A Continuing Empirical Analysis of the Admissibility of Expert Testimony: Investigating the Effects of Kumho Tire v. Carmichael

University Of Nebraska-Lincoln, Lincoln NE

Investigators

Abstract

The Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals (1993) determined the standards under which scientific evidence may be considered by courts and juries in all federal cases and has been adopted by many states. Such scientific evidence is involved in a range of cases including medical malpractice, criminal prosecution, and toxic environmental pollution. The Court's recent decision in Kumho Tire Co. v. Carmichael (1999) extended Daubert's standards to all types of expert testimony. Technical and specialized testimony, which potentially includes everything from the proper construction of tires to psychiatry and banking, now fall under this standard. Because specialized and technical experts cover such a broad range, the Kumho decision has the potential to exert a powerful influence on the nature and extent of evidence that juries and courts hear and to influence what types of cases will be tried successfully. The present research extends prior studies of the effects of the Daubert decision to an investigation on the effects of Kumho. To date, the discussion of expert testimony in almost 3000 federal and state appellate court decisions has been evaluated through coding by the researchers of 126 aspects of those decisions. The present research will examine an estimated 2700 additional federal and state appellate court decisions which address the admissibility of expert testimony. Among the major questions to be addressed are: 1) will Kumho lead to an increased or a decreased exclusion of non-scientific expert testimony? 2) how will the courts distinguish between testimony which is scientific and non-scientific? 3) which domains of expert testimony will be most affected by the decision? 4) will Daubert continue to have an impact on the admissibility of expert testimony? Empirical investigation of these effects will inform potential litigants, the legal community, and the community of experts, both scientific and non-scientific, on how courts are responding to expert evidence in the aftermath of Kumho.