Thomas W. Lyons
(Reprinted with permission from the Defense Research Institute newsletter “Trials & Tribulations,” Spring 1997).
In much litigation today expert testimony is critical, if not determinative. Full blown trials with expert testimony are often expensive. Accordingly, if your opponent’s case includes potential testimony which may be inadmissible or insufficient to get its case to the jury, a pretrial hearing on that testimony could save your client a lot of money and you a lot of time. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993), the Supreme Court required federal district court’s to make a “preliminary assessment” of the admissibility of expert testimony. Id. at 2796. However, the Court did not explicitly require that this assessment occur at a pretrial hearing; it could take place during trial.
Consider the following reasons to get the issue of expert testimony to the trial judge before trial:
- a ruling on the expert testimony will be issue or case dispositive;
- if presented, the expert testimony will prejudice the jury even though they are later instructed to disregard it;
- a ruling on the testimony will significantly affect the parties’ trial strategies;
- exclusion of the testimony will reduce the cost of trial;
- a hearing will educate the judge to the issues;
- a hearing will allow full briefing and explanation of issues which is not possible during trial; and
- it may lead to a favorable decision.
Nonetheless, some judges may be reluctant hear these issues issue before trial. They will say: “Why try the case twice?” Obviously, judging your judge’s receptiveness to the idea is critical. If you convince him to give you a hearing and failed to impress, you may not get helpful rulings at trial. Other judges may be more receptive to exclusion if they have had time to mull over the issues. Your client may not want to risk the possibility of paying for two hearings. Moreover, a pretrial hearing will certainly educate your opponent to the weaknesses in his case. If you have a judge who will let your opponent rebuild his case before trial a pretrial hearing may backfire. Also, your opponent may request a similar hearing on your expert testimony. An appellate court is unlikely to overturn an unfavorable judgment because the trial court failed to Provide a pretrial hearing on expert testimony.
Assuming you have made the tactical decision to press for a pretrial hearing, there are two possible vehicles. If the expert testimony is insufficient to get all or part of the your opponent’s claims or defenses to the jury, you can move for summary judgment under Rule 56 based on the pleadings and discovery. Keep in mind that sufficiency of the expert testimony can be different from its admissibility. While inadmissible expert testimony can render a claimant’s case legally insufficient, it may also be the trial court will rule claimant’s proof does not require expert testimony. Conversely, a trial court can assume for the sake of argument that the expert testimony is admissible but still rule, for example, that it fails to exclude adequately other possible causes of plaintiff’s alleged harm. From a purely logical standpoint it may make sense to address admissibility before sufficiency; from a tactical standpoint it may be helpful to know where the court stands on sufficiency before attacking admissibility. Some courts seem to treat the issues of admissibility and insufficiency as inextricably interrelated and thus address the former issue in response to a summary judgment motion even after Daubert. See, e.g., Wade-Giroux v. Whitehall Laboratories, Inc., 874 F.Supp. 1441 (D.V.I.), aff’d, 46 F.3d 1130 (1st Cir. 1994).
In Daubert, the Supreme Court explicitly endorsed summary judgment motions based on deficient expert testimony. The Court said:
. . . in the event the trial court concludes that the scintilla of evidence presented supporting a position is insufficient to allow a reasonable juror to conclude that the position more likely than not is true, the court remains free to . . . grant summary judgment . . .
113 S. Ct. at 2798, citing Turpin v. Merrell Dow Pharmaceuticals , Inc., 959 F.2d 1349 (6th Cir.), cert. denied, 113 S.Ct. 84 (1992). Even before Daubert, in response to Rule 56 motions courts have found expert testimony insufficient for a variety of reasons, usually that the expert failed to exclude other possible causes of the claimant’s injuries, see, e.g. , In re Agent Orange Product Liability Litigation, 611 F.Supp. 1223, 1263 (D.C.N.Y. 1985), or failed to prove causation was “more likely than not” (which may be the same thing). See, e.g., Lynch v. Merrell-National Laboratories, 830 F.2d. 1190, 1197 (1st Cir. 1987).
In Vadala v. Teledyne Industries, 44 F.3d 36, 39 (1st Cir. 1995), plaintiff alleged excessive heat had caused a damper in a Teledyne airplane engine to polymerize during flight resulting in the plane’s crash. The defense argued the polymerization occurred in the post-crash fire. Plaintiff’s expert’s opinion depended in part on the fact that adjacent rubber seals and o-rings had not polymerized which he contended would have happened if the post-crash fire caused the damper’s polymerization. However, he did not know what temperature would cause the seals and o-ring to polymerize. Accordingly, the trial court found his opinion could not sufficiently rule out the affect of the post-crash fire and held his testimony inadmissible. The court entered summary judgment for defendant. The First Circuit affirmed. Id. at 39-40. It said:
This was not because of any flawed scientific principle-head admittedly can cause in-flight polymerization-but because there was no substantial basis for concluding that it had done so here. The same result would follow even if [the expert’s] testimony were admitted for what it is worth; the evidence not being sufficient to permit a reasonable jury to find in plaintiff’s favor, the court had no alternative but . . . to grant summary judgment . . .
Id. at 39, citing Daubert, Id. at 2798.
Similarly, in the Turpin case, the Sixth Circuit found that all but one of plaintiff’s experts would opine only that Bendectin was capable of causing birth defects but not that it “probably causes” birth defects or that it caused plaintiff’s. 959 F.2d at 1360. With respect to the one expert who would state that conclusion, the court found his opinion inadmissible. Id. Accordingly, it affirmed summary judgment.
A summary judgment motion on expert testimony should highlight the various possible reasons for the Accident which are not defendant’s responsibility and the expert’s difficulties in eliminating them as causes of the Accident. Similarly, if the expert does not state his opinions to the requisite degree of certainty, summary judgment may be appropriate. Nonetheless, the trial court may decide after reviewing the written submissions that it cannot determine the admissibility or sufficiency of the evidence without live testimony or the factual context of the claims. Even in these circumstances many courts will still consider a pretrial hearing. For example, in DeLuca v. Merrell Dow Pharmaceuticals. Inc., 791 F.Supp. 1042 (D.N.J. 1992), the trial court held five days of hearings in response to defendant’s summary judgment motion and a reversal and remand by the Third Circuit of its initial decision on the motion, 911 F.2d 941 (3rd Cir. 1990). The parties submitted their direct expert testimony in written form and at the hearing conducted oral cross and redirect examination. They then filed post-hearing memoranda. The district court again granted summary judgment in an extensive opinion including 120 separate findings of uncontested fact and 41 conclusions of law.
If the deadline for summary judgment has passed or the expert’s testimony is not issue dispositive, you may move in limine to exclude the expert’s testimony. The Federal Rules of Civil Procedure do not explicitly Provide for such motions. Nonetheless, the district courts are generally thought to have the authority to hear these motions either within their plenary powers or under Rules of Evidence 104 and 403 or F.R.C.P. 16. See, Eichel v. New York Central Railroad Co., 375 U.S. 253, 256 (1963)(Harlan, J. concurring); see, also, Blumenkopf, The Motion in Limine: An Effective Procedural Device with No Material Downside Risk, 16 New England L. Rev. 171, 174, 188-192 (1981). In Daubert, the Court identified Rule 104(a) as the basis for the preliminary assessment of expert testimony. 113 S.Ct. at 2796. However, Rule 104 itself Provides little support for an argument that the trial court must or should Provide a pretrial hearing. Subsection (a) requires that:
Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court subject to the provisions of subdivision (b). In making its determination, it is not bound by the rules of evidence except those respect to privileges.
(As a rhetorical matter one wonders how the court could determine the admissibility of expert testimony under Rule 702 unless it is bound by that rule). However, courts can decide preliminary questions during trial. Subsection (c) of Rule 104 only requires the court to have a pretrial hearing when the issue is the admissibility of a confession or “when the interests of justice require” or when an accused is a witness and requests a hearing. Accordingly, the party which wants a pretrial Daubert hearing must argue that the interests of justice require it.
The Advisory Committee Notes seem to indicate that pretrial hearings can be a waste of judicial resources:
The procedure is time consuming. Not infrequently the same evidence which is relevant to the issue of establishment of fulfillment of a condition precedent to admissibility is also relevant to weight or credibility, and time is saved by taking foundation proof in the presence of the jury. Much evidence on preliminary questions, though not relevant to jury issues, may be heard by the jury with no adverse effect.
Fed. R.Evid. 104 advisory committee’s note.
However, several commentators strongly support pretrial hearings. The Federal Judicial Center’s Reference Manual on Scientific Evidence says:
Rule 104(a) is the court’s vehicle for determination of preliminary questions concerning the qualifications of a witness, the existence of a privilege, or the admissibility of evidence …..When the admissibility of expert evidence is pivotal to a motion summary judgment, a Rule 104(a) hearing should precede consideration of the motion.
Reference Manual on Scientific Evidence, p. 30 (Fed. Jud. Center 1994). The Center’s Manual on Complex Litigation states:
Parties should …. therefore be required, to the extent feasible, to raise their objections to admissibility in advance of trial (usually by motions in limine), with all other objections, except those based on relevance or prejudice, deemed waived …. Pretrial rulings are also advisable with respect to proffered expert testimony that may be pivotal. The court may rule on the basis of written submissions, but an evidentiary hearing under Fed. R. EvId. 104(a) may be necessary to determine whether the evidence is admissible under Rules 702 and 703.
Manual for Complex Litigation, Third, §21.642 (Fed. Jud. Center 1995).
Notably, Fed. R. EvId. 103 (c) Provides: “In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means . . .” With respect to this rule, Professors Wright and Graham suggest:
Those who favor pretrial rulings argue that they make the trial a more predictable affair which encourages settlements and enables counsel to make a more efficient presentation of their cases. The advance ruling is also thought to save time at trial by eliminating frequent bench conferences and the imposition on the time of the jurors who often resent having to cool their heels in the hall while evidentiary issues are being threshed out in the courtroom …. Finally proponents argue that pretrial ruling are more accurate than those made during trial because they can be more thoroughly briefed and argued. This is thought to reduce appeals and foster the growth and development of the law.
Wright and Graham, Federal Practice and Procedure, §5037. All of these comments support the use of pretrial hearings when the admissibility or sufficiency of a parties’ expert testimony can be seriously disputed.
Since Daubert some appellate panels have declined to require preliminary hearings on the admissibility of expert testimony. See, e.g., Holt v. Holt, 57 F.3d 1, 4-5 (1st Cir.1995); Hopkin v. Corning Corp., 33 F.3d 1116, 1124 (9th Cir. 1994). These decisions are distinguishable. In Holt the appellant had not requested a preliminary hearing or even objected to appellee’s expert testimony. The First Circuit surmised this was a tactical decision which backfired. A year after trial appellant moved for relief from judgment under Rule 60(b). On appeal appellant argued that Daubert required the district court to make sua sponte rulings on the admissibility of expert testimony. The circuit court agreed that Daubert does require courts “to conduct a preliminary assessment of the reliability of expert testimony, even in the absence of an objection.” 57 F.3d at 4. However, the trial court is not required sua sponte to make “explicit on-the-record rulings.” Id. at 4-5. The First Circuit declined to “shackle the district court with a mandatory and explicit” reliability analysis. Id. at 5. Rather, the circuit court will assume the district court makes consistent and continual sub silentio rulings on the admissibility of all evidence. Id. at 5. The court then went on to identify these remarks as dicta in light of the posture of the appeal: “In any case we need not at this time determine the precise contours of the district court’s responsibility under Daubert.” Id. at 5. The court said that even if the admission of the expert testimony was error, it was not a mistake of law entitling appellant to relief under Rule 60(b).
Similarly, in Hopkins it appears the appellant did not request a pretrial hearing on appellee’s expert testimony though it did object at trial. The Ninth Circuit agreed that the trial court has an obligation under Rules 104(a) and 702 to determine whether an expert is proposing to testify to scientific knowledge which will be helpful to the fact finder. 33 F.2d at 1124. However, it said the trial court is not required “…to hold a Rule 104(a) hearing, but rather must merely make a determination as to the proposed expert’s qualifications.” Id.
Other courts since the Daubert decision have made rulings or comments supportive of pretrial rulings on expert testimony. On remand of the Daubert case, the Ninth Circuit said:
Where the opposing party thus raises a material dispute as to the admissibility of expert scientific evidence, the district court must hold an in limine hearing (a so-called Daubert hearing) to consider the conflicting evidence and make findings about the soundness and reliability of the methodology employed by the scientific experts. (emphasis added).
Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1319n. 10. The Third Circuit seems to assume that Daubert requires in limine hearings: “And we generally agree with Professor Berger that because under Daubert a judge at an in limine hearing must make findings of fact on the reliability of complicated scientific methodologies and this fact-finding can decide the case. . .” In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717, 739 (3rd Cir. 1994). See, also, Government of the Virgin Islands v. Sanes, 57 F.3d 338, 341 (3rd Cir. 1993). The Eighth Circuit has indicated that at least in a criminal case involving DNA evidence the trial court must make a pretrial assessment of whether, if challenged, the DNA expert properly applied correct protocols of DNA profiling. United States v. Martinez, 3 F.3d 1191, 1198 (8th Cir. 1993).
In other areas of evidence federal courts have expressed a preference for pretrial hearings for reasons which apply equally well to expert testimony. In an antitrust case, In re Japanese Electronic Products, 733 F.2d 238 (3rd Cir. 1983), the Third Circuit reviewed the trial court’s numerous evidentiary rulings, including expert testimony, made after an in limine hearing. It commented:
. . . we agree completely with those commentators who urge that in limine ruling on evidence issues is a procedure which should, in a trial court’s discretion, be used in appropriate cases. [citations omitted]. This was an appropriate case, not only because the court’s in limine consideration was far more efficient than if the rulings were deferred until the trial, with the consequent interruptions, but also because the in limine procedure permitted more thorough briefing and argument than would have been likely had the rulings been deferred.
Id. at 260. The district court itself wrote an extensive explanation of the benefits of the pretrial hearing. Zenith Radio Corp. v. Matsushita Electric Industrial Co., Ltd., 505 F.Supp. 1125, 1139- 1 141 (E.D.Pa. 1980). However, three years before Daubert the Third Circuit said: “Japanese Electronics does not require that the ‘factual inquiry’ take the form of an in limine or other hearing . . . however . . . the district court must have a proper and reviewable foundation for making its admissibility findings. In re Paoli Railroad Yard PCB Litigation, 916 F.2d 829, 853(3rd Cir. 1990).
The Second Circuit has indicated that a pretrial evidentiary hearing is not a matter of right but should be held “only if the moving papers allege facts with sufficient definiteness, clarity and specificity to enable to trial court to conclude that relief must be granted if the facts alleged are proved.” Gentile v. County of Suffolk, 926 F. 2d 142, 148 (2nd Cir. 1991) quoting United States v. Carrion, 463 F.2d 704, 706 (9th Cir. 1972). On the third day of a civil rights trial in that case defendants requested a Rule 104 hearing respecting the admissibility of a investigative report. Judge Weinstein declined to interrupt the trial but held a post-trial hearing. The Second Circuit upheld the Judge’s decisions and chastised the defendants for not seeking a pretrial hearing. Id. at 149.
Criminal decisions Provide arguments in favor of pretrial hearings though counsel must be prepared for the retort that those cases have constitutional concerns which may not be present in civil trials. For example, in United States v. Carbone, 798 F.2d. 21 (1st Cir. 1986) the court addressed the admissibility of allegedly inaudible tape recordings. It said the test of admissibility was whether “. . . the inaudible parts are so substantional as to make the rest more misleading than helpful” and that the evidentiary decision rests within the trial judge’s discretion. Id. at 24. The First Circuit commented that the “preferred way” of ruling on such challenges is at a pre-trial hearing. Id. at 25. This appears to be a straightforward evidentiary decision and not particularly implicated by any Fifth or Sixth Amendment concerns which are not mentioned in the opinion. Counsel should argue that under Daubert the court has a similar “gatekeeping” responsibility to insure that a expert’s testimony is more helpful than misleading and that duty is best exercised at the “preferred” pretrial hearing.
In United States v. Gutman, 725 F.2d 417 (7th Cir. 1984), the Seventh Circuit said the trial court has “. . . the power, and in an appropriate case the duty . . .” to hold a pretrial hearing to determine whether a witness should be barred from testifying because he is insane. Id. at 420. The court indicated that when the moving papers create “serious doubts” as to a witness’s competency the trial court can be compelled to hold a pretrial hearing. Id. Again, the decision does not seem to found on constitutional concerns and arguably when a civil litigant’s motion in limine raises serious doubts about the admissibility of expert testimony the trial court should have a pretrial hearing.
There are many federal cases considering the need for a pretrial hearing when the prosecution wants to offer the statement of an alleged coconspirator against a defendant. See, e.g., United States v. James, 590 F.2d 575 (5th Cir. 1979). In James the Fifth Circuit first considered whether admissibility of such evidence was governed by Rule 104(a) or 104(b) which reads:
When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
The court commented that subpart b applies to that evidence which “present[s] no danger of prejudice to the defendant.” 590 F.2d at 579. However, the court said co-conspirator’s declarations endanger the integrity of the trial because:
the relevancy and apparent probative value of the statements may be so highly prejudicial as to color other evidence even in the mind of a conscientious juror, despite instructions to disregard the statements or to consider them conditionally.
Id. Numerous other appellate courts have required or urged trial courts to hold a James hearing in these circumstances. Counsel should remind the court of the numerous appellate decisions commenting on the similar proclivity of jurors to place undue importance on the testimony of expert testimony “because of its aura of special reliability and trustworthiness,” see, e.g., United States v. Amaral, 488 F.2d 1152 (9th Cir. 1973), and then argue that expert testimony even if heard in part by the jury will influence them even if they are subsequently instructed to disregard it.
Pretrial rulings can significantly affect the parties trial strategies. See, In re Rhode Island Asbestos Cases, 11 Fed. R. Evid. 444, 445 (D.R.I. 1982) (“. . . because a decision on the admissibility of these documents is critical in order for the parties to plan their strategies I will consider the admissibility of this material under . . . Rule 104. . .”). Knowing in advance whether a particular expert will testify or whether certain foundational evidence will come in can certainly shape opening statements and the order of proof.
Expert testimony is expensive. One expert alone may cost thousands of dollars a day just to sit in the courtroom. Moreover, preparation of experts and lawyer for the testimony and the supporting exhibits may be many, many thousands more. Federal Rule 16(c)(4) Provides that the court at a pretrial conference “. . . may take appropriate action with respect to . . . the avoidance of unnecessary proof and of cumulative evidence, and limitations on the use of testimony under Rule 702.” F.R.C.P. 16(c)(4). The Advisory Committee Notes for the 1993 amendments state:
Even when proposed expert testimony might be admissible under the standards of Rules 403 and 702 . . . 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.
F.R.C.P. 16 advisory committee note. Obviously, this argument can be double-edged as your opponent may use it for exclusion of your admissible but “unduly expensive” testimony. Finally, counsel could point out that Rule 1 says the Rules “. . . shall be construed and administered to secure the just, speedy and inexpensive determination of every action.” F.R.C.P. 1. A pretrial ruling on expert testimony can obviously save the parties many hours and thousands of dollars of presenting and arguing about it during trial.
Given the complexity of much expert testimony, it can be very difficult for counsel in the midst of trial to present effectively all the reasons why it is inadmissible and for the judge to give a very important issue thorough consideration. The lengthy and detailed arguments presented in the DeLuca case and the court’s much praised analysis of them would have been virtually impossible at trial. This point can be particularly important in a jurisdiction where the appellate courts strictly construe the obligation to preserve all objections to admissibility. See, e.g., Morrow v. Greyhound Lines, Inc., 541 F.2d 713, 723 (8th Cir. 1976) (holding defendant failed to preserve particular objection to expert testimony for appeal where it objected at trial on different grounds). If so, this could be a very compelling reason why the trial court should Provide a pretrial hearing. If the worst happens, your arguments along these lines may give you grounds to argue on appeal that this obligation be loosened or even that the failure to Provide a pretrial hearing was prejudicial error.
Finally, a pretrial ruling on critical expert testimony may lead to settlement. Almost every judge encourages settlement.
There are many good reasons for the trial court to hold pretrial hearings on expert testimony. Hopefully these reasons will be persuasive.