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Judge and Attorney Experiences, Practices, and Concerns Regarding Expert Testimony in Federal Civil Trials

Carol L. Krafka, D. Dean P. Miletich, Joe S. Cecil, Meghan A. Dunn, Molly Johnson
January 1, 2002

This is an expanded version of Expert Testimony in Federal Civil Trials: A Preliminary Analysis (2000). In 1998, the Federal Judicial Center surveyed federal judges about their experiences with expert testimony in civil cases. Judges answered specific questions about their most recent relevant civil trial, as well as questions drawing on their overall experience with expert testimony in civil cases. The Center conducted a similar survey of judges in 1991, shortly before the Supreme Court issued a ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Preliminary analysis of the aggregated data has focused on (1) comparing judges' experiences with expert testimony before and after Daubert and (2) exploring the current concerns of judges regarding expert testimony in civil cases. Additional data have since been collected from attorneys in the trials described in the 1998 survey. Preliminary findings include the following:

  • Experts testified most frequently in tort cases.
  • Medical and mental health experts were the most common broad category of testifying experts, although economists were the single most frequent specific type of expert. Experts from scientific specialties testified in only a small proportion of cases.
  • Judges were more likely to scrutinize expert testimony before trial and less likely to admit expert testimony in 1998 than in 1991. Attorneys report filing motions in limine, challenging the admissibility of expert testimony, more frequently after Daubert.
  • The two most common problems cited by judges were experts who were not objective and the excessive expense of expert testimony.
  • In general, judges' assessments of problems with expert testimony did not differ greatly from 1991 to 1998.

Note: Excerpted from Psychology, Public Policy, and Law 2002, vol. 8, no. 3, pages 309-322.