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The Supreme Court, based on three decisions over the past decade, now requires judges to examine the underlying basis of all testimony to ensure that only expert testimony supported by valid methods if inquiry is introduced as evidence in litigation. Under these standards, expert testimony in the courtroom, including medical testimony, is supposed to meet the same standards of intellectual rigor that professionals use outside the courtroom. If expert testimony does not meet this standard, the courts are expected to exclude the testimony and may dismiss the case without trial. In this article, the authors review cases that illustrate inconsistencies in the courts' approach to medical expert testimony. They argue that while there may be good reasons to require evidence of a higher quality and quantity that a physician would require in ordinary clinical decision making, as some courts have done, this practice is not faithful to the mandate of the Supreme Court. -- -- Reprinted from JAMA, September 18, 2002--Volume 288, No. 11 (288 JAMA 1382).
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.
This report to the Judicial Conference Committee on Court Administration and Case Management describes two different types of independent panels used in the silicone gel breast implants litigation. The use of such panels of appointed experts represents a marked departure from the traditional means of presenting and considering testimony. This report describes these expert panels in sufficient detail to permit others to understand the procedures that were used, the benefits that resulted, and the problems that arose. A similar version of this report was originally delivered to the Committee in November 1999.