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J O I N T C E N T E RAEI-BROOKINGS JOINT CENTER FOR REGULATORY STUDIES
Collisions of Expert Testimony: Why Rule 56 Should Be Amended
Bert W. Rein*, Kate Comerford Todd† and John Eric Howell‡
Related Publication 06-29
October 2006
* Mr. Rein is a founding partner of Wiley Rein & Fielding LLP. He was a law clerk to the Honorable John M. Harlan during the October Term of 1966. He received his L.L.B. from Harvard Law School and his B.A. from Amherst College. The views expressed herein do not necessarily represent the views of Wiley Rein & Fielding LLP. † Mrs. Todd is a partner at Wiley Rein & Fielding LLP in Washington, D.C. and is active in the firm’s appellate, litigation, and communications practices. She was a law clerk to the Honorable Clarence Thomas during the October Term of 2000. She received her J.D. from Harvard Law School and her B.A. from Cornell University. ‡ Mr. Howell is a third-year student at Harvard Law School and was a summer associate in Wiley Rein & Fielding LLP’s summer program.
Executive Summary We propose a novel solution to the problem of resolving "battles of the experts" in court
cases. Judicial proceedings increasingly deal with complex scientific, technical, and economic issues. Lay jurors have difficulty resolving such matters, which require experts precisely because they are beyond the understanding of laymen. To deal with this conundrum, we propose shifting responsibility for resolving these issues to the courts by recognizing them as issues of law rather than fact. We argue that enhancing the decision mechanism would improve the quality of expert testimony and the judicial outcomes.
For years, judicial commentators have observed that the jury system is not well designed to handle expert disputes. Sorting through competing expert testimony is far afield from the traditional role of the jury, plays to the jury's weaknesses, and calls into question the rationality of verdicts that depend on resolving battles of experts. Previously proposed solutions have focused on introducing additional, so-called "neutral" experts. We argue that the debate should focus instead on who should evaluate the expert testimony. We recommend that the lay jury should not adjudicate conflicting expert testimony. Instead, the judge's role should be expanded from admissibility gatekeeper to decisionmaker in battles of experts. To this end, we propose amending the Federal Rule of Civil Procedure 56 – the Rule that permits a judge to summarily resolve legal issues and matters where there is no role for the jury to play. Our proposed amendment would empower the court to enter judgment resolving a dispute among experts rather than submit this dispute to the jury.
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Collisions of Expert Testimony: Why Rule 56 Should Be Amended
Bert W. Rein, Kate Comerford Todd and John Eric Howell
Introduction
No one in the legal community, or in most business or professional communities for that
matter, can be unaware of the proliferating use of experts in almost every form of litigation,
complex and simple. The back pages of almost any legal publication feature advertisements for
expert witnesses in a vast array of fields. Expertpages.com, among the oldest internet directories
of experts, boasts over 360 categories of expert witnesses and consultants. These experts cover
expected fields, such as obstetrics and products liability, but also more exotic areas in which one
might be surprised to find that expertise exists, including dog behavior, doors and windows, hot
tubs and whirlpools, and self storage facilities. Indeed, by today’s standards, it is nearly
impossible to imagine any subject area that is ripe for litigation that is not also the avowed area
of expertise of someone who is willing to testify on a litigant’s behalf.
Federal Rule of Evidence 702 permits parties to present witnesses who are “qualified as
an expert by knowledge, skill, experience, training or education” to testify “in the form of an
opinion or otherwise” to provide the decision maker with “scientific, technical, or other
specialized knowledge.”1 As long as the purported expert’s qualifications meet the minimal
threshold requirements of expertise outlined in Federal Rule of Evidence 702,2 the litigant is free
to offer the expert’s testimony in support of whatever affirmative or defensive position he is
taking. The reality, therefore, is that many lawsuits devolve into a so-called “battle of experts,”
where the facts at issue may not even seriously be in dispute and the key issue that the decision-
maker(s) must resolve is whose expert has the better methodology or opinion. Under Federal
Rule of Civil Procedure 56, as currently drafted, such a dispute (or a portion of the dispute) may
implicate “no genuine issue as to any material fact.”3 Nonetheless, it is difficult to argue that
such a question—which expert is correct—should be treated as a question of law such that
1 FED. R. EVID. 702. 2 See Daubert v. Merrill Dow Pharms., Inc., 509 U.S. 579 (1993). 3 FED. R. CIV. P. 56(c). Similar considerations arise under Rule 50.
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judicial disposition would be appropriate.4 Accordingly, these expert disputes are almost
uniformly submitted to the lay jury. As Herbert Hovenkamp described the situation in the
context of antitrust cases, “too often the judge who feels unqualified to assess the basic
rationality of an expert’s methodology hands the job off to the one decision maker in the
courtroom who is even less qualified than he is, namely the jury.”5
This situation has the perverse effect of expanding the role of the jury to its detriment.
By requiring the lay jury to act as arbiter in the battle of experts, the current system asks too
much of people who are, by definition, not experts in the field at issue and who do not possess
the tools necessary, including time and resources, meaningfully to evaluate the merits of
disputing experts’ testimony. Whenever an essential element of our legal system is stretched and
expanded beyond its traditional and proper role, the limitations of that component, in this case
the lay jury, are highlighted in a way that devalues and denigrates it. The ultimate result is an
undermining of confidence in the legitimacy of the final outcome. That is where we are today
in deciding cases that hinge entirely on resolving conflicting expert testimony.
In this article, we trace the history of the role of juries and of experts in the courtroom
and then review current approaches to battles of experts. We briefly discuss others’ proposals to
change the nature of or supplement the inputs that go into such battles that play out before the
jury. Such proposals that merely alter the inputs—by, for example, adding a so-called “neutral”
expert into the mix—do not address the threshold question of who should be evaluating and
resolving these inputs. Accordingly, we offer and discuss a modest proposal to provide an
interim solution that would take the resolution of expert disputes out of the hands of the lay
jury—amending Rule 56, and by implication Rule 50, to permit a court to enter judgment
resolving a dispute among experts. Without this necessary first step, the place of experts in
litigation will continue to take on greater importance while the judicial system, and particularly
the lay jury, will remain ill-equipped to evaluate and adjudicate their expertise.
4 The relevant portion of Rule 56 reads:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as any material fact and that the moving party is entitled to a judgment as a matter of law.
Id. (emphasis added). 5 HERBERT HOVENKAMP, THE ANTITRUST ENTERPRISE 9 (2005).
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1. Background
A. The Traditional Role of Juries as Fact-Finders and the Emergence of Experts
The classic division of labor between judge and jury in a civil trial allocated “questions of
law” to the judge and “questions of fact” to the jury. The judge’s role as final decision-maker on
legal questions was unsurprising. The jury’s function played to its strengths—a jury was
expected to be familiar with the litigants and to discover evidence first-hand, as best it could.6
Over time, the jury’s function evolved to hearing and evaluating the testimony of live witnesses,
but its role remained to find and weigh facts. The respective roles of the judge and jury were
codified for federal courts in the Federal Rules of Civil Procedure in 1938.
The place of experts in the courtroom has not always been so clear and their current
function is relatively new by historical common law standards. Experts were used in limited
ways to aid in courts’ decisions on issues beyond common understanding since the thirteenth
century, when specialized juries were impaneled to hear disputes involving specialized
knowledge.7 The practice of calling expert witnesses to testify before a lay jury, however, did
not became common until the eighteenth and nineteenth centuries.8 The bulk of this early expert
testimony concerned trade practice or physician opinions regarding time or cause of death,
limited by the state of medical knowledge at the time.9
That was where the restraint and reserved role of experts ended. By the end of the
twentieth century, and certainly today, the use of experts on almost any subject became an
essential attribute of any lawsuit or defense. Indeed, one can now find a purported expert—on
either side—of almost any issue of controversy in virtually any field of study.10 The provision of
expert testimony, and all of the services ancillary thereto, is a booming business and now a
fixture of civil litigation.
6 Learned Hand, Historical and Practical Considerations Regarding Expert Testimony, 15 HARV. L. REV. 40, 44 (1901). 7 Id. at 41-42. 8 Id. at 50. 9 Id. at 46-50. 10 See Expert Pages, http://expertpages.com (last visited Aug. 14, 2006) (identifying experts in “Bars, Restaurants, Hotels & Casinos [and] Hospitality”; “the general pulp and paper industry, with a special focus on the blend of technology, operations and marketing”; “interior design”; and “bicycles,” to name a few).
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There are legitimate explanations for the increased use of expert witnesses in litigation.
Advances in science and technology have given us the ability to inflict and detect more kinds of
harm than ever before. The mechanisms for explaining these harms are, in many cases, far
beyond the understanding of the average citizen. Without the aid of experts, juries and judges
could not effectively evaluate a claim that asbestos caused a plaintiff’s mesothelioma, or that
Vioxx accelerates atherosclerosis, or that an antitrust defendant’s practices are predatory in
economic terms. Quite often, causation cannot be proved without the aid of specialized
knowledge, and a lack of admissible expert testimony is fatal to the claim.
Of course, some causes of the proliferation of expert witnesses are not related to
advances in science. Expert witnesses can be effective advocates and can retell important parts
of a party’s story for the jury with an air of authority and credibility. Experts may also be
amenable to coaching to present their opinions more persuasively. Unlike most fact witnesses,
many experts have repeat experience in testifying at trial and in depositions, and have learned
through experience how to make good impressions. If they do not yet have such experience,
seminars and programs exist to train them, in topics including “Persuasion Skills,” “Advanced
Deposition Skills,” and “How To Be a Dangerous Expert Witness.”11 For the experts, witness
and consulting work can be very lucrative, with fees for some experts exceeding $1000 per hour.
These factors may have contributed as much as advances in science to the proliferation of the use
of experts in every variety of civil litigation.
B. The Judicial Response to Experts in the Courtroom
Although experts have become as commonplace in the courtroom as the judge and jury,
their role and the scope of their participation was not codified into American law in the same
way as that of their more traditional counterparts in 1938. Thus, the courts themselves have been
primarily responsible for shaping the rules regarding expert testimony. These judge-made rules
have focused almost exclusively on the threshold question of how to determine whether someone
should, indeed, be permitted to testify as an “expert.”
11 Seak, Inc., http://seak.com (last visited Aug. 14, 2006).
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The D.C. Circuit set the standard for admitting expert witness testimony in Frye v. United
States in 1923.12 The Frye test required the basis for an expert’s scientific testimony to have
gained “general acceptance in the particular field.”13 The weaknesses of the Frye test were
readily apparent. The Frye standard was easy for judges to manipulate because they could
change the level at which to view the community whose acceptance was required. The approach
could be hostile to new areas of science in which a field had not yet developed. It also had no
mechanism to reject “junk science” if a self-identifying field had developed around a particular
set of methods and ideas.
It was not until 1993, in Daubert v. Merrell Dow Pharmaceuticals, Inc.,14 that the
Supreme Court replaced the Frye court’s “General acceptance” with the touchstones of
“reliability” and “relevance.” The Court decided that the general acceptance test did not comply
with the requirements of Federal Rule of Evidence 702, adopted in 1975. Rule 702 then allowed
a qualified expert to testify if “scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue.”15 The Court found that,
to qualify as “scientific” knowledge, testimony must be supported by good grounds, based on
what is known: it must be “reliable.”16 In addition, to assist the trier of fact, the testimony must
be connected to the issue in question: it must exhibit “fit.”17 But, the judge’s role was to remain
evaluating the expert’s qualifications and the methodology supporting the testimony, not the
expert’s conclusions.18
Daubert was followed by General Electric Co. v. Joiner,19 which clarified that the power
to admit or exclude expert testimony is discretionary, making judges’ decisions reversible only in
situations of abuse. The Court in Joiner instructed lower court judges to evaluate whether the
“analytical gap between the data and the opinion proffered” is too great, acknowledging that
12 293 F. 1013 (D.C. Cir. 1923). 13 Id. at 1014. 14 509 U.S. 579 (1993). 15 FED. R. EVID. 702. 16 Daubert, 509 U.S. at 590. 17 Id. at 591-92. 18 Id. at 595. 19 522 U.S. 136 (1997).
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conclusions and methodology are not analytically distinct.20 The Court completed the so-called
Daubert trilogy in 1998, when it held in Kumho Tire Co. v. Charmichael that the Daubert
standards of reliability and fit apply not only to “scientific” evidence, but to all technical or
specialized evidence and testimony.21 The Court examined the reliability of expert’s
methodology, considering both its reliability in general and how the principles were applied to
the particular case to generate conclusions.22
One could have concluded, after the Daubert trilogy, that the jurisprudence governing
expert testimony was quickly headed toward a logical resolution: allowing judges to resolve
questions of conflicting expert testimony. The Daubert trilogy put the power to evaluate the
quality of expert testimony in the judge’s hands, and gave the judge broad discretion and
instructions to scrutinize the reliability of the testimony and the analytical gaps between premises
and conclusions. Those instructions would seem to direct the judge to examine competing
testimony, and to conclude which expert’s conclusions, if any, were sound given his premises
and methods. Nevertheless, the judge’s role after the Daubert trilogy has remained that of the
“gatekeeper,” shepherding reliable and relevant expert testimony to the jury and excluding
unreliable testimony. Once testimony is through the gate, common practice and the negative
implication of Rule 56 appear to dictate that the task of resolving conflicting testimony among
“qualified” experts is to be performed by the jury alone.
C. The Limitations of the Current System
The current system is flawed. The judge’s accepted options in the Daubert framework
are either to allow all expert testimony when the expert is qualified and uses a common
methodology, or to exclude the testimony if the judge finds a justifiable reason to doubt the
expert’s qualifications or methods. Within extremes, of course, judges have discretion in
choosing when to admit and when to exclude expert testimony. Their choice will often
determine whether the case ends on summary judgment or settles in the face of a long jury trial.
Judges make use of this discretion frequently to dispose of testimony that amounts to “junk
20 Id. at 146. 21 526 U.S. 137 (1999). 22 Id. at 154.
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science,” such as an expert’s opinion finding defective design based on observing a slight
swaying motion in a saw hanging from desk chairs in plaintiff’s counsel’s offices,23 or reports by
unqualified experts who have not conducted tests, performed research, or even read literature
regarding a challenged pharmaceutical before being hired for litigation.24 But beyond clear cases
of “junk science” and “quacks,” a trial court’s ability to exclude inadequate expert testimony is
severely limited. There is no established or systematic way for the judge otherwise to decide that
one qualified expert is drawing valid conclusions from the data and literature and that another
expert is not doing so.
In practice, the role of gatekeeper in collisions of expert testimony offers judges a
Hobson’s choice of, on the one hand, permitting so-called “experts” to present their testimony to
the jury even where the expert’s theories, reasoning, and qualifications are suspect or clearly
inferior to those of competing experts or, on the other hand, excluding the same expert’s
testimony by taking a very strict view of the Daubert standard and risking reversal by the
appellate courts. The former approach places a question in the hands of the jury that has not
fallen within the traditional purview of the jury’s expertise and has at least the cumulative effect
of undermining the legitimacy of the jury’s verdict in suits centering around battles of experts.
The latter approach fares no better for it often compels judges to surreptitiously engraft onto the
Daubert test a substantive inquiry into the expert’s conclusions. This sub silentio contortion of
the law does not go unnoticed; appellate courts are all too willing to reverse decisions to exclude
expert testimony. Indeed, because appellate review is less rigorous where a jury verdict is
involved—and a trial judge may anticipate that a reviewing court will be less likely to reverse a
decision because the judge has admitted too much expert evidence, as opposed to excluding too
much evidence—there is a potential systemic bias in favor of permitting any and all experts to
testify and “letting the jury sort it out.”
The first federal Vioxx suit, among the more than 10,000 similar state and federal
lawsuits filed since September 2004, is a case in point of the difficulties facing trial court judges
and the imperfections in the current approach to resolving expert disputes. On November 18,
2005, Judge Eldon Fallon of the U.S. District Court for the Eastern District of Louisiana issued a
fifty-seven-page ruling on sixteen motions seeking to exclude expert witnesses offered by both
23 Pullins v. Stihl Inc., No. 03-5343, 2006 U.S. Dist. LEXIS 31386, at *8-*9 (E.D. Pa. May 19, 2006). 24 E.g., Devito v. SmithKline Beecham Corp., No. 02-CV-745, 2004 U.S. Dist. LEXIS 27374, at *30-*34 (N.D.N.Y.
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parties to testify about the causes of the plaintiff’s husband’s death and the role Vioxx played, if
any. Judge Fallon’s decision not to exclude a Dr. Gandy is not atypical. (In fact, the court
granted in part only one of the motions to exclude.) The court began its discussion by
recognizing that:
There are several problems with Dr. Gandy’s testimony. . . . [T]here are only two and half pages
of analysis by Dr. Gandy in his expert report. Dr. Gandy’s analysis in these pages is wholly conclusive, rather than explanatory. In addition, his deposition testimony is littered with circular reasoning and instances where he is unable to answer certain questions regarding the literature and studies he said he had read.25
As the court explained, “Dr. Gandy’s deposition as well as his report reveals that Dr.
Gandy does not possess a superior understanding of how Vioxx increases cardiovascular risks.”26
Nonetheless, because “Dr. Gandy did use the proper methodology” and “reviewed all the
proper studies and literature”—“[a]lthough his comprehension of these studies may have been
somewhat lacking”—the court did not exclude Dr. Gandy’s testimony.27 That is, despite the
patent shortcomings of Dr. Gandy’s “expertise,” the court applied the threshold test of Daubert
to conclude that Dr. Gandy’s “methodology was proper” and that he was, therefore, “qualified to
render an opinion on [the plaintiff’s husband’s] cardiac state based upon his review of the
relevant materials.”28 The court’s direction to those seeking to exclude the expert’s testimony
accurately captured the role the jury fills under such circumstances in the vast majority of cases:
To the extent that [the defendant] Merck asserts that Dr. Gandy does not understand Vioxx and its alleged effects, Merck will be able to attack Dr. Gandy at cross-examination much like it did at his deposition. . . . [T]he jury will be entitled to draw its own conclusions as to how much weight Dr. Gandy’s opinion should be afforded.29
Nov. 29, 2004). 25 Plunkett v. Merck & Co., Inc., 401 F. Supp. 2d 565, 583-84 (E.D. La. 2005). 26 Id. at 584. 27 Id. at 584. 28 Id. When the court did exclude an expert’s testimony as to one topic in a later order, it did so only after finding that the would-be expert’s “testimony reveals that [he] lacks the skill, training, and education to testify as expert regarding the role Vioxx played in Mr. Irvin’s death.” Order on Plaintiff’s Motion to Reconsider at 6, Plunkett v. Merck & Co., No. 05-4046 (E.D. La. Dec. 3, 2005). Not only did “Dr. Baldwin display[] a fundamental lack of understanding of the relevant scientific literature,” but he conceded that he was “[n]ot an expert, per se, no” when asked whether he was an expert on the relevant topic. Id. at 7. The court, thus, had no problem reasoning, “[i]f Dr. Baldwin is not willing to consider himself an expert on the effect of Cox-2 inhibitors, it would seem quite peculiar for this Court to qualify him as one.” Id. 29 Id. (emphasis added).
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Judge Fallon’s treatment of Dr. Gandy’s circular and inadequate reasoning is not unique.
In attempting to be faithful to the Daubert doctrine, many trial judges will admit the testimony of
any expert with qualifications who used a standard method, no matter how implausible the
testimony appears. For example, a federal judge in Melberg v. Plains Marketing, L.P.30 felt
compelled to admit opinions that were “somewhat suspect” and resting on “less than a firm
foundation” from expert witnesses on both sides of claims arising from a car’s collision with a
tractor-trailer, presenting testimony about the speed of the car when it crashed and test results.31
“[W]ith reluctance,” the judge admitted all the testimony so the jury could “sift through the maze
of opinions.”32
Even where both sides’ less-than-stellar experts rely on the same data, judges send
conflicting claims to the jury to “sort it out.” In Montgomery v. Mitsubishi Motors Corp.,33
plaintiffs alleged negligence and design defects following an accident in which a Mitsubishi
SUV rolled over.34 The judge admitted testimony from plaintiff’s expert who used data from a
Toyota vehicle for his computer simulation of the Mitsubishi accident. The judge found that the
expert’s selection of variables was not directly relevant to the reliability of the methodology
employed and was a matter for the jury to assess.35 The judge also admitted testimony from
Mitsubishi’s engineering expert even though others in the field disagree on the predictive value
of his testing methodology.36 It is not clear that these so-called “experts” disagreed on any data
from the circumstances giving rise to the case, yet the judge nonetheless sent their conflicting
simulations and interpretations to the jury to resolve.
30 332 F. Supp. 2d 1253 (D.N.D. 2004). 31 Id. at 1261. 32 Id. 33 No. 04-3234, 2006 U.S. Dist. LEXIS 28936 (E.D. Pa. May 11, 2006) (order denying defendant’s motion to preclude expert testimony). 34 Id. 35 Id. at *18-*20 (“While the use of specifications of a different vehicle altogether may not seem sensible, logical or compelling, the Court must focus on its role in this process—that is, the Court is not to pass judgment on an expert’s choices in selecting data to use in a particular scientific or engineering model, but acts at this juncture as a gatekeeper.”). 36 Montgomery v. Mitsubishi Motors Corp., No. 04-3234, 2006 LEXIS 46360, at *11-*12 (E.D. Pa. July 10, 2006) (order denying plaintiff’s motion to preclude expert testimony).
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On the rarer occasions when trial judges do attempt to resolve disputes that hinge on
expert testimony, appellate courts have reversed their decisions.37 In a paradigmatic case of
conflicting expert interpretations, the trial court in the antitrust case Spirit Airlines v. Northwest
Airlines38 granted summary judgment for defendant Northwest. Expert testimony from Spirit
attempted to show that Northwest had engaged in predatory pricing, in an attempt to drive Spirit
out of the market. But, the court found no “battle of the experts” for a jury to resolve because the
court believed that Spirit’s experts used market definitions and cost allocations inconsistent with
legal standards for evaluating predatory pricing claims. The district court thus concluded that
“brute market facts” indicated that Northwest’s fares did not fall below average costs, the legal
standard for predatory pricing.39 The Sixth Circuit Court of Appeals reversed the district court’s
grant of summary judgment, on the reasoning that summary judgment was inappropriate because
Spirit’s expert provided a reliable and reasonable analysis of the market with factual support.40
The Court held that the jury could find, based on that opinion, that price-sensitive passengers
make up a separate market for assessing predation and that Spirit had properly analyzed
cost/price ratios.41 (Noticeably absent from the Sixth Circuit’s discussion of this issue is any
explanation as to how a lay jury would evaluate the conflicting expert testimony to determine the
ultimate issue of predation.)
In short, the lesson that some trial courts may have learned from the Daubert trilogy is
that no matter how implausible expert evidence appears, or how little the jury will add to the
decision, faithfulness to the doctrine and expediency in limiting reversals dictates that expert
evidence should be admitted when experts are credentialed and not employing obviously
unreliable methods. This is not to say that a judge will never be reversed if too permissive. The
Eleventh Circuit made such a reversal in McClain v. Metabolife,42 overturning a four million
dollar verdict in suit for personal injury damages from the use of ephedra products. The district
37 Efforts on the part of the trial judge to screen out experts who have some qualifications but whose reasoning is unsound is often done in clandestine or circuitous fashion, in unreported memorandum orders that place the practice somewhat in the shadows of the trial system. 38 No. 00-71535, 2003 WL 24197742 (E.D. Mich. Mar. 31, 2003), rev’d, 429 F.3d 190 (6th Cir. 2005), amended and superseded by, 431 F.3d 917 (6th Cir. 2005). 39 Id. at *23. 40 Spirit Airlines, Inc. v. Northwest Airlines, Inc., 431 F.3d 917, 931 (6th Cir. 2005). 41 Id. at 935. 42 401 F.3d 1233 (11th Cir. 2005).
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judge claimed a lack of knowledge of the subject matter and acknowledged that there was
insufficient competing expert testimony,43 yet he expected the jury to do a better job of
evaluating plaintiff’s expert testimony. The Eleventh Circuit held that the trial judge abused his
discretion by abdicating responsibility to exclude the plaintiff’s unreliable causation experts.44
The result of the incentives created by, and limitations of, the current system is a world in
which the easiest decisions regarding an expert’s qualifications are made by the judge, and the
jury is given the most difficult questions, where opposing qualified experts give reliable, albeit
competing, testimony. Although this “black box” of jury decision-making provides a level of
insulation between the judges who are subject to appellate review and final judgment, it does not
offer the same level of comfort for those whose legal rights and defenses depend on the
evaluation of experts but are adjudged by a lay jury. The problems with this system are self-
evident.
As explained above, expert testimony is offered more frequently and on more topics than
ever before. Lay juries, by definition, generally lack any level of expertise in the subject of the
litigation in which they play the most important role. To be sure, juries are not incapable of
sorting through conflicting testimony and making reasoned decisions. But it is beyond question
that their “expertise” lies in making factual determinations based on assessments of credibility—
the same fact-finding role jurors have played since the beginnings of the jury system. Lay juries
do not have the time, training, or resources adequately to understand the complex and esoteric
expert testimony on which so many modern trials turn. Post trial interviews and empirical
studies of mock juries continue to show that lay jurors have difficulty assessing empirical
research, especially scientific and statistical evidence.45 Even though most juries likely
thoughtfully and carefully consider evidence, their limited exposure during trial, and even more
limited time to deliberate, makes the jury ill-suited to make decisions concerning complicated
questions about technical issues.
43 Id. at 1237. 44 Id. at 1255. 45 See Jennifer K. Robbennolt, Evaluating Juries by Comparison to Judges: A Benchmark for Judging?, 32 FLA. ST. U.L. REV. 469, 488 n.101 (2005), for a collection of studies of juror competence in assessing scientific and statistical evidence.
12
The current system, nonetheless, demands jurors to imagine themselves to be experts and
to make assessments accordingly. One can find no more stark demonstration of this fiction than
in the case of a typical patent dispute on obviousness. In such disputes, juries must first decide
what the appropriate level of “skill in the art” is for evaluating the evidence and then transmute
themselves to this level to evaluate conflicting expert testimony on what might be obvious to one
at that skill level. Thus, they may need to play the role of “an engineer (or one who worked with
engineers and brushmakers) who had experience in the design of mascara brushes”46 or “an
individual who would have both a professional or graduate degree in either the medical sciences,
chemistry, medicinal chemistry, pharmacology, or a related field, and a ‘knowledge of the
pharmacology and/or mechanisms of action of bisphosphonates.’”47
Quite simply, sending conflicting expert testimony to the jury puts the outcome of a case
under the control of a body that cannot be expected to consistently make decisions on the basis
of an adequate understanding of the issues. The unpredictability this allocation brings about is
no small matter, adversely affecting both efficiency and justice. Millions, and increasingly
hundreds of millions, of dollars are at stake in any given lawsuit involving serious injury or a
large class of plaintiffs. Uncertainty about such large damages can have chilling effects on
commercial and industry behavior. In addition, in any given case, a plaintiff stands to be over or
under compensated based on the jury’s evaluation of his expert testimony.
D. “More Experts” Solutions
We are not alone in thinking that the current system is flawed. Numerous scholars and
judges alike have described the problems that arise from understanding and resolving expert
disputes under the current structure.48 Their focus, however, has primarily been on
supplementing the purported experts’ testimony with additional (and arguably more objective)
expert testimony.
46 L’Oréal S.A. v. Revlon Consumer Products Corp., No. 99-424-SLR, 2000 WL 291531, at *5 n.4 (D. Del. Feb. 24, 2000). 47 Merck & Co. v. Teva Pharms. USA, Inc., 228 F. Supp. 2d 480, 501 (D. Del. 2002). 48 See, e.g., Stephen Breyer, Economic Reasoning and Judicial Review, AEI-Brookings Joint Center 2003 Distinguished Lecture, at http://www.aei.org/publications/pubID.20150,filter.all/pub_detail.asp (last visited Sept. 22, 2006) (“Economic Reasoning”); Richard A. Posner, The Law and Economics of the Economic Expert Witness, 13 J. Econ. Perspectives 91 (1999) (“Economic Expert Witnesses”).
13
For example, Judge Richard Posner has suggested that to help alleviate the problems of
lay judgment of advanced econometrics courts could resort to “more frequent appointment of
court-appointed experts.”49 He recommends “borrowing a leaf from arbitration” and adopting a
model whereby the “parties’ experts could . . . agree on a neutral expert who would be appointed
by the court.”50 Although he acknowledges that this “neutral expert” would “have decisive
weight with the jury,” he nonetheless sees this result as “quite proper[].”51 Similarly, Justice
Stephen Breyer, in his 2003 lecture at the AEI-Brookings Joint Center for Regulatory Studies,
identified the problem judges have in evaluating expert economic testimony and also suggested
that the use of more court-appointed experts, “perhaps experts suggested by the parties,” could
aid judges in deciphering this testimony.52 He highlighted similar approaches adopted
elsewhere—the emerging British model of permitting a judge to appoint a single expert that
would address the issue the parties’ identify as requiring expert testimony and a French court’s
commissioning of “a report from a panel of experts.”53
Although such supplementation of conflicting experts’ testimony may provide a useful
tool in assisting the lay decision maker in evaluating expert testimony,54 this focus on inputs does
not address what we believe to be the more fundamental question of who should be making the
decision that requires analyzing the expert’s theories and conclusions. In the case of Judge
Posner’s arbitration model, in which he concedes that the jury will simply defer to the testimony
of the parties’ experts-selected “super-expert,” the final decision maker as to the point requiring
expert testimony will effectively be the “super-expert” himself. In the case of the British model
discussed by Justice Breyer, where the judge has the discretion to appoint the exclusive expert on
a given topic, this “super-expert” phenomenon would presumably be even more accute.
If one were to assume instead that there are occasions when the additional court-
appointed expert or expert mutually agreed upon by the parties would not provide the dispositive
49 See Posner, Economic Expert Witnesses. 50 Id. (citing another author who proposed this same approach). 51 Id. 52 Breyer, Economic Reasoning. 53 Id. 54 Judge Posner’s “additional proposals,” that a private group should track and publish information regarding experts’ testimony and others’ criticism of it and that lawyers could be required to disclose to the jury the names of all potential experts they contacted on a particular issue, likewise go to the inputs into the expert dispute and not the decision maker. See Posner, Economic Expert Witnesses.
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answer, then problem we identified above remains. The lay jury would continue to lack the
resources and tools effectively to evaluate not only two or more conflicting experts’ testimony,
but also the additional testimony provided by an allegedly “neutral” expert, who may or may not
add useful clarity to the issue. In this way, the mere addition of more experts into the mix does
nothing positive to address the shortcomings of the jury in the context of expert disputes.
Indeed, by itself, this approach would threaten to exacerbate the jury’s confusion or, under Judge
Posner’s reasoning, covertly displace its decision-making role by placing the answer entirely in
the hands of the “neutral” expert himself. There is another way.
3. A Modest Proposal—Modifying Rule 56
The problem identified above—that the jury is too often forced into acting out a role it
was not designed, and is ill-equipped, to play—raises numerous questions that can, and should
be, explored further. The thoughtful observer to this phenomenon cannot help but wonder
whether the problems evidenced in the adjudication of expert disputes reflect deeper problems in
civil litigation more generally. Perhaps one big-picture issue is that courts (and burdens of
proof) are too receptive to litigants presenting novel theories of causation and unproven scientific
theories about which reasonable (and expert) minds disagree. The system in place may
encourage litigation in areas of scientific and other uncertainty where resources would better be
spent researching and engaging in academic discourse outside the stilted confines of a courtroom
battle. Or, it may be that identifying anyone as an “expert” under circumstances of genuine
uncertainty is a fiction.
The purpose of this article is not to explore these and other issues about the current state
of civil litigation. Instead, the focus of this article is to offer a modest (and perhaps temporary)
solution to the immediate problem of forcing jurors to play a role for which they are not well
suited. The first step, we believe, is to consider amending Federal Rule of Civil Procedure 56 to
permit a judge to enter summary judgment on issues framed by conflicting expert testimony.
Although there are several ways this could be done, we offer as a starting point the following
one-sentence addition to the end of Rule 56(c):
For purposes of this Rule, a question whose resolution depends upon conflicting or opposing expert testimony may be resolved as a question of law.
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Rule 56(c), as written, allows a judge to grant summary judgment, ending a case before
trial, only where a party can show that there is no “genuine issue as to any material fact” and that
the party is entitled to a judgment “as a matter of law.”55 The judge can issue summary
judgment with respect to an entire claim or to particular issues, allowing others to be tried before
a jury.56 Because collisions of expert testimony are not deemed to be questions “of law,” expert
disputes generally fall outside the accepted (and limited) scope of Rule 56(c)’s application. This
is true even though expert disputes are dissimilar to questions “of fact,” the only other
classification traditionally recognized at common law.57
But, there is no reason why expert disputes must be treated in the same manner as
questions of fact and excluded from consideration and resolution on summary judgment.58 As
explained above, there is no functional reason to allocate conflicting expert testimony to juries.
Resolving such conflicts does not play to the jury’s traditionally heralded strengths: evaluating
the honesty of witnesses, sensing the “mainsprings of human conduct,”59 and applying
community standards.60 Evaluating the “credibility” of expert witnesses bears no relation to
determining whether they are lying. In many cases, evaluating the credibility of expert testimony
involves evaluating the validity of the conclusions reached from shared data: studies, reports,
journal articles, as well as records from the specific case. It is rarely even alleged that an expert
is simply lying about his conclusions. The kind of credibility for which expert testimony must
be evaluated is far removed from questions of whether an alibi is believable or whether a witness
really saw the car go through the red light. Juries have traditionally been thought to be good at
determining those questions. There is no reason to believe that these abilities transfer to deciding
55 FED. R. CIV. P. 56(c). 56 FED. R. CIV. P. 56(d). 57 Experts form their opinions by applying their specialized knowledge to the circumstances of the particular case—in the form of, inter alia, data, reports, photographs, and eye-witness testimony. These circumstances are facts and this evidence demonstrates facts (or a version of the facts). The law is clear, however, that an expert report cannot be used to prove facts that are not proved by some other evidence. E.g., In re Citric Acid Litig., 191 F.3d 1090, 1102 (9th Cir. 1999). When experts disagree in their final opinions, they are typically disagreeing about either their interpretation of the facts or about the appropriate sources of specialized knowledge to apply. An expert’s interpretations or the theories he uses to form an opinion are different in kind from testimony about what was observed in a case. Even when the latter type of facts are public record or stipulated, experts often disagree on their interpretation. 58 Nor are expert disputes “mixed questions of law and fact,” because in most cases, there is no matter of legal interpretation involved. 59 Comm’r of Internal Revenue v. Duberstein, 363 U.S. 278, 289 (1960). 60 Markman v. Westview Instruments, 517 U.S. 370, 389-90 (1996).
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disputes of theory between opposing experts. Community standards and moral judgments about
human conduct are equally irrelevant to such determinations.
Similarly, nothing in the drafting of Rule 56 suggests a reason why “battles of experts”
cannot be resolved on summary judgment. It is not at all surprising that complex expert
testimony would have been left outside the bounds of Rule 56 when it was adopted in 1938.61
The rules of civil procedure were designed for an era in which litigation was less complicated, to
deal with the problems of that time.62 The expert testimony that was presented concerned
matters that were not wholly foreign to juries. Advances in science and other expertise that have
necessitated increasing use of expert testimony also necessitate modern rules to handle it.
Nor would allocating conflicts between experts to judges conflict with the Seventh
Amendment’s guarantee to a trial by jury. At the outset, the guarantee is limited to “suits at
common law,” and the Supreme Court has viewed the scope of the right as limited to causes of
action that were either tried at law at the time of the Nation’s founding or are analogous to such
causes of action.63 Many important cases involving expert testimony such as toxic tort, products
liability, and antitrust actions are not analogous to actions tried 1791, and have come about only
more recently. Moreover, even if the cases themselves would be entitled to a jury trial, the
Supreme Court has considered the Seventh Amendment status of particular issues in a case
individually.64 Determining causation based on factors outside the jury’s understanding was
unknown in 1791, so the Seventh Amendment provision of a jury trial should not apply to the
most important issues that expert testimony concerns.
Perhaps the best objection to amending Rule 56 to permit judicial resolution of expert
disputes is not that it is prohibited by any external source of law or impracticable, but that it
provides only a half solution to the problem by removing battles of experts from the decision-
making process of the lay jury and moving it to judges who are, in most cases, experts only in
the law and generalists as to all other subjects. To this, we say that our proposal is, at the very
least, a positive and meaningful step in the right direction. This is because, as a functional
61 FED. R. CIV. P. 56 advisory committee’s notes 1937. 62 See Richard A. Epstein, AEI-Brookings Joint Ctr. for Regulatory Studies, Motions to Dismiss Antitrust Cases: Separating Fact from Fantasy 1-4, Related Publication 06-08 (Mar. 2006). 63 See Paul S. Miller & Bert W. Rein, Wither Daubert? Reliable Resolution of Scientifically-Based Causality Issues in Toxic Tort Cases, 50 RUTGERS L. REV. 563, 580-83 (1998); Edith G. Henderson, The Background of the Seventh Amendment, 80 HARV. L. REV. 289, 289-91 (1966). 64Markman, 517 U.S. at 377.
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matter, judges have clear advantages over juries in reaching sound results when deciding
between conflicting expert testimony.
First, the chief advantage judges possess is time. They become familiar with the issues in
a case long before a jury is impaneled. Judge Fallon in the Vioxx litigation has been dealing
with the scientific issues in question since February of 2005. Second, it is no secret that judges
often take as much time as they like to rule on a motion. Jurors have only a few days or weeks at
trial and then as long as they deliberate—two and a half days in the first federal Vioxx trial, often
less—to decide all the issues in dispute. Third, judges also have resources available that a jury
does not have. Training and reference materials are available to help them understand the major
issues in analyzing technical evidence. Judges have staff and clerks who can provide assistance.
They can also call neutral experts to aid them in their understanding of scientific issues, as
Justice Breyer and Judge Posner recognize.65
Even if, as some argue, judges are not much better than juries in understanding scientific
issues,66 it makes sense to have judges evaluate expert testimony. If training and reference
materials are now inadequate to prepare judges, it is feasible to increase them to better equip
judges to make decisions on expert testimony. The jury cannot be given such training or
materials in advance. Judges are a relatively stable group of decision-makers. They can benefit
from the cumulative effects of training, materials, and repeated trials calling for adjudication of
conflicts between experts. The jury is designed to be a one time use body. Putting the decisions
in the hands of judges is an improvement over juries, but does not, of course make the theoretical
questions easy or the science less complex. The goal of reform is not that judges be turned into
scientists. Nevertheless, conflicts between experts are a significant and enduring feature of the
legal system, and judges happen to be the best available actors to resolve them.
Moreover, judges can better adjudicate competing expert testimony because they have
daily experience using related skills. A judge’s profession consists largely of examining and
considering the application of general premises to a specific situation, settling disputes between
parties who argue for different conclusions from the same set of precedents. These skills can
transfer to the task of evaluating expert testimony. Most obviously, judges evaluate all evidence,
65 FED. R. EVID. 706. 66 Neil Vidmar & Shari Seidman Diamond, Juries and Expert Evidence, 66 BROOK. L. REV. 1121, 1167-74 (2001).
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including expert testimony, in bench trials. Even in jury trials, judges sometimes resolve issues
analogous to expert witness disputes. For instance, the Supreme Court has held that judges are
better suited than juries to construe patent language in infringement cases, in part because of the
highly technical nature of patents and the judge’s superior ability to determine whether an
expert’s proposed construction is consistent with the patent’s internal logic.67 Judges also from
time to time weigh competing expert testimony in determining whether common questions
predominate in order to certify a class action.68 Even in making the decision to admit or exclude
expert testimony under Rule 702, judges may make determinations about whether the analytical
gaps between the data offered and the expert’s conclusions are too great.69 It is unclear why the
judge would be equipped to determine that an analytical gap is too great to admit evidence, but
the jury would be better placed to decide closer questions. At bottom, judges have not been
denied the responsibility for deciding expert disputes because they are not able. They have been
denied this role because Rule 56 has not, by its text, permitted it.
We concede that to maximize the effectiveness of any amendment to Rule 56, other
changes may be needed. Procedures could be established for routinely assessing fees for court-
appointed experts, to encourage their more frequent use. Judges could receive more materials
and training on evaluating expert evidence. Ideally, changes in Rule 56 would only be part of
modernizing the means of handling expert evidence of increasing complexity and volume, or the
interim solution until a more drastic overhauling of certain types of cases based on scientific
uncertainty can be accomplished. But, even without additional steps, reallocating the resolution
of expert conflicts to judges would be an improvement over allocating them to juries.
A simple change instructing judges to grant summary judgment as to any expert dispute
where no underlying factual issues are in dispute, or the expert issue can be resolved without
resolving any disputed fact issues, would make the use of expert evidence more rational and
consistent. Such a change would not necessarily be to the particular benefit of defendants or
plaintiffs. Like all summary judgment decisions, decisions on the merits of expert testimony
would likely be reviewable de novo by appellate courts, rather than under the deferential abuse of
discretion standard. Parties on either side would be more able to obtain review of adverse
67 Markman, 517 U.S. at 387-89. 68 Heerwagen v. Clear Channel Commc’ns, 435 F.3d 219, 232-33 (2d Cir. 2006). 69 Joiner, 522 U.S. at 146.
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judgments than they now can for evidentiary rulings or jury verdicts. Allowing judges to rule on
expert testimony at summary judgment would reduce the volatility and uncertainty in many cases
and reduce the vast expense associated with jury trials.
Finally, such a change would accomplish perhaps the less obvious goal of restoring the
jury to its proper and well-respected role as the superior adjudicator of questions of fact. It is
when juries step outside of this role—irrationally, errantly, or by design—that the public, as
observers and as parties to litigation, questions the integrity of the jury system. The benefits that
would redound to the jury system and to the legal system as a whole, and ultimately to society,
from such a modest proposal cannot be ignored simply because a modification of Rule 56 may
not provide the complete solution.
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