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Expert Testimony
by James B. Gottstein, Esq.
November, 2002

I am no expert on evidence and expert testimony by any means, but I do know the basic principles and am aware of some of the big cases. 

The big, relatively recent case, is Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).  The court's syllabus states in pertinent part:

[U]nder [Evidence] Rule 702, the trial judge, pursuant to Rule 104(a), must make a preliminary assessment of whether the testimony's underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue. Many considerations will bear on the inquiry, including whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate, and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community. The inquiry is a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate.

An even more recent case is Kumho Tire Co. v. Carmichael, No. 97-1709, decided in 1999.

The Daubert factors do not constitute a definitive checklist or test, id., at 593, and the gatekeeping inquiry must be tied to the particular facts, id., at 591. Those factors may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of his testimony. Some of those factors may be helpful in evaluating the reliability even of experience-based expert testimony, and the Court of Appeals erred insofar as it ruled those factors out in such cases. In determining whether particular expert testimony is reliable, the trial court should consider the specific Daubert factors where they are reasonable measures of reliability.

However, these cases don't really give the sense of how one can systematically examine the basis of a proposed expert's testimony and discredit it.

Links

• "Suicide and Neuropsychiatric Adverse Effects of SSRI Medications: Methodological Issues," Scientific Symposium,  Marriott @ the Philadelphia Airport, Friday, October 4, 2002 by Ronald Wm. Maris, Ph.D., discusses evidentiary issues under the Daubert standard respecting SSRIs.
• The Science of Forensic Psychiatry and Psychology [published in 2 Psychiatry, Psychology and Law, April 1995, at 75-80] by David E. Bernstein, Esq.
• Challenging the Admissibility of Mental Expert Testimony, January, from The Practical Litigator, American Law Institute-American Bar Association Committee On Continuing Professional Education, January, 2002, by Marc Sageman, M.D., Ph.D.
• The Article The Judge as Gatekeeper:  Daubert and the Admissibility of Scientific Evidence may be helpful in understanding the evidentiary predicates of expert testimony.  In other words, what are the rules for when an "expert's" opinion should be admitted into evidence because it is based on scientifically proven methods.
• ExpertPages.com has a Using Experts Webpage describing the process.
• Expert Psychiatrists and Comments on Witness Credibility by Pamela K. Sutherland and Delia J. Henderson
•  A critique of "Brainwashing" Evidence in Light of Daubert: by By James T. Richardson and Gerald Ginsburg (University of Nevada, Reno); from: Helen Reece (ed.) (1998), Law and Science: Current Legal Issues, Vol. 1. Oxford University Press, pp. 265-288.
• The Daubert Tracker
• Daubert on the Web

Books/Treatises

Mental Disability Law -- Civil and Criminal, 2nd Edition by Michael L. Perlin

Coping with psychiatric and psychological testimony by Jay Ziskin

Last Modified 5/2/2011 (but not updated)
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