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  •   Trial Judges Told to Screen Experts

    Supreme Court

    By Joan Biskupic
    Washington Post Staff Writer
    Wednesday, March 24, 1999; Page A2

    The Supreme Court yesterday enhanced the power of judges to screen out what they consider dubious expert testimony in medical malpractice, defective product and other personal injury disputes.

    By a unanimous vote in a case that addresses the so-called battle of the experts, the court ruled that trial judges must ensure that testimony from all experts is relevant and reliable before it reaches a jury. The ruling expands the breadth of a 1993 decision that set rules for "scientific" evidence. The court now requires that any expert witness, scientific or otherwise, be scrutinized before testifying.

    Writing for the court, Justice Stephen G. Breyer said judges should "make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor" required in the expert's "relevant field." He added, however, that judges have great leeway in determining whether an expert's methods and conclusion are sound.

    In a pithy concurrence, Justice Antonin Scalia observed that the point of the judge's discretion is to exclude "expertise that is fausse and science that is junky."

    The widespread use of expert witnesses in civil cases has prompted numerous complaints about "junk science," dueling experts and the manipulation of jurors. Frequently a judge's decision on whether to allow a case to proceed or a jury's verdict can turn on whether or not an expert witness was convincing. Underscoring the high stakes for businesses and the people who sue them, dozens of manufacturers, insurance groups, engineers, scientists, trial lawyers and academics submitted "friend-of-the-court" briefs.

    The Supreme Court's ruling endorsed a trial judge's decision to block testimony from a tire expert employing questionable methodology who claimed that a manufacturing defect caused a fatal 1993 blowout on an Alabama highway. After the right rear tire of the minivan driven by Patrick Carmichael blew out, the vehicle flipped over, killing one person and injuring seven others in the Carmichael family.

    Breyer agreed that the trial judge was right to doubt that an engineer hired by the Carmichaels could reliably claim that a manufacturing defect in the tire, which was more than five years old and inadequately repaired, caused the blowout. That testimony was crucial to the Carmichael family's case and after the judge excluded it, the judge summarily ruled for the manufacturer, Kumho Tire Co.

    The 11th U.S. Circuit Court of Appeals reinstated the Carmichaels' case, saying that the tire testimony was not covered by the guidelines dealing with scientific testimony and thus should have been presented to a jury.

    Yesterday's high court reversal, while favoring Kumho Tire over the Carmichaels, nonetheless offered something for advocates on both sides of the broader debate.

    Lawyers for manufacturers praised the expanded "gatekeeper" role for judges as a significant step toward ensuring that jurors do not hear, and subsequently rely on, untrustworthy expert testimony.

    Robert P. Charrow, representing a group of manufacturers and others favoring limits on lawsuits, said the court's guidelines would exclude methods that are not tried and true, as well as questionable conclusions. "Basically what the Supreme Court has been trying to do is prevent experts from testifying that the Earth is flat or that we can predict the future using astrology," he said.

    On the other hand, trial lawyers focused generally on language in Breyer's opinion allowing judges considerable leeway in looking at experts' credentials and rejecting a more rigid approach used by many lower court judges after the 1993 ruling that plaintiffs' lawyers said hurt their cases.

    "If the courts read this as an instruction from up above to use some common sense and flexibility, that's going to help us," commented Jeffrey Robert White of the Association of Trial Lawyers of America.

    Justice John Paul Stevens agreed with the rest of the Supreme Court in Kumho Tire Co. v. Carmichael on the standards for all expert testimony, but he dissented in the part of the Alabama case that endorsed the trial judge's exclusion of the tire expert, saying the dispute should be returned to lower courts for their reconsideration.

    © Copyright 1999 The Washington Post Company

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