Amended Rule 702 and Kumho Tire

The second example offered by Prof. Bernstein in support of his thesis that amended Rule 702 is more stringent than the Daubert trilogy involves Kumho Tire.

The main problem with Bernstein’s second example is that it proceeds largely by assuming what it sets out to prove: the supposed leniency of Kumho Tire versus the alleged stringency of amended Rule 702. Bernstein first asserts that Kumho Tire “seems to give district courts almost infinitely wide discretion in how to determine the admissibility of experience-based testimony.” To support that venturous assertion, Bernstein cites only Justice Breyer’s example of a perfume sniffer who claims an ability to distinguish among 140 different odors. According to Bernstein, the Kumho Tire opinion contemplates that the perfume sniffer “is to be qualified based solely on experience and ‘whether his preparation is of a kind that others in the field would recognize as acceptable.’” Bernstein contrasts this supposed licentiousness with what Bernstein calls Rule 702’s “absolute requirement that all expert testimony be ‘the product of reliable principles and methods,’ [and] that courts must ensure that ‘the witness has applied the principles and methods reliably to the facts of the case.’” The implication is that amended Rule 702 would test the perfume sniffer’s testimony by some more stringent criteria than the Kumho Tire opinion applied.

In our view, however, the actual Kumho Tire opinion is not remotely so licentious as Bernstein suggests, nor do we think amended Rule 702 is so stringent as he may suppose. Let us begin with the perfume sniffer – an example offered by Justice Breyer in the course of rejecting the contention that the so-called “Daubert factors” are inapplicable in gauging nonscientific testimony. Here is the passage at issue:

At the same time, and contrary to the Court of Appeals’ view, some of Daubert’s questions can help to evaluate the reliability even of experience-based testimony. In certain cases, it will be appropriate for the trial judge to ask, for example, how often an engineering expert’s experience-based methodology has produced erroneous results, or whether such a method is generally accepted in the relevant engineering community. Likewise, it will at times be useful to ask even of a witness whose expertise is based purely on experience, say, a perfume tester able to distinguish among 140 odors at a sniff, whether his preparation is of a kind that others in the field would recognize as acceptable.

We must therefore disagree with the Eleventh Circuit's holding that a trial judge may ask questions of the sort Daubert mentioned only where an expert “relies on the application of scientific principles,” but not where an expert relies “on skill- or experience-based observation.”

Manifestly, the claim that it may be “useful” to make a certain inquiry about a perfume sniffer’s “preparation” (whatever Justice Breyer may have meant by that) does not equate to announcement of a legal test that would make the perfume sniffer’s testimony admissible “solely” as a function of whether other perfume sniffers respect the witness’s training, ability, or approach (though surely the perfume sniffer’s failure to satisfy standards promulgated by the International Perfume Sniffers’ Guild would be a potentially negative factor). Nor does the balance of the Kumho Tire opinion announce any such test. Quite the contrary, the Kumho Tire opinion repeatedly and explicitly rejects the position that experience-based testimony should be generally exempt from the kind of gatekeeping scrutiny prescribed in Daubert. It likewise rejects the position that the standards of rigor prevailing in the expert’s discipline are automatically sufficient to warrant admissibility – for as Justice Breyer takes pains to note, the discipline itself may lack reliability.

What the Kumho Tire opinion does do is recognize that no general formula can be stipulated in advance about what particular indicia of reliability may be germane to testimony from different nonscientific disciplines – something that was already implicit, perhaps, in the Daubert Court’s conclusion that no such universal formula could be found even for scientific testimony.

Kumho Tire’s rejection of a formulaic litmus test has never been accepted cheerfully by people who feel that expert evidence is admitted too promiscuously. And those people are not entirely without a point. It is true, in fact, that experience-based testimony sometimes relies on acquired abilities that may verge on the ineffable. That can make it difficult to force the reduction of the expert’s testimony to the kind of discursively argumentative format of which lawyers are notoriously fond, which in turn can make it difficult to frame a Daubert critique, or (perhaps) even to cross-examine the witness effectively. (We don’t know much about perfume sniffing, but we can well imagine the frustration of narcotics defendants trying to challenge a probable cause determination resting on nothing more substantial than the inarticulate behavior of a drug-sniffing canine.)

Those are problems, mind you, whose prevalence it would be easy to exaggerate. The actual Kumho Tire decision, for example, involved not a perfume sniffer, but an engineer’s opinion on the cause of a tire failure. In upholding the trial court’s exclusion of the testimony, the Supreme Court found itself conducting no struggle to tease articulable content from an ineffable record. The record, in fact, was so substantial and discursive that even the Supreme Court’s brisk summary of the key evidentiary information has a decidedly soporific quality -- one rivaled, perhaps, only by posts at this blog. That record permitted not only an assessment that the expert’s theory lacked general acceptance in his field, but also a finding that it lacked support in the literature, as well as an evaluation of its analytical gaps. In practice, rational analysis did not find itself lacking for toeholds.

It may be conceded, for all that, that Kumho Tire probably left trial courts with less in the way of concrete guidance for experience-based expert testimony than Daubert had provided for scientific testimony. But whatever might be said about the failure of Kumho Tire to provide a handy, one-size-fits-all solution to the general problem of testing nonscientific testimony for reliability, we think it’s bold to claim that the amendments to Rule 702 did any better. Indeed, there’s no good reason, in our view, to think they did anything different. Certainly the Kumho Tire Court saw nothing in those amendments (then in proposed draft form) to undercut the Court’s reasoning or holding; it affirmatively cited a preliminary draft of the amendments for the proposition that testimony from experts of all stripes should be scrutinized to determine whether the principles and methods they employ “have been properly applied to the facts of the case.” And certainly the amendments’ drafters did not see themselves as correcting any errors or deficiencies in Kumho Tire. Quite the reverse, the Advisory Committee Notes to the 2000 amendments cited Kumho Tire in support of their statement that “[i]n certain fields, experience is the predominant, if not sole, basis for a great deal of reliable expert testimony.” Those same Advisory Committee Notes, by the way, quoted Justice Breyer’s discussion of the perfume sniffer with approval.

Where does this leave us? No doubt the requirements of Rule 702 are “absolute” in the sense that they are formulated in the imperative format native to rules, as opposed to the more discursive style of judicial opinions. But it would be specious to reason from that mere difference in form to a difference in content, and there is little other evidence to suggest that any difference in content was stated or intended, when Rule 702 was amended in 2000. Those who believe our system of civil litigation has run amok because of overly permissive rules on expert testimony might have preferred amendments with more ambition. They might have preferred a new, canonical, hyper-restrictive 84-word rule, intended to displace all the permissive mumbo-jumbo that judges had written before, and through which all testimony pretending to the status of specialized “knowledge” could universally be tested, henceforth, for validity. Such an ambition would arguably betoken a species of epistemological arrogance that philosophers and scientists have long since shown enough wisdom and intellectual humility to abandon. But that, of course, would never stop the lawyers.

Happily, however, the lawyers haven’t promulgated any such rule yet. In its current form, Rule 702 rests fundamentally on a set of earlier judicial decisions -- decisions, when read carefully, that show deep respect for the complex and variegated texture of human knowledge. Without reference to those earlier judicial opinions, the amended rule would, in fact, be virtually unintelligible. It’s not that the rule overturned those precedents. The rule distills and embodies them, and whoever would know the meaning of the rule must look to those precedents for its proper elucidation.