LEGALLY SPEAKING Serving As an Expert: Courts Apply Standards to Weed Unsupported Opinion Testimony Many geotechnical consulting engineers, academics and contractors are asked, and many are engaged, to serve as experts in dispute resolution proceedings (e.g., litigation, arbitration, etc.). It is important for those who plan to serve as an expert to understand that educational and experi- ential qualifications alone are not sufficient to ensure that a court or other dispute tribunal will allow that person to testify as an expert or admit into evidence all of that person’s opinions, findings and conclusions. State and federal rules of evidence require courts to determine first if the proposed expert testimony will help the judge or jury understand the evidence of the case. While state and federal rules vary, they generally contain a requirement that the testimony be supported by facts or data and be based on the application of reliable principles and methods to the facts. Federal Rule of Evidence 702 allows the testimony of a “witness who is qualified as an expert by knowledge, skill, experience, training or education” 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 (d) The expert has reliably applied the princi- ples and methods to the facts of the case In addition to these evidentiary standards created by state and federal rules of evidence, state and federal courts have established tests and factors for determining if the proposed evidence is sufficiently reliable to be admitted. Beginning with the 1923 decision, Frye v. U.S., federal courts refused to admit expert testimony unless the principle upon which the testimony was based had gained “general acceptance” in the field for which the witness was offered as an expert. This is often referred to as the “Frye standard” and is still applied by many state courts. In the 1993 decision, Daubert v. Merrell Dow Pharmaceuticals, Inc., the U.S. Supreme Court recognized that some scientific principles and methods, which had yet to gain widespread recognition, might nevertheless be reliable and probative for evaluating the facts of a case. Accordingly, the Court held that “general acceptance” is not a necessary precondition of admissibility. Instead, the Court identified a number of factors courts should consider in performing the gatekeeping function of assessing whether the “reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” These factors include: • Whether the methodology can be and has been tested • Whether the theory or technique has been subjected to peer review and publication • The known or potential rate of error of the particular scientific technique • The existence and maintenance of standards controlling the technique’s operation and • Whether the technique or theory has been generally accepted in the scientific community Because of this decision, challenges to the admission of experts or their testimony are commonly referred to as “Daubert challenges” or “Daubert objections.” In the 1997 decision, General Electric Co. v. Joiner, the U.S. Supreme Court clarified its decision in Daubert. In Joiner, the Court held that, while scrutiny of Brian Wood Attorney Of Counsel Smith, Currie and Hancock scient i f ic pr inciples and methodology are vital, a court must also determine if the expert’s conclusions correlate with the supporting data. Thus, a court should exclude opinions and conclusions that are not supported by facts and analysis. Mere conclusory statements are generally disallowed. The importance of testing and factual support, as called for in Rule 702 and the Daubert and Joiner decisions, was highlighted in the 2014 Kansas federal court decision, Burdette v. Vigindustries, Inc. There, a Ph.D. meteorologist was offered as an expert to render opinions about the risk of subsidence near salt domes and the establishment of buffer zones around the domes for construction of homes. The court did not reject the expert on the basis of his qualifications (a meteorologist rather than an engineer), noting that the lack of specialized knowledge would affect the weight, not the admissibility of the evidence. Instead, the court disallowed the proposed expert on the basis that his opinions were not based on or supported by scientific methodology, objective testing or examinat ion. For example, he concluded that the salt domes must have caused damage to nearby homes because “there’s no other cause” and used circular logic in opining that number of wells was too high based solely on the fact that sinkholes developed. The court based its rejection on Rule 702 and Daubert. The takeaway: when serving as an expert in a dispute, one should be certain to correlate conclusions and opinions with supporting testing and/or facts. DEEP FOUNDATIONS • JAN/FEB 2018 • 99
