THE “DAUBERT” DECISION: The most important U.S. Supreme Court Decision that most people never heard of.

Daubert v. Merrell Dow Pharmaceuticals (92-102), 509 U.S. 579 (1993);  was first filed in the Southern District Court of California in 1989. It eventually wound up in front of the Supreme Court of the United States. By that time, “Daubert” confirmed that the FEDERAL RULES of EVIDENCE had become the standard for the admission of scientific evidence and expert opinion in Federal courts. As we shall see, it has become the national standard at all court levels in many states. It is especially applicable when considering the opinions of Accident Reconstructionists (AR) and Independant Examiners. In that regard, it holds special emphasis for chiropractors and our evolving Forensic Analysis of ARs and IEs who seek to abridge care based on shoddy, unsupported opinions. On a related note, it is also highly applicable to Forensic Analysis of law enforcement methods, technique and testimony including the crucial "chain of custody" documentation. http://straylight.law.cornell.edu/supct/html/92-102.ZO.html

This WEB page summarizes the excellent article by Peter Rast, DABLEE, DABFE, DABFET that is cited as follows: Rast P, “The Daubert Decision: Accident Reconstruction Considerations,” The Forensic Examiner, Vol. 15, #4, Winter, 2006, pg. 37-41.

Prologue: In 1923, there was a landmark Federal case cited as Frye v. United States. This Federal case became the national standard for admission of scientific evidence for 70 years until Daubert came along. At issue in Frye, was the admission of expert testimony. The upshot of Frye was that expert testimony was admissible in Federal courts when the scientific principle(s) on which the testimony was based was sufficiently established to have attained what was known as “general acceptance” in a certain field of science. Thus, “general acceptance” was the Federal standard for most of the 20th Century.

*Trial Recap: Petitioners Jason Daubert and Eric Schuller were minor children born with serious birth defects. They and their parents sued respondent Merrell Dow in California state court, alleging that the birth defects had been caused by the mothers' ingestion of Bendectin, a prescription anti nausea drug marketed by Merrell Dow. Merrell Dow removed the suits to federal court on "Diversity" grounds. **Diversity is the power of the federal courts to decide cases between two citizens of different states, provided the amount the plaintiff seeks in damages exceeds $75,000.

After extensive discovery, respondent Merrell Dow moved for Summary Judgment {A legal remedy one side or the other can use: if a movant feels an argument is so compelling, so true and unrebuttalble, Summary Judgment is sought which compells the judge to end the trial immediataly in the movant's favor}, contending that Bendectin did NOT cause birth defects in humans and that the petitioners, Daubert, et. al., would be unable to come forward with any admissible evidence that it did. In support of its motion, respondent Merrell Dow submitted an affidavit of Steven H. Lamm, physician and epidemiologist, who was a well credentialed expert on the risks from exposure to various chemical substances.  Doctor Lamm stated that he had reviewed all the literature on Bendectin and human birth defects--more than 30 published studies involving over 130,000 patients. No study had found Bendectin to be a human teratogen (i.e., a substance capable of causing malformations in fetuses). On the basis of this review, Doctor Lamm concluded that maternal use of Bendectin during the first trimester of pregnancy had not been shown to be a risk factor for human birth defects.

Petitioners Daubert et. al. did not (and do not) contest this characterization of the published record regarding Bendectin. Instead, they responded to the respondent's motion with the testimony of eight experts of their own, each of whom also possessed impressive credentials. Those experts produced some data that showed lab tests and animal testing that suggested Bendectin may cause birth defects. The data was far from compelling. The Supreme Court ultimately agreed with Merrell Dow: virtual subjective opinions without well published studies or peer reviewed studies or repeatable test results would no longer make a sustainable argument.

Courtroom Journey Recap: However, earlier, when Daubert v. Merrell Dow originally went to trial, the trial judge ruled that Frye was still the standard for expert testimony and admission of scientific evidence. Merrell Dow appealed the decision to the 9th Circuit Court of Appeals arguing that the “Federal Rules of Evidence” were now(as of 1990) the NEW and correct standard by which to enter scientific evidence. The Appeals court agreed with the lower court trial judge however, and affirmed the original opinion; which is to say it affirmed Frye. Twice defeated, Merrell Dow then appealed the case to the U.S. Supreme Court and the Supremes granted certiorari in 1991. Two years later, the Supreme Court vacated the 9th Circuit Court opinion, finding for Merrell Dow. Thus, the “Daubert Criteria” was born.

LEGAL ANALYSIS:

At issue for the Supreme Court in Daubert was whether the more loosely based Frye “general acceptance” criteria or the more modern “Federal Rules of Evidence” criteria would stand as the (then) new standard for the admission of scientific evidence and/or testimony in Federal courts. As we now know, the Supreme Court decided that the more modern and far more stringent “Federal Rules of Evidence” criteria were the proper standard of which to hold scientific evidence and testimony. Rule 702 of the “Federal Rules of Evidence” governs evidentiary issues such as expert testimony and furthermore affirms what is minimally necessary for a judge to fulfill what has become essentially a "gatekeeper" role when screening and filtering scientific evidence trying to be entered in court. Thus, the court ruled that according the Rule 702, the standard is such that it means a grounding in the scientific method and “knowledge” means a set of facts or ideas accepted as true on “good” grounds. In other words, the Supreme Court stated that the admissibility of expert testimony and/or scientific evidence in Federal trials need be based on Rule 702. This means that the scientific data/testimony may be tested by applying several more rigorous criteria than heretofore appreciated in the Federal system. This included:

•  Whether the theory or technique has been tested.
• Whether the theory or technique has been subjected to peer review and published.
• Whether the theory or technique has an established error rate.
• Whether the technique or theory has attained general acceptance within the relevant scientific community.

*Bear in mind, the Supreme Court stated very clearly that the criteria listed in Daubert did not constitute a checklist. That is to say, the factors listed above can be applied as needed or deemed necessary by the trial judge. Thus, not all criteria need apply. Also, the Supreme Court emphasized that the Daubert criteria apply specifically to methodology and theories, NOT opinions and conclusions. In other words, initial admissibility of the data to get into evidence is up to the judge; the actual truth of the expert opinion/data is for the trier of fact (jury) to decide.

These are the formal criteria now known as the “Daubert Criteria.” Thus the courts, in applying the Daubert criteria, decide, as a matter of law, if scientific evidence and opinion can be admitted at all to the jury and if so, may not then comment on same once admitted by the trial judge; the jury will then decide what weight to give an expert opinion and that data presented. Both the defense and the plaintiff will be held to the Daubert standard and through this, opposing opinion and scientific data can be introduced in a trial. Cross examination and establishment of credentials carry on just as in any other court case.

NB: Be Advised: Daubert IS the standard in Massachusetts. Citation is: 641 N.E. 2d 1342, 419 Mass 15, Commonwealth v. Lanigan, (Mass. 1994).  *Argued Sept. 8, 1994;  Decided Nov. 18, 1994.

ACCIDENT RECONSTRUCTION(ISTS):

While accident reconstruction is formally based on accepted principles of physics and engineering, AR is still subject to legal attack as we shall see in the following case law. Very often, the question boils down to methodology or lack thereof.

 1)      J.B. Hunt Transportation v. General Motors Corp. (2001): Our first case involves the sensitive issue of accident scene photography. In this case an AR consultant opined that a series of impacts occurred in a specific order. He arrived at his opinion by merely looking at photographs of the vehicles involved in the accident. In this case, the district court excluded the AR’s expert testimony because uncontroverted eyewitness accounts completely refuted the AR’s “after the fact” guesswork with actual factual retelling of the accident as it happened. The trial court further added that the analytical method used by the AR lacked scientific support and thus was inadmissible under Daubert. The 8th Circuit Court of appeals affirmed the trial court’s decision.

2)      Perret v. Nelson (1998): Expert AR testimony in this case concluded that collision impact severity was minimal resulting in a lower jury award that sought by the plaintiff. The AR’s opinion was based partly on the use of accelerometers which was determined to be an accepted industry practice of high scientific value. Admissibility was affirmed on appeal as well.

3)      Smith v. BMW North America (2002): Originally, Smith’s AR expert’s opinion was excluded at trial due to an error in his analysis. BMW’s expert corrected the error, much to the dismay of BMW. The 8th Circuit Court reversed Smith’s expert opinion exclusion and remanded a new trial such that the jury needed then to decide the outcome of the testimony. In this odd case, the opposing expert rehabilitated the plaintiff’s expert. It was a mistake but a happy one for Smith. Once the plaintiff’s expert testimony was re-admitted and passed muster under Daubert, the court was reminded that opinions and conclusions were for juries to evaluate.

SUMMATION:

If a method used by an AR expert or any expert for that matter, is used to formulate a forensic opinion and is not supported by scientific and/or engineering principles, that expert can fully expect his or her opinions to be challenged via "Daubert" and probably disavowed. For example, recently, ARs have been rendering opinions without so much as a report submitted to support that opinion here in Massachusetts. All too often, we Chiropractors hear the same refrain: that an AR decided that an accident couldn’t have happened in such and such a fashion; thus cancelling a claim, abridging care for a patient and disallowing reimbursement for the treating doctor. Some of these same AR experts will often visually inspect photographs of vehicle damage and, based solely upon looking at a picture, they will opine the impact vectors and severity including Delta-v and g-force pressure. This is laughable. There are no studies in existence that support just looking at photos and then deriving crucial impact data and speed vectors. These types of “junk science” opinions should be expected to be disallowed along with any "report magnification" issued by the same debunked experts. They can be easily excluded on the basis of no ability to test their theories, no ascertainment of error rate or general acceptance of looking at pictures. The same holds true for unqualified Independent Examiners who, among other innapropriate opinions, often claim they reviewed "pictures" of the accident vehicle and made value decisions on a given case based on a pictoral review. On the other hand, if an expert were to apply photogrammetry to a photograph of vehicle damage, establish a damage profile and then estimate Äv and g-forces, such an analysis would probably survive a Daubert challenge. I urge all practitioners to challenge the reports by ARs first by obtaining them and then forensically examining the report to determine whether or not it was based on scientific algorithms. If not, you have a golden chance to get the report thrown out. Likewise, when IME (IE) doctors profer "opinions" that have no basis in fact, invoking the "Daubert Criteria" should effectively dismantle unfounded opinoins. See also our WEB page called I M E Monitors. There is an icon for this page on the HOME page. It explains the IME (IE) situation more fully.   

 *Photogrammetry is a measurement technology in which the three-dimensional coordinates of points on an object are determined by measurements made in two or more photographic images taken from different positions (see stereoscopy). Common points are identified on each image. A line of sight (or ray) can be constructed from the camera location to the point on the object. It is the intersection of these rays (triangulation) that determines the three-dimensional location of the point. More sophisticated algorithms can exploit other information about the scene that is known a priori, for example symmetries, in some cases allowing reconstructions of 3D coordinates from only one camera position.

Dr. Haberstroh is a BOSTON and SOMERVILLE Chiropractor.