were cited in less than 2% of cases.
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The two most frequent problems with experts cited by judges and attorneys involve experts who become advocates for the side that hired them and the excessive expense of hiring experts. These two problems received mean judge and attorney ratings above the scale midpoint, indicating that they occurred with some regularity. No other problems were rated above the midpoint by judges, and attorney ratings for other problems fell at or below the midpoint.
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Judges are handling admissibility issues most often in the context of motions in limine and objections to expert evidence raised at trial. Motions in limine are in much greater use than they were prior to Daubert, so it is not surprising to find that judges are holding more pretrial Daubert-like hearings than previously. The bases for limiting or excluding testimony do not appear to have been greatly affected by Daubert, at least not with respect to the cases we sampled. Judges who excluded testimony in the recent survey did so most often because it was not relevant, the witness was not qualified, or the testimony would not have assisted the trier of fact. These reasons are similar to reasons most frequently cited by judges in 1991, and they do not reflect the factors cited in Daubert.
In addition to changing the way judges deal with expert evidence, Daubert appears to have altered the behavior (or at least the self-reported behavior) of many attorneys. Perhaps in response to the increasingly active role of the judges in excluding or limiting testimony, attorneys reported more closely scrutinizing the credentials of their own experts and filing more motions to exclude opposing expert evidence. They also reported greater involvement in the preparation of their expert’s testimony.
Although expert testimony has received increased judicial attention in the years since Daubert, problems with testifying experts have been largely unaffected by the passage of time. Judges and attorneys in the recent surveys reported frequent problems with partisan experts and the excessive expense of experts. These same issues dominated in pre-Daubert times.