That Is Not All There Is: Enhancing Daubert Exclusion by Applying Ordinary Witness Principles to Experts
34 Pages Posted: 10 Jul 2007
Now that more than a decade has passed since the U.S. Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), it has become clear that the decision, though certainly important, was not quite the panacea for faulty expert testimony that many of us first thought it would be. As the first part of this article notes, even after Daubert, which directed trial courts to take seriously a party's motion to exclude faulty expert testimony, there are still many instances where experts testify to incorrect opinions. This article observes that, in each case where opposing experts testify to directly opposite opinions about an issue of historical fact, one of the experts must be wrong. It argues that, in any case of opposing expert testimony, we expect the jury to determine which of the experts is wrong, so we should give the jury as much information as reasonably possible to help it determine which expert is wrong and which is right. This article recommends that courts end their tendency to give expert witnesses preferred treatment, as vis-a-vis fact witnesses, under civil procedure (discovery), professional responsibility, and evidence law. Given the substantial potential for retaining attorneys to influence the testimony of their expert witnesses, courts should provide the jurors who must evaluate the resultant testimony with at least as much information about the formation of expert testimony as they do about the formation of fact witness testimony. To give the jurors the information they need to sift the wheat from the chaff in expert testimony, courts in civil cases should: (a) permit attorneys to contact opposing retained expert witnesses ex parte; (b) require disclosure and discovery regarding all communications between attorneys and the expert witnesses they retain; (c) provide for automatic disclosure of all drafts of expert witness reports that have exchanged hands between experts and the attorneys who retained them; (d) allow a party to introduce the testimony of any person designated as an expert by any party; and (e) admit bias testimony about the original retention of the expert by a party other than the one calling the expert at trial, when that is the case. By adopting each of these recommendations, courts would treat experts as they do fact witnesses and thereby give jurors the same sorts of information about the formation of expert testimony, including the influence of attorneys on that testimony, that they receive about the formation of fact witness testimony.
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