American University Law Review
October, 1995
NOVEL EXPERT EVIDENCE IN FEDERAL CIVIL RIGHTS LITIGATION
GORDON J. BEGGS*
INTRODUCTION
Since the U.S. Supreme Court's decision two years ago in
Daubert v. Merrell Dow Pharmaceuticals, Inc.,1 which clarified
the standards for admitting new scientific evidence,2 scholars have
commented extensively on the expanded use of expert evidence in
the courts. In particular, commentary has focused on the fields
of mass tort litigation3 and criminal law.4 Less noticed,
but no less dramatic, is the parallel increase in the use of
expert evidence in federal civil rights litigation.5 Beginning with
the landmark case of Brown v. Board of Education,6 this trend is
reflected in the diverse issues involving expert proof, often
novel in nature, which have regularly appeared in the Supreme
Court's civil rights decisions. In the 1970s, for example,
the Court pondered medical evidence in civil rights cases that
presented such diverse issues as the question of when human life
begins,7 the
ability of a pregnant teacher to continue to work,8 and the
suitability of methadone users for employment as public transit
workers.9 The
Supreme Court also considered penological evidence supporting a
state's refusal to hire women as correctional officers.10 Frequently,
the Court's civil rights opinions grappled with various types of
statistical evidence, including a validation study demonstrating
that a hiring exam for police was effective in selecting recruits
who could succeed in the police training program,11 calculations
disproving racial disparity in hiring teachers in public
schools,12
data indicating the rate of admission of women to an institution
of higher learning,13 statistics depicting the results of a
racial preference in medical school admissions,14 and
demographic data relating to racial segregation in public
schools.15
In election rights cases decided during the 1970s, the Supreme
Court considered statistics on minority voter registration in
jurisdictions with literacy tests,16 the magnitude
of campaign contributions restricted by federal law,17 and, on
several occasions, the equality of legislative apportionments.18
Cases decided in the 1980s revisited issues relating to
statistical evidence of racial discrimination in the promotion of
employees by the U.S. Postal Service19 and in the
pay rates of bank employees20 and state and local agricultural workers.21 Other cases
considered medical evidence on the physiological and
psychological qualifications for employment of flight engineers
over age sixty,22 social psychological testimony regarding sex
stereotyping in evaluations for admission to partnership in an
accounting firm,23 and testimony from a variety of experts on
whether creationism, which asserts that the Biblical account of
the beginning of the universe is supported by scientific inquiry,
could be characterized properly as science so that teaching it
would not violate the Establishment Clause of the First
Amendment.24
In recent Terms, medical evidence has played a central role in
the Court's civil rights cases on an array of difficult issues,
including the involuntary administration of antipsychotic drugs
to prisoners,25 the withholding of artificial means to
preserve the life of a terminally ill individual,26 the
appropriateness of excluding discussion of abortion during
government-sponsored family planning counseling,27 and, for
purposes of a due process challenge to commitment
procedures, thediagnosis and treatment of mentally retarded
persons.28
While considering cases under the Eighth Amendment,29 the Court
encountered expert evidence that executions by administering
cyanide gas30
and by hanging31 were unnecessarily prolonged and torturous.
Similarly, the Court remanded to the district court a prisoner's
challenge to conditions of confinement in order to evaluate
expert evidence of injury to health based on exposure to
environmental tobacco smoke.32 Addressing the constitutionality of
restrictions on access to abortions, the Court also scrutinized
expert testimony on the effects of spousal notification
requirements, informed consent, and a twentyfour hour waiting
period.33
The proliferation of new types of expert evidence in federal
civil rights cases has not gone unchallenged. Disputes regarding
the admissibility of expert evidence are now routine. To date,
approximately one in every eight federal cases citing to the
Supreme Court's decision in Daubert is a civil rights
action.34
The frequency with which issues of expert evidence arise in civil
rights cases is unlikely to diminish for a number of reasons.
First, the technocratic nature of our society, including its
increasing reliance on technological means to regulate human
behavior in areas such as employment and law enforcement,35 generates
many civil rights cases. Second, case lawand statutes have
recognized new claims, such as exposure to unreasonable health
risk from environmental tobacco smoke or discrimination due to
disability, which ordinarily require consideration of expert
evidence.36
Third, the economic value of most categories of employment
discrimination cases arising after the passage of the Civil
Rights Act of 1991 (1991 Act)37 has increased significantly and will support
additional investment in expert proof for this common type of
civil rights litigation. Finally, the 1991 Act has made
available an award of expert fees to the prevailing party in
certain civil rights cases.38
This Article addresses evidentiary and procedural issues which
arise when parties offer novel39 expert evidence in federal civil rights
litigation. Part I chronicles the introduction of Professor
Kenneth Clark's controversial tests using dolls representing
different races in the landmark case of Brown v. Board of
Education. Part II examines the traditional standard for the
reliability of novel scientific proof set forth in Frye v.
United States,40 the development of alternative standards after
the adoption of Federal Rule of Evidence 702 in 1975, and the
assessment of the reliability of expert evidence in federal civil
rights cases decided prior to Daubert. Part III analyzes
the Supreme Court's decision in Daubert, which attempted
to resolve the conflicting authorities governing the reliability
of expert evidence and directed the district courts to serve as
gatekeepers by screening the relevance and reliability of
purportedly scientific evidence under the Federal Rules of
Evidence.41
Part IV explores factors that influence a district court in its
role as gatekeeper, including the court's philosophy with respect
to this duty, the scope of the court's discretion, and the
court’s duty to exercise this discretion. Part IV suggests
that because civil rights actions assert basic personal rights42 and
often raise broad social justice issues, district courts should
incline toward admitting novel expert evidence to facilitate the
resolution of these cases on their merits. This section also
considers the relationship between the procedural context,
including issues arising under the comprehensive amendments to
the Federal Rules of Civil Procedure effective December 1,
1993,43 and
the court's exercise of discretion. In addition, Part IV
discusses the need to tailor the gatekeeping function to the type
of evidence proffered. The section suggests that the courts
adopt different approaches to assess the scientific, technical,
and other specialized knowledge which may be admitted as expert
evidence. Part V examines elements of the gatekeeping
determinations exhibited in recent civil rights cases. Finally,
Part VI makes several recommendations for addressing novel expert
evidence in civil rights cases.
I. In the Beginning, Brown v. Board of
Education
The other significant point in this case is that one
witness, Dr. Kenneth Clark, examined the appellants in this very
case and found that they were injured as a result of this
segregation.44 . . . .[I]n this case, we have the positive
testimony from Dr.Clark that the humiliation that these children
have been going through is the type of injury to the minds that
will be permanent as long as they are in segregated schools, not
theoretical injury, but actual injury.45
In the consolidated cases known as Brown v. Board of
Education,46 federal civil rights litigation came of age.
The case, which heralded great change in constitutional law,
public schools, and the fabric of society,47 also
introduced the civil rights field to the debate regarding the use
of novel forms of scientific proof as evidence.
At trial in Brown's consolidated case Briggs v.
Elliott,48 the National Association for the Advancement
of Colored People (NAACP) presented dramatic testimony by
Professor Kenneth Clark of the City College of New York.49 Professor
Clark performed innovative psychological tests utilizing dolls to
identify harms inflicted on the plaintiff children due to
segregation.50 Professor Clark described the tests and his
conclusion in response to questioning by Robert Carter of the
NAACP:A. I made these tests on Thursday and Friday
of this past week at your request, and I presented it to children
in the Scott's Branch Elementary school, concentrating
particularly on the elementary group. I used these methods which
I told you about--the Negro and White dolls--which were identical
in every respect save skin color. And, I presented them with a
sheet of paper on which there were these drawings of dolls, and I
asked them to show me the doll--May I read from these
notes?
JUDGE WARING: You may refresh your recollection.
THE WITNESS: Thank you. I presented these dolls to them and
I asked them the following questions in the following order:
"Show me the doll that you like best or that you'd like
to play with," "Show me the doll that is the 'nice' doll," "Show
me the doll that looks 'bad'," and then the following questions
also: "Give me the doll that looks like a white child,"
"Give me the doll that looks like a colored child,"
"Give me the doll that looks like a Negro child," and
"Give me the doll that looks like you."
By Mr. Carter:
Q. "Like you?"
A. "Like you." That was the final question, and you can see
why. I wanted to get the child's free expression of his opinions
and feelings before I had him identified with one of these two
dolls. I found that of the children between the ages of six and
nine whom I tested, which were a total of sixteen in number, that
ten of those children chose the white doll as their preference;
the doll which they liked best. Ten of them also considered the
white doll a "Nice" doll. And, I think you have to keep in mind
that these two dolls are absolutely identical in every respect
except skin color. Eleven of these sixteen children chose the
brown doll as the doll which looked "bad." This is consistent
with previous results which we have obtained testing over three
hundred children, and we interpret it to mean that the Negro
child accepts as early as six, seven or eight the negative
stereotypes about his own group. . . .
Q. Well, as a result of your tests, what conclusions have
you reached, Mr. Clark, with respect to the infant plaintiffs
involved in this case?
A. The conclusion which I was forced to reach was that
these children in Clarendon County, like other human beings who
are subjected to an obviously inferior status in the society in
which they live, have been definitely harmed in the development
of their personalities; that the signs of instability in their
personalities are clear, and I think that every psychologist
would accept and interpret these signs as such.
Q. Is that the type of injury which in your opinion would be
enduring or lasting?
A. I think it is the kind of injury which would be as
enduring or lasting as the situation endured, changing only in
its form and in the way it manifests itself.
MR. CARTER: Thank you. Your witness.51
Professor Clark's testimony, while founded on scientific
principle, carried great emotional power, and therefore caused
vigorous debate among the litigants and scholars as to its
import.52
NAACP counsel Thurgood Marshall, arguing on behalf of plaintiff
schoolchildren, asserted the broadest inference that could be
drawn from results of these tests: they proved actual harm done
by segregated schools.53 Thus, minority schools violated the
Fourteenth Amendment54 because they could not satisfy the
separate but equal standard announced by the Court in Plessy
v. Ferguson.55 Other NAACP lawyers, like many civil rights
practitioners who would follow in their footsteps, struggled with
the meaning of the novel scientific evidence that they were
attempting to develop. One historian subsequently reported that
Professor Clark's tests using the dolls were "the
source of considerable derision" among plaintiffs'
attorneys.56
William Coleman, a former clerk for Supreme Court Justice Felix
Frankfurter, acknowledged, "Of all the debunkers, I was the
most debunking. . . . I thought it was a joke."57 Professor
Clark, who also served as principal advisor on the expert
testimony for the school desegregation cases,58 was well
aware of the controversy. He recalled:
Thurgood
[Marshall] kept his options open. He played the role of
conductor beautifully. It was clear that Bob Carter was the most
persistent, consistent advocate of the involvement of the social
scientists at the trial level. Bob was way out on the limb,
pretty much by himself. Most of the other lawyers felt this
approach was, at best, a luxury and irrelevant. Thurgood
Marshall didn't tip his hand, except that he did let Bob
and me go ahead with the dolls.59
John W. Davis argued on behalf of the defendant school
officials.60
Davis chose to attempt to undermine the doll tests' stature as
scientific evidence by invoking a sarcastic style of argument.
He pointed out that Professor Clark purported "to speak as an
expert and informed investigator."61 From an
"intensive investigation" and "thoroughly scientific test,"
Professor Clark reached the "sound conclusion" that the
plaintiffs suffered harm in their development.62 Calling the
result "sad," Davis declaimed that the court was "invited to
accept it as a scientific conclusion."63 In
concluding, however, Davis attempted to turn Professor Clark's
published research64 in the defendant’s favor by pointing out
that a greater percentage of black children in northern schools
preferred the white doll, thought the white doll was nice, and
thought the black doll was bad.65 He declared,
"Now these latter scientific tests were conducted in
nonsegregating states, and with those results compared, what
becomes of the blasting influence of segregation to which Dr.
Clark so eloquently testifies."66
The Court ordered reargument of the cases67 and did not
issue its opinion until May 17, 1954.68 Holding that
racial segregation of children in public schools was a per se
violation of the Fourteenth Amendment, the Court found that
segregation "generates a feeling of inferiority as to their
status in the community that may affect the childrens' hearts
and minds in a way unlikely ever to be undone."69 Noting the
consistent findings in the Kansas70 and
Delaware71
decisions that segregated schools injured the plaintiffs
and denied them equal educational opportunities,72 the Court
concluded that "[w]hatever may have been the extent of
psychological knowledge atthe time of Plessy v. Ferguson,
this finding is amply supported by modern authority."73
The "modern authority" cited by the Court suggested the Justices'
ambivalence regarding the evidence of Professor Clark. While the
Court lists Professor Clark first among the sources, the
reference is to a monologue summarizing his research, including
his early doll tests, which he delivered at the Midcentury White
House Conference on Children and Youth in 1950.74 The Court,
however, makes no mention of his testimony regarding the testing
of the Briggs plaintiffs, citing only other studies and
books.75
Although the Court was clearly persuaded that "[s]eparate
educationalfacilities are inherently unequal,"76 its opinion
relies primarily on this broad principle of equality rather than
the novel scientific evidence introduced by the NAACP on behalf
of the plaintiffs in Briggs.77
Notwithstanding the Court's omission of any explicit assessment
of the reliability of Professor Clark's testimony as scientific
evidence of harm from segregated schools, commentators debated
the validity of Professor Clark's methodology and conclusions for
many years after the Brown arguments. A student note
published after the first round of oral arguments opined that the
doll test results could not be traced "with certainty" to school
segregation because a NorthSouth breakdown of the results did not
establish any statistically significant difference.78 Moreover,
analysis of Professor Clark’s data by age indicated that the
children were already aware of race and the values attached to it
by the time they entered school.79 The note
stated that psychologists "had not yet gone far enough" to
provide the necessary support for a favorable ruling under the
separate but equal doctrine.80
Legal scholar Edmond Cahn asserted additional criticisms.81
Specifically, Cahn claimed that Professor Clark offered no proof
of the adequacy of his sample, no standards for the
interpretation of responses, no testimony that the test purported
to demonstrate the effects of school segregation, no inquiry to
address habituation with dolls, and no control tests of white
children.82
Cahn cautioned that the use of technical language should not
convert armchair psychology into science and called for the
utmost rigor in assessing evidence drawn from social psychology,
a discipline which was then in its formative stages.83 Other
critics suggested that Professor Clark did not take the
test results seriously; otherwise he would have testified that
desegregation was harmful.84 The critics faulted the absence of control
tests, which might have indicated that the results were
explainable by the symbolism associated with the colors.85
Professor Clark concluded the debate with a reply published at
the close of the decade.86 He wrote that while social scientists had
been studying the effects of prejudice and segregation for about
fifteen years at the time of Brown, he and others had
advised counsel for the plaintiffs that it was not possible,
based on the then available studies, to present evidence that
public school segregation, in itself, damaged the personalities
of the plaintiffs.87 The difficulty, according to Professor Clark,
was that segregation had not been isolated as a "variable from
the total social complexity of racial prejudice, discrimination,
and segregation."88 Nevertheless, Professor Clark's
work supported the broad inference that the plaintiffs were
harmed as a result of racial prejudice, which was visibly
manifested in school segregation.
Brown pioneered both the use of novel scientific evidence
in federal civil rights litigation and exemplified the
uncertainty surrounding the use of novel expert evidence. Novel
scientific evidence often addresses issues at the frontiers of
knowledge. These issues may pose difficulties even for the
experts. The efforts of counsel and triers of fact to grapple
with such issues are sometimes halting at best and incompetent at
worst.89
II. EVIDENTIARY STANDARD FOR RELIABILITY OF
NOVEL EXPERT PROOF
Since the early part of this century, the federal courts have
attempted to limit the uncertainty surrounding novel scientific
evidence by establishing an evidentiary standard of reliability
for scientific proof.90 Frye v. United States,91 decided in
1923, provided the standard that governed the introduction of
expert evidence for more than half a century.92 The courts
have also embraced procedures, including various forms of
discovery, which provide the parties and the courts with greater
opportunities to test the reliability of novel expert
testimony.93
The standard of reliability for expert testimony and the
applicable procedures in federal courts have, in recent years,
undergone significant change.
A. Frye v. United States
As Judge Learned Hand observed at the beginning of this
century, expert evidence must be reliable in order to have some
"possible weight" on an issue and be admitted for consideration
by a trier of fact.94 Absent reliability, the evidence would not be
relevant to the inquiry.95 In Frye, the Court of Appeals for the
District of Columbia considered an appeal from a trial court's
refusal to admit the resultsof a test based on systolic blood
pressure, offered to prove the truthfulness of a defendant in a
murder prosecution.96 In an oft-quoted passage, the court crafted a
standard to determine whether scientific evidence was
sufficiently reliable to warrant consideration by a trier of
fact:
Just when a scientific principle or
discovery crosses the line between the experimental and
demonstrable stages is difficult to define. Somewhere in this
twilight zone the evidential forces of the principle must be
recognized, and while courts will go a long way in admitting
expert testimony deduced from a well-recognized scientific
principle of discovery, the thing from which the deduction is
made must be sufficiently established to have gained general
acceptance in the particular field in which it belongs.97
Frye contemplated two stages for acceptance of new
science. First, the scientific community develops a theory and
determines its reliability using scientific method.98 This stage
required experimentation with the new science’s methodology
and publication of the results for scrutiny and approval by the
scientific community.99 Second, once the new science became
"demonstrable," based on acceptance in the scientific community,
the court could permit its use as evidence in the courtroom.100 Without
explanation, the court of appeals chose "general acceptance" in
the relevant scientific community as the standard for governing
the admission of novel scientific evidence.101
Under Frye, the party proffering novel scientific evidence
must show general acceptance by offering scientific publications,
judicial decisions, evidence of practical use, or testimony by
scientists on their peers' position regarding the evidence in
question.102 Many courts, faced with determining the
admissibility of a wide array of scientific evidence, favored the
Frye standard.103 Often, new scientific evidence failed to
survive this demanding standard. For example, McCormick on
Evidence reports:
Polygraphy, graphology,
hypnotic and drug induced testimony, voice stress analysis, voice
spectrograms, ion microprobe mass spectroscopy, infrared sensing
of aircraft, retesting of breath samples for alcohol content,
psychological profiles of battered women, and child abusers, post
traumatic stress disorder as indicating rape, astronomical
calculations, and blood group typing, all have fallen prey to
[Frye;s] influence.104
Many rationales have been offered to support the use of the
Frye standard as a means of excluding evidence. The
justifications included: that the standard guaranteed a minimum
number of knowledgeable experts; that it promoted uniformity of
decisions; that it eliminated the need for time consuming
hearings on admissibility; and, most importantly, that it assured
a method by which those best qualified to assess the validity of
scientific evidence would effectively determine its
admissibility.105
The general acceptance test of Frye became the "dominant
standard for determining the admissibility of novel scientific
evidence at trial."106 Indeed, Professor Clark's testimony in
Briggs that the doll tests were "generally accepted as
indications of the child's sensitivity to race as a problem" was
calculated to satisfy Frye.107
Nonetheless, as Justice Blackmun noted in Daubert, the
merits and application of Frye were extensively debated by
commentators.108 Professor McCormick was one of the primary
critics of Frye prior to the adoption of the Federal Rules
of Evidence. In 1972, he wrote:
"General
scientific acceptance" is a proper condition for taking judicial
notice of scientific facts, but not a criterion for the
admissibility of scientific evidence. Any relevant conclusions
which are supported by a qualified expert witness should be
received unless there are other reasons for exclusion.
Particularly, probative value may be overborne by the familiar
dangers of prejudicing or misleading the jury . . . . If the
courts used this approach, instead of repeating a supposed
requirement of "general acceptance" not elsewhere imposed, they
would arrive at a practical way of utilizing the results of
scientific advances.109
B. Federal Rule of Evidence
702
The Federal Rules of Evidence, effective July 1, 1975,110 provided
the first modern and uniform set of evidence rules for the trial
of civil and criminal cases in the federal courts.111 Rule 702,
which governs the admission of expert testimony, does so in terms
that do not expressly address reliability:
If
scientific, technical, or other specialized knowledge will assist
the trier of fact 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.112
The Advisory Committee on Evidence, appointed by the Supreme
Court, formulated the language which Congress adopted as Rule
702.113
Rule 702 and the accompanying Advisory Committee Note echo
Professor McCormick's criticism of Frye. Reliability
should depend on relevance rather than the general acceptance of
scientific evidence.114 Rule 702 incorporates a relevancy
requirement by permitting the introduction of scientific evidence
which "will assist the trier of fact to understand the evidence
or to determine a fact in issue."115
Surprisingly, the Advisory Committee Note made no mention of
Frye.116 Instead, the Committee quoted
Professor Mason Ladd:
There is no more certain
test for determining when experts may be used than the common
sense inquiry whether the untrained layman would be qualified to
determine intelligently and to the best possible degree the
particular issue without enlightenment fromthose having a
specialized understanding of the subject involved in the
dispute.117
Thus, Rule 702 contemplated the admission of expert testimony
that was relevant in the sense that such testimony would
facilitate an understanding of scientific, technical, or other
specialized facts to determine an issue.118
Nonetheless, when called on to apply Rule 702, the majority of
federal courts continued to utilize Frye. The courts were
understandably reluctant to accept the sub silentio
overruling of a precedent of Frye's stature, and
often incorporated the general acceptance standard into the
relevance determination under Rule 702.119 A
number of courts have gradually begun to abandon the general
acceptance standard.120 In 1975, the Fourth Circuit affirmed the
admission of a voice spectrogram analysis of telephoned bomb
threats.121
The court found Professor McCormick's critique of Frye
persuasive:
Unless an exaggerated popular opinion
of the accuracy of a particular technique makes its use
prejudicial or likely to mislead the jury, it is better to admit
relevant scientific evidence in the same manner as other expert
testimony and allow its weight to be attacked by
cross-examination and refutation.122
This decision required only that scientific evidence be supported
by a "demonstrable, objective procedure" rather than general
acceptance.123 Three years later, the Second Circuit
approved the admission of similar evidence in a prosecution on
narcotics charges.124 The considerations governing admissibility,
the court wrote, were the "probativeness, materiality, and
reliability of the evidence."125 In
addition, the court of appeals directed the district court to
consider whether the evidence had "any tendency to mislead,
prejudice, or confuse the jury."126
In 1985, the Third Circuit decided United States v.
Downing,127 the most significant precursor to
Daubert. In Downing, the court considered the
admissibility of expert testimony concerning the reliability of
eyewitness identification.128 The court concluded that the language and
spirit of the Federal Rules of Evidence, in addition to the
experience of the courts in attempting to apply Frye,
suggested that an approach more flexible than the general
acceptance test for the admissibility of novel scientific
evidence was appropriate.129 Downing instructed the district
courts to undertake a preliminary inquiry as to the soundness of
the theory or technique on which proffered scientific evidence
was based.130 This inquiry was to include consideration of
the risk that the jury would be overwhelmed, confused or misled
and assessment of the materiality of the evidence to the issue in
dispute.131
The Third Circuit envisioned a multi-factored analysis of the
reliability of the evidence.132 The court permitted, but did not require,
the identification of a relevant scientific community and a
determination of the degree of acceptance within that
community.133 In language reminiscent of Frye, the
court suggested that in many cases, the general acceptance factor
was likely to be decisive.134 Additional factors that district courts
could consider included the novelty of the technique and its
relationship to established modes of scientific analysis, the
existence of specialized literature dealing with the technique,
the likelihood that the scientific basis of the new technique has
been exposed to critical scientific scrutiny, the qualifications
and professional stature of the expert witness, and the potential
and actual non-judicial uses of the scientific technique.135
According to Downing, district courts should also focus on
the risk of error, both the frequency with which the method leads
to erroneous results and the type of error generated by the
technique.136 Finally, the district courts should
consider whether the expert testimony had been offered in earlier
cases to support or dispute the merits of a particular procedure.
137 The
Downing opinion noted that "other factors could be added
to the list."138 The Third Circuit's articulation of a clear
alternative to Frye set the stage for the Supreme Court's
resolution in Daubert of the conflict among the circuits
over the appropriate standard of reliability for scientific
evidence under Rule 702.
C. Assessment of Reliability of
Scientific Evidence in Civil Rights Cases Decided Prior to
Daubert
The civil rights cases decided after the adoption of Rule
702, but prior to Daubert, reflected the different
approaches of the courts described in the preceding section.
Occasionally, courts would restate and apply the Frye
general acceptance test.139 Some courts adopted a hybrid approach that
incorporated the general acceptance standard into the
determination of relevance under Federal Rule of Evidence 702.140 Still
other courts jettisoned Frye and attempted to assess for
themselves the reliability of scientific evidence.141
Dang Vang v. Vang Xiong X. Toyed142
illustrates the first approach. Female Hmong refugees from Laos
brought an action pursuant to 42 U.S.C. õ 1983143 against an
employee of a Washington State Employment Security office who
allegedly raped them when they contacted him about obtaining
employment.144 The district court allowed extensive
anthropological testimony, including a general explanation of
Hmong culture, the longterm reliance of the Hmong on governmental
agencies for support, and the role of women in that culture.145 The court
found such testimony to be both relevant and necessary because it
assisted the jury in understanding certain behavior of parties
that might otherwise be confusing, such as the plaintiffs'
continued contact with the defendant after a rape.146 The court
excluded opinion testimony regarding the specifics of the case,
such as whether there was a rape and why these particular
plaintiffs did not report the rape.147 On
appeal, the defendant maintained that all of the expert testimony
should have been excluded because it failed to satisfy the
requirements of Frye.148 The Ninth Circuit did not question
appellant's citation to Frye. Instead, the court rejected
the argument as inapposite because the testimony below derived
from anthropological study of the Hmong, rather than a novel
scientific theory, and therefore should not be scrutinized under
Frye.149
United States v. Kozminski150
exemplifies the hybrid approach, where the court incorporates the
Frye standard into the relevance determination under Rule
702.151
Kozminski was an appeal from a criminal conviction for
violation of civil rights.152 Appellants, a dairy farmer and his wife,
were convicted of willfully holding two retarded farm workers in
involuntary servitude153 and of conspiring to deprive the workers of
their constitutional right to be free from involuntary
servitude154 as guaranteed by the Thirteenth Amendment.155 The
couple's son was also convicted on the conspiracy charge.156 The
Kozminskis argued on appeal that the district court erred in
admitting expert psychological testimony to show that the two
victims were detained against their will.157 A
psychologist testified that the victims' limited mental ability,
combined with the psychological pressures exerted on them by the
conditions at the dairy farm, created an "involuntary conversion"
to complete dependency.158 The Sixth Circuit, sitting en banc, held
that the district court improperly admitted this evidence.159 The court
explained:
For expert testimony to be admissible
under Rule 702, a fourpart test must be met: (1) a qualified
expert; (2) testifying on a proper subject; (3) in conformity to
a generally accepted explanatory theory; (4) the probative value
of which outweighs any prejudicial effect.160
According to the Sixth Circuit, the only arguably relevant theory
shown to have general acceptance by the trial testimony was the
"captivity syndrome" associated with the brainwashing of
prisoners of war.161 The appellate court was not satisfied that
any established theory existed to support a conclusion that the
Kozminskis' actions resulted in complete dependency on the part
of the victims: "As bad as conditions on the Kozminski's dairy
farm are alleged to be, they fall short of those found in a
Chinese prison camp. Accordingly, captivity syndrome is
inapplicable as a matter of law given the facts of this case."162 Because
Frye’s requirement of a generally accepted
explanatory theory was not met, the court held the testimony
inadmissible under Rule 702.163
Spencer v. General Electric Co.164 typifies
the third approach mentioned above, where the court attempts its
own assessment of the scientific reliability of proffered expert
testimony.165 Spencer involved a Title VII sexual
harassment claim and state tort claims against a former
supervisor and employer brought by an employee claiming to be a
victim of rape and other sexual misconduct.166 At trial,
the plaintiff attempted to introduce the testimony of a forensic
psychiatrist that plaintiff suffered from Post Traumatic Stress
Disorder (PTSD) as proof that the rape actually occurred.167
Ultimately, the district court held the testimony inadmissible
for this purpose.168 Noting that PTSD is a condition recognized
in psychiatry as the emotional reaction to traumatic events, such
as rape, the court cited the American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders for the
proposition that PTSD may be caused by a variety of traumatic
events outside the range of common experiences, such as military
combat, bombing, torture, airplane crashes, or rape.169 In the
case of rape, the condition is sometimes labeled Rape Trauma
Syndrome (RTS).170 The court concluded, however, that evidence
of PTSD or RTS was not a scientifically reliable means of proving
that a rape occurred:
Evidence of PTSD occasioned
by rape . . . is not a scientifically reliable means of proving
that a rape occurred. PTSD is simply a diagnostic category
created by psychiatrists; it is a human construct, an artificial
classification of certain behavioral patterns. RTS was developed
by rape counselors as a therapeutic tool to help identify,
predict, and treat emotional problems experienced by the
counselor’s clients or patients. It was not developed or
devised as a tool for ferreting out the truth in cases where it
is hotly disputed whether the rape occurred. "Unlike
fingerprints, blood tests, and lie detector tests, RTS was not
devised to determine the 'truth' or accuracy of a particular past
event--i.e., whether, in fact, a rape in the legal sense
occurred." . . . "The scientific evaluation of rape trauma
syndrome has not reached a level of reliability that surpasses
the quality of common sense evaluation present in jury
deliberations."171
While the district court made its own determination of
the reliability of the proffered evidence, its opinion did not
completely ignore Frye. The court questioned several
authorities which had admitted PTSD or RTS evidence under the
Frye test based on findings that the disorders were
"generally accepted to be a common reaction to sexual
assault."172 The court opined that the relevant issue was
not whether rape victims may display certain symptoms, but
whether diagnosis of PTSD or RTS provided scientifically reliable
proof that an alleged victim was raped.173 Thus, the
court believed that, under Frye, the evidence should not
be admitted for this purpose.174 After
trial, the district court held that the employee failed to prove
by a preponderance of evidence that the alleged sexual assaults
and rape took place.175 The evidence issue was not raised on appeal,
and the Fourth Circuit affirmed.176
The court's exclusion of the psychiatric evidence of PTSD to
corroborate the plaintiff's testimony that she was raped, on
grounds that such evidence was irrelevant, seems questionable.
The diagnosis of the plaintiff with a disorder that experts
recognize as affecting persons who have suffered significant
trauma subsequent to the date of the alleged incident was
relevant because it tended to support her testimony that she had
indeed been raped. Such evidence is relevant even if the
diagnosis standing alone did not show the cause of the
condition.177 The court's evidentiary ruling in
Spencer has not been cited by any other federal court.
Nonetheless, the decision illustrates the types of issues which a
court following the third line of authority must address in an
effort to determine for itself the reliability of scientific
proof in a civil rights action.
III. DAUBERT v. MERRELL DOW
PHARMACEUTICALS, INC.--DISTRICT COURTS AS
GATEKEEPERS
The conflicting lines of authority, whether to use
Frye, Federal Rule of Evidence 702, or a hybrid of the
two, remained unreconciled until the Supreme Court granted
review in Daubert v. Merrell Dow Pharmaceuticals, Inc.178
Interestingly, significant impetus for review of the case may
have come from within the judicial rulemaking process. In June
1991, the Advisory Committee on Civil Rules of the Judicial
Conference of the United States proposed amendments to both the
Federal Rules of Civil Procedure and the Federal Rules of
Evidence.179 The amendments included a revised Rule 702,
which would have allowed the admission of expert testimony only
if it was "reasonably reliable" and would "substantially assist
the trier of fact to understand the evidence or to determine a
fact in issue."180 TheCommittee Notes suggested that this
revision was intended to limit the use, while increasing the
utility and reliability, of expert testimony.181 The
proposal contemplated that the courts should "reject testimony
that is based upon premises lacking any significant support and
acceptance within the scientific community."182 The
Committee summary further indicated an intent to address
unwarranted increases in litigation costs resulting from the use
of unreliable expert testimony.183
The Supreme Court's Order of April 22, 1993, adopted many of the
civil rule amendments proposed by the Committee.184 These
amendments were part of the comprehensive changes which became
effective December 1, 1993.185 The Court, however, granted certiorari in
Daubert on October 13, 1992,186 and the
proposed modification of Rule 702 did not emerge from the
rulemaking process. Instead, the Supreme Court addressed the
Advisory Committee's concerns in Daubert.187
Daubert is now the best known of the many products
liability cases involving the anti-nausea drug Bendectin.188 During
the 1980s, approximately 1700 actions were brought alleging that
the drug caused birth defects.189
Plaintiffs Jason Daubert and Eric Schuller were minor
children born with serious birth defects.190 They sued
Merrell Dow alleging that Bendectin caused their injuries.191
Merrell Dow moved for summary judgment in the district court,
arguing that Bendectin did not cause birth defects in humans and
that petitioners could offer no admissible evidence to support
theirclaim.192 Merrell Dow supported its motion with an
affidavit of a physician whom Justice Blackmun, writing for the
Court, described as a "well-credentialed expert on the risks of
exposure to various chemical substances."193 The
affidavit stated that none of the more than thirty published
epidemiological studies involving over 130,000 patients had found
Bendectin to be capable of causing malformations in fetuses and
concluded that Bendectin was not a risk factor.194
The plaintiffs did not dispute the description of the published
research, but rather presented the testimony of eight experts
whose credentials the court noted were also "impressive."195 The
experts, testifying that Bendectin could cause birth defects,
based their testimony on test tube and live animal studies
suggesting causation, analyses of pharmacological similarities
between Bendectin and other substances known to cause birth
defects, and reanalyses of the published studies on Bendectin.196
The district court examined plaintiffs' evidence under the
Frye standard,197 which the Ninth Circuit had reaffirmed in
United States v. Kilgus.198 The
district court recognized the extensive body of generally
accepted epidemiological data available on Bendectin.199
Consequently, it held that plaintiffs' test tube, live animal,
and pharmacological studies, which were not based on
epidemiological data, could not be admitted to prove
causation.200 The district court further held that
plaintiffs' reanalyses of the published epidemiological
studies were inadmissible because plaintiffs' experts had
not published these studies and their peers had not reviewed
them.201
Under the district court's analysis of the evidence, the
plaintiffs offered no proof that Bendectin caused their birth
defectsand therefore the district court granted Merrell Dow's
motion for summary judgment.202
The Court of Appeals for the Ninth Circuit affirmed.203 The
court discussed the Frye rule, that expert opinion based
on a scientific technique is inadmissible unless the technique is
generally accepted as reliable by the relevant scientific
community.204 Evidence based on techniques that diverged
significantly from techniques accepted by recognized authorities
in the field, the court reasoned, could not meet the standard of
general acceptance.205 The medical field generally accepted
epidemiological studies to show causation of birth defects, and
therefore the court did not permit other evidence of causation to
be admitted.206 Thus, the Ninth Circuit concluded that the
district court properly excluded plaintiffs' test tube, live
animal, and pharmacological studies.207 In
addition, the district court correctly excluded plaintiffs'
evidence based on reanalyses of epidemiological data.208 While the
medical community utilized reanalyses, such studies were
generally accepted only after they were subjected to review by
others in the field.209 The reanalyses in question had been prepared
for the Daubert litigation and had not been reviewed by
the scientific community.210 According to the Ninth Circuit, it did not
suffice that scientific proof met some of the requirements of the
scientific community; the evidence had to meet all of the
essential requirements.211 Accordingly, the court of appeals upheld the
exclusion of the reanalyses.212
The Supreme Court granted review in Daubert to resolve the
"sharp divisions regarding the proper standard for admission of
expert testimony."213 The primary issue presented was whether the
adoption of Federal Rule of Evidence 702 eliminated the general
acceptance test of Frye for the admission of scientific
evidence.214 Secondarily, the Court was asked to consider
whether, if Frye remained valid,Rule 702 required that
expert scientific testimony undergo peer review to be admissible
in evidence.215
The Justices unanimously held that the adoption of the Federal
Rules of Evidence superseded Frye.216
Interpreting the legislatively-approved rules as it
would any statute,217 the Court found that nothing in the text of
Rule 702 required general acceptance as a foundation for the
admission of scientific evidence, and there was no clear
indication that the drafters intended the new rules to
incorporate this standard.218 The Court construed the drafters' omission
of any reference to the Frye test in either the text or
the Advisory Committee Note as indicating that Frye was no
longer good law.219 Moreover, in the Court's view, this rigid
test was incompatible with the "liberal thrust" of the
Federal Rules of Evidence and henceforth should no longer be
applied in federal trials.220
In place of Frye, the majority articulated a two-part
test, directing that "the trial judge must ensure that any and
all scientific testimony or evidence admitted is not only
relevant, but reliable."221 According to the Court, the primary source
of this duty is the language of Rule 702, which first requires
that the expert testimony convey "scientific knowledge."222 This
characterization indicates that purported scientific testimony
must be based on "scientific method or procedure" and comprise
more than "subjective belief or unsupported speculation."223
Scientific testimony need not be certain, but must meet a
standard of evidentiary reliability or trustworthiness.224 Rule702's
use of the term "knowledge" required that the testimony be
supported by appropriate validation consisting of "good grounds
based on what is known."225 In addition, the majority explained, Rule
702 requires that there be a sufficient "fit" between the
scientific testimony and the facts of the case so that the
testimony will assist the trier in finding the facts.226
Displaying uncharacteristic whimsy, Justice Blackmun explained
that absent an acceptable showing of such a nexus, evidence on
the phases of the moon indicating that it was full on a certain
night could not be received to show that a particular individual
was behaving irrationally on that evening.227 He
cautioned, however, that this relevance determination will not
always present an obvious question, as the validity of scientific
evidence can vary depending on the purpose for which it is
used.228
A court exercising its gatekeeping function regarding a proffer
of expert scientific evidence229 must find
that the proponent has established, by a preponderance of the
evidence, the foundation facts.230 In making
this preliminary determination, however, the court is not bound
by the evidentiary rules.231 The Court identified some of the factors
which bear on the determination as to whether the evidence is
scientific, but did not attempt to provide a definitive
checklist.232
Ordinarily, a key question is whether the proffered theory or
technique can be and has been tested.233 As the
Court noted, "'scientific methodology today is based on
generating hypotheses and testing them to see if they can be
falsified.'"234 A second consideration is whether the theory
or technique has been subjected to peer review and publication.235 Although
publication is not necessary for admissibility, and in some
instances may not ensure reliability, exposure to the review
process supports admission because it increases the likelihood
that the scientific community will detect any error that
exists.236
For particular techniques, the district court should consider the
known or potential rate of error and any professional standards
that may be applicable.237 Lastly, the court may still consider the
general acceptance of a technique by explicitly identifying a
relevant scientific community and expressly determining the
degree of acceptance in that community.238
"Widespread acceptance can be an important factor" in admitting
evidence, and the district court may be properly skeptical of a
known technique that has garnered only minimal support within the
community.239
The Daubert opinion emphasized that the district
court should be flexible in conducting its inquiry and should
focus on the principles and methodology that underlie the
evidence, not on the conclusions they generate.240 The
Court acknowledged its reliance on Downing and, in an
obvious invitation to the lower courts to expand on the factors
enumerated in the majority opinion, suggested that the approaches
offered by the Third Circuit and a number of other sources on the
reliability determination "may well have merit."241 The
sources cited included a standard treatise242 and
contributions by Professors Mark McCormick243 and
Margaret Berger.244
The majority cautioned that a district court considering a
proffer must be mindful of other rules of evidence.245 Expert
evidence based on otherwise inadmissible hearsay may be admitted
pursuant to Rule 703 only if the underlying facts or data are of
a type "reasonably relied upon by experts in the field in
generating inferences or opinions upon the subject."246 Rule 706
authorizes the court to appoint an expert to assist with the
case.247
In addition, the court may exclude evidence under Rule 403 "if
its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury."248
The majority noted that this provision allows judges greater
control over experts than other witnesses, as "'expert evidence
can be both powerful and quite misleading because of the
difficulty in evaluating it.'"249
Daubert concluded by responding to some of the policy
concerns expressed by the opposing parties and numerous
amici in the case.250 The Court stated that it did not expect that
the abandonment of Frye would result in a free-for-all in
which juries would beconfounded by "pseudoscientific"
offerings.251 Merrell Dow was "overly pessimistic" about
the ability of the jury to address scientific evidence, and the
efficacy of the adversary system.252 At trial,
vigorous cross-examination, introduction of opposing evidence,
and careful jury instructions as to the burden of proof
adequately address the potential problems presented by "shaky but
admissible evidence."253 Moreover, if a court believes that the
evidence is insufficient to support a favorable finding by a
reasonable juror, the court may either direct a judgment at trial
or grant summary judgment.254
The Daubert majority was satisfied that these devices
adequately insure the integrity of the truth-seeking process
where scientific evidence is admitted in a case. Unlike
scientific inquiry, legal fact finding is generally not subject
to revision as additional data becomes available, but rather must
settle issues within the constraints of a dispute resolution
procedure.255 While the gatekeeping role played by a judge
may occasionally result in the exclusion of valuable insights,
the rules of evidence sanction this balance in order to resolve
issues in the context of the legal process.256
Justice Stevens joined Chief Justice Rehnquist in partial
dissent.257
While agreeing that Frye did not survive the enactment of
the Federal Rules of Evidence,258 these
Justices disassociated themselves from the Court's effort to
sketch the contours of the new test, calling the Court's
observations "not only general, but vague and abstract."259 They
expressed concern that the scientific subject matter of the
briefs was outside the expertise of the judiciary.260 In
particular, they questioned the competence of federal judges to
decide in the first instance whether a scientific theory can be
and has been tested.261 While not disputing the appropriateness of a
gatekeeping function, they cautioned that amateur science was not
within the jurisdiction of the courts.262
While courts and commentators have debated at some length whether
Daubert will affect the admissibility of various types
ofscientific evidence,263 Daubert did not contemplate a
revolutionary change in the practice of the federal courts. In
particular, the Court retained Frye's general acceptance
standard as an "important factor" bearing on admissibility.264 Under the
Court's formulation of the standard for Rule 702, district courts
are free to retain all prior jurisprudence on the reliability of
various scientific methods.265 At the same time, Daubert's emphasis
that the inquiry it envisioned was to be "a flexible one"266 is
calculated to allow the trial court to scrutinize the reliability
of techniques that it views with skepticism, even when proponents
have shown general acceptance. Daubert, however, also
affords the district court the freedom to consider new methods of
proof for which no such claim of acceptance can yet be made.
IV. FACTORS AFFECTING GATEKEEPING IN
FEDERAL CIVIL RIGHTS CASES
In the civil rights context, the most significant aspect of
the Daubert decision is the Supreme Court's directive
that district court judges play an activist role as gatekeepers
when a party offers expert evidence.267 The
Supreme Court's reading of the Federal Rules of Evidence,
especially Rule 702, as imposing on a trial judge a duty to
"ensure" that expert testimony is scientifically reliable, will
substantially affect civil rights litigation.268 The
remainder of this Article will address the post-Daubert
development of evidentiary standards and practice with respect to
novel expert evidence in federal civil rights cases.
A number of factors will impact a court's role as gatekeeper
under Daubert. These factors include the scope of the
court's discretion withrespect to the admission of expert
evidence,269 the court's philosophy with respect to this
evidence,270 and the duty of the court to exercise its
discretion.271 Moreover, the procedural context and
type of expert evidence should play a significant role in the
court's exercise of its discretion. In civil rights
actions, the courts should favor the admission of novel expert
evidence to facilitate the resolution on the merits of issues
involving basic personal rights and social justice.272
A. The Scope of
Discretion
A district court has wide discretion in determining whether to
admit or exclude evidence, particularly expert testimony.273 An
appellate court will generally accord the district court wide
latitude in the proper exercise of discretion274 under
Daubert and will reverse its findings only if they are manifestly
erroneous or an abuse of discretion.275 For
example, in a police misconduct case, the Seventh Circuit
affirmed the exclusion of a pathologist's testimony regarding the
effects of electroshockbecause the reliability of his proffered
testimony was doubtful and the panel did not think the district
judge had abused his discretion.276 Likewise,
in another police misconduct case, the Eighth Circuit affirmed a
district court's refusal to admit the testimony of a neurologist
because the plaintiff was unable to explain how the expert's
discipline could shed light on the causation of his injury.277 The court
of appeals stated that it would reverse the ruling excluding
expert testimony "only for an abuse of discretion."278
B. Gatekeeping in Every
Case?
Daubert may require that the district court
exercise its discretion in every case. Daubert states
that "under the rules, the trial judge must ensure
that any and all scientific testimony or evidence admitted
is not only relevant, but reliable."279 Read
literally, this directive appears to require a determination by
the court as to all such evidence, even absent an objection.280 The
preface "under the rules" does not clearly indicate otherwise.
As the Court goes on to explain in the next paragraph, "[T]he
primary locus of this obligation is Rule 702, which clearly
contemplates some degree of regulation of the subjects and
theories about which an expert may testify."281 In
addition, the Court's later restatement of this duty indicates
that the district court judge is to apply the test when "[f]aced
with a proffer of expert testimony."282 While the
practice in some jurisdictions has been to proffer the
qualification of an expert for court approval before examination
of the substance of the testimony begins,283 this
practice is not required by the rules and has repeatedly met with
disapproval from at least one circuit court.284 Thus,
Daubert may find in Rule 702 a court duty to scrutinize
the relevance and reliability of all expert evidence even if the
party against whom such evidence is offered makes no objection.285 In
effect, under Daubert, the erroneous admission of expert
evidence by the district court would be plain error.286287 Given this potential for prejudice,
reviewing courts might invoke the plain error rule to address the
admission of irrelevant or unreliable expert evidence.
Therefore, Daubert may require trial courts to perform
their gatekeeping duty whenever scientific evidence is
admitted.
One district court has taken this position in an action brought
by death row inmates at California's San Quentin State Prison
to challenge execution by lethal gas as violating the Eighth
Amendment.288 Noting that neither party had challenged the
admissibility of scientific evidence regarding the pain caused by
lethal injection, the district court nonetheless considered
itself bound to scrutinize this proof under Daubert.289
Accordingly, the court analyzed the evidence and ruled sua
sponte that the expert evidence was admissible.290 Whether
the courts will consistently adopt this reading of
Daubert remains to be seen.291 If they
do, they will have an opportunity to inject their philosophy with
respect to the nature and purpose of gatekeeping into every
case.
C. Philosophy of the
Court
The gatekeeping duty articulated in Daubert plays a central
role in subsequent civil rights cases. Interestingly, the courts
have described the duty in substantially different ways.292 Many
courts simply quote the Daubert directive that courts must
ensure expert evidence is "not only relevant, but reliable."293 Some
courts characterize their duty in relatively neutral terms. For
example, in a civil rights action brought by the representative
of the estate of a motorcyclist who police killed during a
high-speed chase, the Fifth Circuit, when excluding the testimony
of an inadequately qualified accident reconstructionist, simply
cited Daubert for the proposition that "Rule 702 . . .
clearly contemplates some degree of regulation of the subjects
and theories about which an expert may testify."294 A
district court issuing a protective order against psychological
testing in an employment discrimination action observed that
Daubert has "injected the trial judge into the expert
testimony area in a more active sense than before by requiring .
. . inquiry into a number of factors bearing on reliability."295
By contrast, the Seventh Circuit, in a civil rights action
brought by the convicted murderer of two police officers who
claimed that the police obtained his confession by torture,
commented on Daubert in a way that suggests gatekeeping
involves maintaining a barrier rather than an entrance:
The elimination of formal barriers to expert
testimony has merely shifted to the trial judge the
responsibility for keeping "junk science" out of the courtroom.
It is a responsibility to be taken seriously. If the judge is
not persuaded that a socalled expert has genuine knowledge that
can be genuinely helpful to the jury, he should not let him
testify.296
In civil rights actions, the better view is that the district
court should incline toward admitting novel expert evidence.
These cases assert basic personal rights and often raise broad
social justice issues. Many of these cases implicate expressive
and associational rights at the core of the First Amendment.297 In this
context, proffered expert evidence takes on an aspect of
political speech.298 Public interest in having a jury or judge
resolve civil rights cases on the merits is strong,299 and,
accordingly, the court should exclude expert evidence only if
such evidence is clearly inadmissible.
D. Procedural Context and the Court's
Discretion
Another factor which should significantly affect the district
court's discretion in gatekeeping is the procedural context.300 Both the
parties and the courtcan potentially raise gatekeeping issues in
a wide variety of contexts, including pretrial and case
management conferences, discovery, summary judgment, trial, and
post-trial proceedings.301 A hypothetical federal suit to enjoin a city
from requiring that a fire fighter submit to HIV testing
illustrates this point. Plaintiff's claim is based on the Fourth
and Fourteenth Amendments302 which, under the relaxed standard applicable
to government searches of its employees for management purposes,
require only that the test be reasonable under all the
circumstances.303 In the hypothetical, plaintiff's counsel
learns that the city has consulted with a physician who advised
them that other means of transmitting HIV, in addition to those
currently recognized in the medical literature, exist.
Plaintiff's counsel plans to argue that a fire fighter's risk of
contracting or transmitting HIV on the job is infinitely small,
but is concerned about the potential effect of this physician's
testimony on the outcome of the case.
1.Pretrial discovery, scheduling, and
reports
The Federal Rules of Civil Procedure, particularly amendments
effective December 1, 1993,304 afford counsel and the court early
opportunities to raise issues relating to possible expert
testimony by the physician. Except in categories of cases
exempted by local rules,305 the Rules of Civil Procedure now require the
prompt issuance of a scheduling order to govern the conduct of
the litigation.306 Prior to the issuance of the order, the
parties must meet to discuss their claims and possible settlement
of the case.307 The parties must also discuss both the
conduct of discovery and the mandatory disclosure of information
without discovery requests, including disclosure of expert
testimony.308 After meeting, the parties must submit a
written report to the court for its consideration in issuing the
scheduling order.309 The court may also hold a scheduling
conference to discuss the report prior to issuing the order.310 All of
these events present opportunities to consider expert testimony
issues.
In most cases these discussions will focus on questions of
scheduling, as neither the parties nor the court are likely to
have sufficient familiarity with issues of expert proof to be
able to explore them in great detail this early in the
litigation. Nevertheless, if well prepared, counsel in the
hypothetical civil rights case will find that these procedures
afford numerous opportunities to develop issues under
Daubert. For example, while discussing the bases of their
claims and defenses at a meeting of the parties,311 counsel
may question the city's attorney regarding the physician's
theory and the relevance and reliability of any supporting
scientific proof. Such discussion might provide plaintiff's
counsel with informal discovery as to the preparedness of
opposing party to offer this evidence. This information may
offer insight regarding the level of opposing counsel's
sophistication with respect to scientific evidence and tactical
guidance as counsel plans discovery.
The report drafted by the parties may address a variety of
subjects related to expert testimony. The 1993 amendments to the
FederalRules of Civil Procedure, except as otherwise provided by
local rule312 or court order, obligate the parties to
disclose the identity of any person who may present expert
evidence at trial,313 and, with respect to each witness who is
"retained or specially employed to provide expert testimony
in the case or whose duties as an employee of the party regularly
involve giving expert testimony," to provide a written
report containing "a complete statement of all opinions to
be expressed and the basis and reasons therefor."314 Unless
the court orders otherwise, these disclosures must occur at least
ninety days prior to trial.315 The parties may propose to the court changes
in the "timing, form, or requirement" for these disclosures.316 In the
hypothetical, plaintiff's counsel may want to propose that
the court set an earlier time for the disclosure of expert
testimony and require that it include facts supporting the
admissibility of the physician's evidence.317
The report must contain the parties' views regarding
the subjects and timing of discovery, including "whether
discovery should be conducted in phases or be limited to or
focused upon particular issues"318 and "what
changes should be made on the limitations on discovery under
these rules."319 Plaintiff's counsel may request early
discovery on gatekeeping issues. The parties also may propose
modifications to the significant limitations on expert discovery
imposed by the 1993 amendments.320 While the
new rules provide for depositions of testifying experts321 and
require supplementation of both the expert's deposition testimony
and report,322 they also limit interrogatories to
twenty-five per party.323 Thus, a favored low-cost discovery tool for
plaintiffs in civil rights cases may be substantially unavailable
unless plaintiff convinces the court, prior to the issuance of
the initial scheduling order, of the need for additional
interrogatories. The rules also restrict depositions, which
comprise the most effective discovery technique, to only ten per
side.324
The rules' prohibition on depositions of experts who must
provide reports until after the report has been provided325 is also
troublesome for parties concerned with gatekeeping issues. Left
unmodified, these provisions may narrowly constrain expert
discovery. In the hypothetical civil rights case, plaintiff's
counsel may not require additional depositions, but might seek
earlier disclosure of the physician's testimony and leave to
serve additional interrogatories to prepare to depose the
physician and, ultimately, dispose of his testimony by pretrial
motion.326
Finally, the parties' report may propose orders on any subject
that a court is authorized to consider at a scheduling or
pretrial conference.327 The court hearing the hypothetical case may
be receptive to suggestions for orders that schedule mandatory
disclosures, discovery, conference dates, and motion deadlines to
allow an early disposition of gatekeeping issues with respect to
the physician's testimony.328
2.Pretrial conferences
The pretrial conference presents additional opportunities to
discuss issues under Daubert. The 1993 amendments to the
Federal Rules of Civil Procedure now provide that the court may
consider and enter appropriate orders with respect to
"limitations or restrictions on the use of testimony under
Rule 702 of the Federal Rules of Evidence" ata pretrial
conference.329 The Advisory Committee Notes indicate that
the revision was intended
to clarify that in advance of trial the court may
address the need for, and possible limitations on, the use of
expert testimony under Rule 702 of the Federal Rules of Evidence.
Even when proposed expert testimony might be admissible under the
standards of Rules 403 and 702 of the evidence rules, the court
may preclude or limit such testimony if the cost to the
litigants--which may include the cost to adversaries of securing
testimony on the same subjects by other experts--would be unduly
expensive given the needs of the case and the other evidence
available at trial.330
Such issues may, of course, arise at a pretrial conference in the
context of a discovery dispute.331
The court should exercise restraint in addressing these issues at
a pretrial conference. While a conference may occasionally be an
appropriate setting to discuss limiting expert testimony based on
cost, the conference itself is not an appropriate forum to
determine the admissibility of expert testimony under
Daubert. The admissibility of expert testimony is a
preliminary question for determination by the court under Federal
Rule of Evidence 104(a).332 Daubert requires that the proponent
of the evidence demonstrate to the court by a preponderance of
proof that the expert will testify with scientific knowledge to
assist the trier of fact in understanding or determining a fact
in issue.333 The trial court must make findings with
respect to these issues.334 Obviously, an adversary procedure, such as a
hearing on a motion rather than a conference, is required.335 Thus, in
the hypothetical civil rights case, the conference would afford
plaintiff's counsel an opportunity to discuss gatekeeping
issuesregarding the physician's testimony with the court and
establish further procedures to resolve them.336
The procedure most likely to be used for this purpose is a motion
in limine. A motion in limine is a request filed
by the opposing party for a pretrial ruling on the admissibility
of evidence.337 District courts now routinely hear this type
of motion to decide gatekeeping issues in civil rights cases.338 Assuming
discovery casts suspicion on physician's theory
that there are other means to transmit HIV is unreliable,
plaintiff's counsel is likely to file a motion in
limine to request an order prohibiting testimony as to the
theory at trial.
3. Summary judgment and judgment as a
matter of law
Occasionally, courts utilize summary judgment to address
gatekeeping issues prior to trial. 339Typically,
the courts determine whether challenged evidence is admissible in
assessing whether there is a "genuine issue as to any material
fact"340
that would require a trial.341 In the hypothetical case, this motion might
result in a determination that the physician's theory is
inadmissible, but it is unlikely to yield a summary judgment for
the plaintiff unless the city has no other evidence on the
reasonableness of the HIV tests. The district court may, of
course, decide these issues during trial,342 and in
the hypothetical case would likely do so if plaintiff's
counsel did not file a pretrial motion. Disposition of
gatekeeping issues at trial is appropriate where the development
of an adequate record requires the factual background of trial
evidence.343 In particular, a court may defer ruling on
the relevance of expert proof until a more complete record is
developed at trial.344 If potentially inadmissible expert proof is
essential to a party's case, the court, in either a jury or
bench trial, may direct the parties to present evidence with
respect to the issue early in the trial. The court can then
assess the admissibility of the expert evidence and decide at
that point whether it should enter judgment as a matter of law.345 In a
jurytrial, the court may also defer a gatekeeping determination
until a party makes a motion for judgment as a matter of law at
the conclusion of plaintiff's case.346 In a
bench trial, the court may make a gatekeeping decision upon a
motion for judgment347 or after the submission of all evidence.348
4.Post-trial motions
Post-trial motions in civil rights cases also may raise
gatekeeping issues. In a motion for new trial, a party may argue
that the district court erred in its ruling to admit or exclude
evidence.349 Parties may combine the motion for new trial
with a motion for judgment after trial in a jury case350 or a
motion to amend the judgment in a case tried to the court.351 Other
motions, which do not challenge the judgment, such as a request
for an award of attorneys' fees, may also present gatekeeping
issues.352
5. Gatekeeping, fairness, and
finality
The procedural stage at which a gatekeeping issue arises should
significantly impact the court's exercise of its discretion. As
a general rule, the court should exercise considerable restraint
early in a case. As the history of Dr. Clark's testimony in
Brown indicates, the parties may themselves develop
significant scientific evidence during the course of the
proceedings.353 Unless there are substantial countervailing
factors, such as a pending dismissal of the case354 or undue
cost,355
fairness to the parties will usually require that courts allow
the parties a reasonable opportunity to develop novel expert
evidence and opposition to such evidence at the pretrial stage of
a case.356
In addition, as Brown illustrates, the uncertainties
accompanying the use of this type of evidence warrant caution.
The court must acquire a working knowledge of the evidence to
properly determine its relevance, reliability, and, ultimately,
if the evidence is admitted, its persuasive value. Thus, a court
should generally afford the parties a great deal of latitude when
gatekeeping issues arise in conferences and discovery
disputes.
As the court considers the merits of the case, the court
necessarily engages in much closer analysis because the policy of
a "speedy and inexpensive determination of every action"358 takes on
increased significance when a judgment or post-judgment ruling
may appropriately be rendered. The court may then require that a
party, unable to make the threshold showing of the relevance and
reliability of its evidence, rest on its remaining evidence. Of
course, where the threshold showing is marginal, the court may
admit the evidence and expose it to the rigors of the adversary
process.359
E. Tailoring Gatekeeping for
Scientific, Technical, and Other Specialized
Evidence
A district court should also tailor its gatekeeping to the
category of evidence proffered. Rule 702 contemplates the
admission of "scientific, technical, or other specialized
knowledge."360 The drafters intended that this provision be
given a liberal reading:
The rule is broadly
phrased. The fields of knowledge which may be drawn upon are not
limited merely to the "scientific" and "technical" but
extend to all "specialized" knowledge. Similarly, the expert is
viewed, not in a narrow sense, but as a person qualified by
"knowledge, skill, experience, training or education." Thus
within the scope of the rule are not only experts in the
strictest sense of the word, e.g. physicians, physicists, and
architects, but also the large group sometimes called
"skilled" witnesses, such as bankers or landowners testifying to
land values.361
Scientific, technical and other types of specialized knowledge
are distinct types of evidence requiring different types of
expertise.362 Daubert explicated the nature of
these types of scientific evidence at some length.363 Technical
evidence generally deals with the practical, mechanical, and
industrial arts or the applied sciences and is derived by settled
principles from the sciences.364
For example, architecture is based ultimately on the principles
of mathematics, physics, and chemistry, but the practice of
architecture is certainly not considered to be a matter of
experimental science. The specialized knowledge category serves
as a catch-all for other evidence, including skills, which are
more subjective in nature. The proof of reliability for these
categories of evidence should likewise differ. The
Daubert factors are calculated to address reliability
problems associated with scientific evidence alone, not with
technical or other specialized evidence.365 Even with
respect to scientific evidence, the Court encouraged district
courts to explore various approaches.366 A
requirement of proof based on scientific method is unnecessary to
demonstrate the reliability of technical evidence which is based
on settled principles.367 Such a requirement is also inappropriate
for other specialized evidence that is by definition subjective
in nature. The lower courts should, therefore, adopt a flexible
approach to assessing the reliability of technical and other
specialized evidence.368 Faced with a proffer of expert evidence, a
court should, as a threshold matter, determine whether the
evidence consists of scientific, technical, or other specialized
knowledge. The court should then devise an appropriate test of
reliability. If the evidence is scientific in nature, the court
should follow Daubert. For technical evidence, the court
should determine if it is drawn from a recognized field of
knowledge.369 For other specialized evidence, the court
should assess whether it is reasonably relied on to determine
important matters in its field of application.370
The only civil rights case considering this issue to date
correctly noted that "the distinction between scientific and
nonscientific expert testimony is a critical one," and stated
that Daubert was "of limited help" in assessing the
reliability of a former sheriff's testimony regarding the effect
of failure to discipline police on their use of deadly force.371
Nevertheless, the court did not attempt to fashion an appropriate
standard to test the witness' necessarily subjective testimony
regarding management principles. Instead, the court consulted
the Daubert decision for "guidance as to how a court
should carry out its gatekeeping function," and, applying
all four of the Daubert reliability factors, held that the
district court erred in failingto exclude the evidence.372
Hopefully, future decisions in the civil rights field will
demonstrate greater creativity in assessing the reliability of
technical and other specialized evidence.
V. Elements of Gatekeeping in Federal Civil
Rights Cases
After determining the category of evidence—scientific,
technical, or specialized--the court must next assess the
relevance and reliability of the evidence under Federal Rule of
Evidence 702.373 If the evidence satisfies these standards,
but is based on otherwise inadmissible hearsay, under Federal
Rule of Evidence 703, the court may also need to determine
whether the underlying facts or data are "reasonably relied upon
by experts in the particular field in forming opinions or
inferences on the subject."374 In addition, the court may have to weigh the
probative value of the evidence against its possible prejudice
under Federal Rule of Evidence 403.375 Finally,
in making all of these determinations, the court may also have to
consider whether any additional procedures, such as the
appointment of an expert under Federal Rule of Evidence 706376 or
a special master under Federal Rule of Civil Procedure 53377 are
warranted. Because civil rights cases define basic personal
rights, the court should consider both traditional and
non-traditional means to allow the presentation of novel expert
proof.
A. Determining
Relevance
Under Rule 702, the court assesses whether evidence
will assist the trier of fact.378 Daubert
cautions that this determination is not always obvious.379
Scientific evidence may be validly used for certain purposes, but
not for others.380 District courts must identify specific
issues whose resolution will be informed by the evidence. The
relevance determination, however, is a familiar type of
assessment and has not occasioned significant difficulty in civil
rights cases reported since the Daubert decision. For
example, in an appeal of a criminal conviction for holding a Sri
Lankan household employee in involuntary servitude, the First
Circuit held that the district court properly admitted the
testimony of a victimologist on the issue of coercion.381 The
appellate court stated that although "the generalized nature of
the proffered testimony regarding reactions to abuse may temper
its probative value to the factfinder, we do not think that it
can be said that its relevance is negated entirely."382
Similarly, a district court considering the challenge to
execution by lethal gas admitted testimony from specialists in
diverse fields such as neurology, toxicology, anesthesiology,
pathology, and pharmacology because the inquiry into
consciousness and pain "required that the court hear testimony
of qualified experts and weigh the strength of the examination
and crossexamination in order to reach a determination."383 Another
district court hearing a handicap discrimination case admitted
the testimony of an ophthalmologist regarding the relationship
between stress and high intraocular pressure as relevant to the
issue of damages.384 Likewise, in an age discrimination case, the
court allowed the testimony of a social psychologist on
stereotypes in company documents because such testimony would
help make the jury aware that bias may arise from unconscious
motives.385
By contrast, in an action claiming children in a foster home
suffered abuse, a court held inadmissible the testimony of an
economist concerning future loss of enjoyment of life.386 Because
the testimony was based on survey data, the court reasoned that
the evidence comprised the consensus of persons no more expert
than the jurorsand therefore would not assist the jury in
reaching a decision.387 Similarly, in a wrongful death case arising
out of a fatal shooting by police, the court, while expressing
considerable skepticism regarding the theory of hedonic damages,
excluded the testimony of an expert in part because his
calculations were based on "the value of a statistical life--a
nameless, faceless member of society."388 In the
court's view, the expert failed to tailor his calculations to fit
the case at hand and his testimony could therefore not assist the
jury in awarding damages.389
B. Determining
Reliability
Daubert noted several factors that a district court should
consider to ensure that scientific evidence is reliable: (1)
testing, (2) peer review and publication, (3) error rate and
professional standards, and (4) general acceptance.390
1. Testing
Daubert indicated that a key factor in evaluating the
reliability of a scientific theory or technique was "whether
it can be (and has been) tested."391 The
Court's language suggests issues with respect to the assessment
of science based on observation of nature rather than
experiment392 and the propriety of testing within the
context of the litigation itself.393 These
latter issues have only been addressed peripherally in civil
rights cases subsequent to Daubert.394
These issues are, however, exemplified in a case claiming abuse
of students in a residential facility for mentally retarded
children.395 The magistrate judge396 considered
a motion in limine to exclude testimony of a psychiatrist
and two psychologists who examined the seven plaintiffs.397 As a
result of the examinations, which consisted of a history, a
psychological evaluation utilizing standardized tests, and a
clinical interview, the witnesses determined that the plaintiffs
had been sexually, physically, and emotionally abused.398 The
focus of the expert evaluation was "to compare the behavior
or 'symptoms' of the child to that of victims of child
abuse."399
The court, citing Daubert, inquired whether the
methodology used was "capable of being falsified, that is,
whether it actually employed the 'scientific method.'"400 Answering
in the negative, the magistrate found that this type of
psychological evidence was both controversial and, for the most
part, "irrefutable," inasmuch as it could only be tested by
research on patients.401 As a result, the expert conclusions were not
subject to the type of proof available in the physical
sciences.402 In the absence of objective research to test
the expert theories or assess their conclusions, the court found
that the expert techniques did not satisfy the Daubert
standard.403 Both the merits of this decision and its
implications will no doubt be vigorously debated,404 but the
court's approach is instructive for its effort to address the
scientific problems of testing the expert testimony.
2.Peer review and publication
Under Daubert, peer review and publication are
"pertinent considerations" for determining the reliability of
scientific evidence.405 Where the evidence comes from the mainstream
of its respective field, this consideration will weigh heavily in
favor of admission.406 For example, the expert testimony in the
execution by lethal gas case was primarily based on principles
which commonly appeared in authoritative medical treatises.407
Accordingly, the court could presume it had been subjected to
peer review and publication and accepted by the scientific
community as having significant probative value.408 Where
experts present new or marginal theories, this factor should not
lend significant support to the admission of evidence. Thus, the
magistrate hearing the mentally retarded children's abuse case
gave little weight to controversial literature on the
symptomatology of abuse.409 If the circumstances are such that viable
theories are likelyto be published and subject to peer review,
the absence of these factors may weigh against admission.410
3. Error rate and professional
standards
Daubert also indicates that the court should consider
"the known or potential rate of error . . . and the existence and
maintenance of standards controlling the technique's
operation."411 The courts have overemphasized this factor
in a number of cases by treating an indeterminate error rate as
conclusive in circumstances where it should have little
bearing.412
A recent decision in which a district court issued a protective
order against the administration of a battery of psychological
tests as part of a mental status exam of a plaintiff who claimed
to be suffering from depression as a result of experiencing sex
discrimination in employment illustrates this point.413 The
plaintiff "adduced substantial information demonstrating the
inadequacy of the correlation factors and the validity factors of
all five of the tests in question."414 Under
these circumstances, the court viewed the error rate of the
proposed tests as indicating a lack of good cause for this aspect
of the exam.415 Similarly, in the mentally retarded
children's abuse case, the unknown error rate of the experts'
methodology for determining abuse contributed to the magistrate's
decision to exclude the evidence.416
On the other hand, an unknown error rate may not prove fatal to
techniques previously admitted under Frye. The district
court in a case involving questioned records offered to support a
damage claim for sex harassment and retaliatory discharge stated
that error rates are only one factor to consider in determining
the admissibility of expert testimony and denied plaintiff's
motion to exclude evidence from two chemical tests that were
generally accepted for examining documents.417 Courts in
civil rights cases have also considered noncompliance with
standards in assessing the reliability of various techniques. In
a number of cases, the courts have excluded expert evidence based
on flawed statistics.418 In the abuse case, the magistrate expressed
concern that protocol for interviewing mentally retarded children
had not been followed and that there was no validated protocol
for using anatomically correct dolls, art, or graphic materials
as part of the protocol.419 Of course, the degree of compliance
with the standards may significantly affect the court's
determination of admissibility.420 4. General acceptance
Daubert's retention of Frye's general
acceptance standard as a factor in gatekeeping greatly moderates
the effect of the decision.421 In the civil rights area, as elsewhere,
Daubert affords discretion to accept established theories
and techniques, regardless of how they would fare if scrutinized
in the first instance under the other gatekeeping factors. The
decision thus anchors the gate to the future of expert evidence
firmly in its past.
To date, no court in a civil rights case has excluded evidence
previously found to have achieved general acceptance,422 and the
courts have uniformly excluded proof which previously lacked
general acceptance.423 Time will no doubt alter this trend,
particularly as courts have occasion to grapple with truly novel
theories which have not yet had extensive exposure in their
respective disciplines. A party offering a novel theory,
however, should be prepared to present convincing proof that the
theory has a basis in good science as required by
Daubert.424
C. Federal Rule of Evidence
703
Daubert instructs the district courts to "be mindful of
other applicable rules."425 Among these is Rule 703 providing that
"expert opinions based on otherwise inadmissible hearsay are
to be admitted only if the facts or data are of a type reasonably
relied upon by experts in the particular field in forming
opinions or inferences uponthe subject."426 This
requirement proved fatal in a civil rights case in which a pro se
plaintiff attempted to introduce statistical evidence in support
of a constitutional challenge to the Veterans Administration's
(VA) claim procedures.427 On summary judgment, plaintiff offered the
affidavit of another individual stating that numerical statistics
provided by the VA had been analyzed using a certain computer
program.428
The court found that there was no showing that the affiant was
qualified as an expert or that the data was of a type reasonably
relied on in the field and excluded the affidavit.429 By
contrast, in a sexual harassment case in which plaintiff filed a
motion in limine to bar the |
