The attached material is posted on regulation2point0.org with permission.

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.

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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”).

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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.