Want to Put on an Expert? Go to Hill
Regardless of whether you think the Mississippi Supreme Court's treatment of Miss. Rule of Evidence 702 in Thursday's Hill v. Mills decision was correct, one can't help but conclude that it places a big, big land mine in front of trial litigants.
Among other issues, the Court held that a plaintiff's expert was not properly qualified to offer expert testimony because, ultimately, his conclusions were challenged by an opposing expert. The facts were more complicated than just that, of course (as they always are). The expert in this case offered a medical opinion with no available support in academic literature, and his opinion was contradicted by a defense expert who claimed the support of a hoard of treatises. The plaintiff's expert offered no retort, and the Court therefore held 7-2, as a matter of law, that the plaintiff's expert could not testify.
From page 17 of the Court's opinion:
We restate for emphasis that, when the reliability of an expert’s opinion is attacked with credible evidence that the opinion is not accepted within the scientific community, the proponent of the opinion under attack should provide at least a minimal defense supporting the reliability of the opinion. The proponent of the expert cannot sit on the side lines and assume the trial court will ignore the unrebutted evidence and find the expert’s opinion reliable. Were we automatically to allow introduction of expert opinions which are based upon nothing more than personal experience in cases where those opinions are contradicted in the scientific literature, we would effectively render Rule 702 and Daubert a nullity.
Hill at ¶41 (citations omitted).
This is a case with bad facts, but fundamentally, my problem with the decision is that it wades (if not swims neck-deep) into the merits of the expert's opinion. Clearly he was inadequately prepared for the oncoming attack toward his conclusion. But if, as Justice Chandler argues in dissent, an expert is adequately qualified and offers an opinion based on the experience warranting that qualification, then the question of whether he's a quack is a question that should be left to the jury.
More fundamentally, though, the case seems to introduce what Justice Chandler calls a "burden-shifting scheme upon Daubert's reliability prong." And that's the biggest problem with this ruling. As a matter of law, Rule 702 doesn't (or, at least, it didn't) impose on courts the duty to weigh conflicting testimony and to decide whether one witness' testimony invalidates another's. That's a basic jury duty.
So, any crackpot should be able to get on the stand and testify regardless of the ridiculousness of their theory? The court asked for SOMETHING to back up the P's expert, and the attorney just stood there. Bad legal work will not result in favorable law.
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Certainly not. But for Rule 702 purposes, the ridiculousness of the expert's opinion is the concern of the jury, not the court. If the witness is "qualified as an expert by knowledge, skill, experience, training, or education," then he's an expert. Period. And if the other side can put on a more convincing expert with testimony supported by more convincing expertise, then they ought to be able to win. But the ridiculousness of an expert's opinion is an issue of fact, not law.
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"But for Rule 702 purposes, the ridiculousness of the expert's opinion is the concern of the jury, not the court."
See, I think not. Do a Westlaw search on (Daubert /s gatekeeper). Before the expert can get to the jury, the trial court is required to test whether the expert meets certain minimum requirements.
As the MSSC held, correctly I think, leaving it up to the jury is hardly distinguishable from abandoning Daubert and going back to Frye. I would want to hear more about why that's mistaken before I decided the MSSC got this one wrong.
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Not to pile on, but "if the witness is qualified, he's an expert" is not sufficient as a characterization of Rule 702:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) their testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Will refers to the first part of the rule without attending to the "if" clause, which requires that 3 criteria specific to the *opinion*, not the expert, be met.
IOW, legitimate differences are for the jury, but baseless opinions cannot get to the jury. And where peer-reviewed literature is ample and one-sided, mere gruff about "my 25 years as a physician" is not enough to contradict that literature.
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For what it's worth, I work down the street from seven Supreme Court justices that would agree with you. And I do too, to the extent that you're arguing that a would-be expert's opinion must meet certain minimal requirements ("indicia of reliability," to borrow a phrase). And so would Justice Chandler, I think.
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As the Court went to some length to point out, the issue wasn't a battle of the experts, it was a threshold question of reliability under the Daubert standard.
Perhaps the opinion is confusing in its references to the defense expert's presenting this, challenging that, etc. The defendant was the one challenging the reliability of the plaintiff's expert, so it wasn't expert v. expert.
For instance, whether the peer-reviewed literature factor is applicable to a case, is going to depend first of all on whether there *is* such a literature. That's what the defense showed -- that a literature exists and does not support the plaintiff's claims. Obviously, the defense can't do that without an expert familiar with the literature, but that's still a threshold issue under Rule 702.
And again, "the question of which expert is more reliable" may be a jury question, but whether an expert is SUFFICIENTLY reliable is clearly NOT a jury question under Rule 702; he "may testify" only if his reliability suffices, and this guy did not come even close.
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Anderson, I read the same opinion you did. I understand that the Court went to some length to try to demonstrate a distinction, and I am wholly unconvinced.
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Okay. So, to understand: the trial court has no "gatekeeper" function under Rule 702 other than to keep out expert evidence that doesn't even *purport* to be grounded in the scientific community? And if the expert says "is too" in response to a challenge, then that's it, the evidence goes to the jury?
The elements (1-3) that I've quoted in the rule go to admissibility, so obviously the jury can't pass upon them.
So it seems to me that your quarrel is not really with the MSSC, but with Rule 702. At least, I haven't seen you offer an interpretation of Rule 702 that explains what those elements (1-3) are doing there.
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At this point, any response would amount to a reiteration of points I've already made. We'll have to agree to disagree.
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Ah well, I'm slow today. Thanks!
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