You may have some very definite opinions based on your experience with patients suffering with certain types of symptoms and your study of diseases and injuries. But will your opinion even be admitted for consideration in a Federal Court case?
Federal judges have the authority and the responsibility to admit or exclude scientific evidence under the Federal Rules of Evidence (FRE). The U.S. Supreme Court held that,
” . . . the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579, 589, 125 L Ed 2d 469, 113 S Ct 2786 (1993) (Emphasis added.) What does this mean? How is a Federal judge to determine whether a medical opinion is “reliable” enough to be allowed before the jury as evidence? This article will explore the guidelines Federal judges follow in considering your medical opinion evidence, as proclaimed by the U. S. Supreme Court (“the Court”) in Daubert
The Rule of Evidence that the Court interpreted and applied reads as follows:
“If scientific, technical, or other specialized knowledge will assist the [judge and jury] to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” ( FRE, Rule 702) The Court stated that the subject of an expert’s testimony must be “scientific . . . knowledge.” The Court explained that “scientific” implies “a grounding in the methods and procedures of science.”
Relying on Webster’s, the Court defined “knowledge” as “any body of known facts” or “any body of ideas inferred from such facts or accepted as truth on good grounds.” The Court acknowledged that the subject of scientific testimony need not be “known” to a certainty.
In evaluating scientific evidence, “evidentiary reliability will be based on scientific validity.” (Emphasis in original.)
The judge, then, must assess whether the reasoning or methodology underlying the testimony is scientifically valid (reliability) as well as whether that reasoning and methodology can properly be applied to the facts in issue (relevance).
After expressing confidence in federal judges’ capacity to undertake this review, the Court offered some “general observations” as guidelines appropriate to the task. The federal judge should consider:
- Whether the theory or technique proposed as scientific knowledge can be (and has been) tested. (The Court cited authorities to the effect that scientific explanations must be capable of empirical testing to see if they can be falsified or refuted.)
- Whether the theory or technique has been subjected to peer review and publication. The Court added that publication (but one element of peer review) is not the sin qua non of admissibility and does not necessarily correlate with reliability. Submission to the scrutiny of the scientific community increases the likelihood that substantive flaws in methodology will be detected. “The fact of publication in a peer reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity . . ..”
- The known or potential rate of error.
- “General acceptance” The Court explained, a “reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community.” (United States v. Downing, 753 F. 2d 1224, 1238 (CA3 1985).
The Court emphasized that the inquiry should be flexible. “Its overarching subject is the scientific validity – . . . the evidentiary relevance and reliability – of the principles that underlie a proposed submission. The focus, of course, should be on the principles and methodology, not on the conclusions that they generate.”
The Court pointed out that the Rules also allow: 1) hearsay which would otherwise be inadmissible, if the facts and data are “of a type reasonably relied on by experts in the particular field in forming opinions or inferences upon the subject,” (FRE, Rule 703); 2) the court to procure the assistance of an expert of its own choosing, (FRE, Rule 706); and 3) the exclusion of relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . .” (FRE, Rule 403)
The Court concluded by explaining the difference between the “quest for truth in the courtroom and the quest for truth in the laboratory.” As to the latter, “Scientific conclusions are subject to perpetual revision.” Science “is advanced by broad and wide-ranging consideration of a multitude of hypotheses, for those that are incorrect will eventually shown to be so. . ..” “Law, on the other hand, must resolve disputes finally and quickly. . . . Conjectures that are probably wrong are of little use, . . . in . . . reaching a quick, final, and binding legal judgment – often of great consequence — about a particular set of events in the past.”
The Court recognized that judges, in their role as gatekeepers, may on occasion “prevent the jury from learning authentic insights and innovations.” That is the balance struck by rules of evidence “designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes.”
Under the Rules, the judge must ensure that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand. “Pertinent evidence based on scientifically valid principles will satisfy those demands.”
The majority opinion was written by Justice Blackmun. Chief Justice Rehnquist, joined by Justice Stevens dissented concerning some of the Court’s “general observations.” Among the questions raised in the dissent was whether federal judges were really in a position to evaluate the scientific status of a theory based on its “falsifiability,” a term used in one of the treatises cited by the Court. Justice Rehnquist questioned whether Rule 702 really imposed on federal judges the obligation or authority to become amateur scientists.
The dissent noted that over twenty-two amicus briefs (briefs not by parties to the dispute, but by interested “friends of the court”) had been filed. These briefs differed from the typical briefs arguing decided cases and statutory language which the Court usually interprets. The briefs dealt with definitions of scientific knowledge, the scientific method, scientific validity and peer review, “matters far afield from the expertise of judges.” The Court’s opinion contained “no fewer than 37 citations to [these] amicus briefs and other secondary sources. While agreeing such sources may be useful and necessary in deciding how to apply Rule 702, Justice Rehnquist warned that “. . . the unusual subject matter should cause us to proceed with great caution in deciding more than we have to, because our reach can so easily exceed our grasp.”
Do you agree that the Supreme Court has called Federal judges to become amateur scientists and make decisions outside their field of expertise? Do you think this may end up denying juries an opportunity to consider the full range of medical opinions and perspectives on an issue before making its decisions?
Whatever any of us or Chief Justice Rehnquist and Justice Stevens may think, the above “observations” have since 1993 been followed by all federal trial judges as the “law of the land;” and have been a precedent to be reckoned with by state and local judges as well.
This article was prepared by Tom Petersen