Using <i>Daubert</i> on Cross-Examination

When one tells lawyers from other jurisdictions that New York has yet to adopt the Daubert approach to determining the admissibility of expert evidence, one is met with raised eyebrows, dropped jaws and the occasional acerbic inquiry of whether travel to New York requires a map or a time machine. Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Yet the enlightenment of Daubert's reliability analysis is beginning to pierce the fog of Luddism that has for so long enveloped the landscape of New York jurisprudence. This article addresses recent indications that Daubert is gaining ground in New York, as well as its current utility as a potent weapon on cross-examination of expert witnesses who are such common fixtures in the domestic relations courtroom.

Reliability Is a Key Issue

Daubert v. Merrill Dow Pharmaceuticals speaks to the evidentiary reliability that must be demonstrated as an essential precondition to admissibility of expert testimony. Whenever any witness, lay or expert, testifies, the key question is whether or not the evidence offered is reliable. When the witness is an expert, such as a forensic evaluator in a custody dispute, the question of reliability takes on a technical edge. Because the expert, unlike the percipient lay witness, is allowed to put forth inferences, conclusions and opinions, reliability analysis requires consideration of several factors to ensure that “the expert's opinion will have a reliable basis in the knowledge and experience of his discipline.”

In Daubert , the U.S. Supreme Court held that admissibility of expert testimony requires a demonstration of evidentiary reliability. The evidence must be shown to be reliable or it ought not to be received. In fact, this objective of demonstrable reliability is the same goal enunciated in Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923), which established the test of general acceptance that still governs in New York. In the oft-quoted language of the U.S. Court of Appeals for the D.C. Circuit:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

Frye v. U.S., 54 App.D.C. 46, 47, 293 F. 1013 (1923).

Succinctly stated, experimental theories, hypotheses and speculations should remain in the laboratory. Only demonstrably valid knowledge should enter the courtroom. Daubert said essentially the same thing, albeit with greater vigor and specificity. On remand to the Ninth U.S. Circuit Court of Appeals, that court summed it up nicely:

Under Daubert , ' we must determine nothing less than whether the experts' testimony reflects 'scientific knowledge,' whether their findings are 'derived by the scientific method,' and whether their work product amounts to 'good science.'

Daubert v. Merrell Dow Pharmaceuticals, 43 F.3d 1311, 1315, on remand, (9th Cir. 1995).

Thus, both Frye and Daubert pursue the same goal of demonstrable reliability. The distinction between the two approaches is the method by which that standard is examined. Under Frye , the court inquires only whether the principles and methods underlying the expert's testimony have gained general acceptance in the relevant scientific community. This effectively delegates the evidentiary gatekeeping task to the very community of experts who have a vested economic interest in seeing their opinions recognized and received by the courts. It is from admissibility, after all, that cottage industries are born. In contrast, Daubert requires the trial judge to assess directly ' without delegation ' whether the standard of evidentiary reliability has been met. To assist trial courts in fulfilling their gate-keeping responsibility, Daubert provided several factors that can be considered in assessing the reliability of expert evidence.

Walking Toward the Light

Even though New York's highest court, the Court of Appeals, has yet to transition fully to the Daubert approach, the multi-factor analysis that Daubert championed has been gaining traction. Daubert has been cited in scores of reported New York decisions, increasingly with a tone of judicial lament that the court remains constrained by the myopic focus of Frye :

Both parties agree that the standard of admissibility for expert testimony in New York which is based on scientific principles or procedures is governed by the 'general acceptance test' set forth in Frye v. United States . New York courts have repeatedly declined to accept the federal standard for admitting scientific evidence established under Daubert v. Merrell Dow Pharmaceuticals . While other states may have adopted this multi-factored analysis to assess expert testimony, New York remains 'a Frye state.' As such, this Court is bound by this precedent.

Gaona-Garcia v. Gould, Sup. Ct.; Bronx Co Gaona-Garcia v. Gould, 31 Misc.3d 1237(A), 932 N.Y.S.2d 760 (Table) (Sup.Ct., Bronx Co., Hunter, J., 2011).

Additionally, even though shackled by the unitary criterion of Frye , many New York trial courts seem to be taking the role of evidentiary gatekeeper more seriously:

This Court also agrees and acknowledges that the principles of fairness and due process embedded in our laws imposes [sic] upon the court the role of gatekeeper in assuring that expert testimony is not only relevant but reliable.

In re Guardianship of Person & Custody of Fait , Family Ct., Bronx Co..

Another trial judge in People v. Oliver (Sup. Ct., Kings Co.) in 2014 observed:

A trial court always has the obligation to ensure that any expert testimony be premised on careful and impartial scientific analysis, and is not required 'to admit opinion evidence that is connected to the existing data only by the ipse dixit of the expert.' In other words, the mere assertion by the proposed expert that she is in fact an expert is not a basis to admit her testimony.

People v. Oliver, 45 Misc.3d 765, 776, 991 N.Y.S.2d 260 (Sup.Ct., Kings Co., Donnelly, J., 2014).

Nor has the Court of Appeals been entirely quiescent. Just last year, in Cornell v. 360 West 51st Street Realty, New York's high court cited Daubert , enumerated its reliability factors and applied some of its concepts, albeit doing so within the framework of a Frye analysis. It burrowed deep into the marrow of scientific inquiry, citing not only the Daubert decision, but also the federal courts' Reference Manual on Scientific Evidence that was compiled in Daubert's wake. Cornell v. 360 West 51st Street Realty, 22 N.Y.3d 762, 9 N.E.3d 884 (2014).

Given the purchase that Daubert seems to be gaining, what is the present-tense lesson for litigators? Simply that Daubert need no longer be regarded as a foreign visitor in New York courtrooms. Lawyers should not hesitate to cite it and argue its concepts in challenging the admissibility of questionable expertise. Further, where the relatively low bar to admissibility is hurdled the reliability factors that Daubert described should be developed on cross-examination to challenge the weight to be afforded the expert's testimony.

Daubert Factors on Cross

Because Frye relies on the unitary factor of general acceptance that, in effect, outsources the gatekeeping role to those who profit from admissibility determinations, dubious expertise may find New York courtrooms more welcoming than those in which the more “exacting standards of reliability” of Daubert are applied. Weisgram v. Marley Co., 528 U.S. 440, 120 S.Ct. 1011 (2000). Effective cross-examination should chill that reception. Though general acceptance opens the courtroom gate, reliability ' or more precisely, the lack thereof ' remains a point of challenge on cross-examination. In other words, although the testimony may be admissible, cross-examination is the crucial check on reliability and testimonial weight.

In Daubert, the court postulated a number of factors that speak to reliability: 1) whether the method has been tested to determine its validity; 2) whether there are standards of performance and whether the error rate is known; 3) whether the method has been subjected to peer review and publication; and 4) whether the method has garnered general acceptance. Each of these factors presents an opportunity to challenge expert testimony on cross-examination.

Let us consider the potential of these factors to demonstrate to the court that the best interest opinions of a custody evaluator should be discounted because they lack reliability. On the issue of whether the underlying principles and methodologies of the evaluation have ever been tested to determine their reliability, a couple of questions will make the point:

Doctor, in reaching your conclusions in this case you used certain techniques or methodologies, correct? Have those techniques or methodologies ever been subjected to empirical testing to determine their accuracy as predictors of a child's best interest?

In fact, no such empirical testing has ever established the accuracy of any particular custody evaluation methodology. Accordingly, there is no known error rate with respect to the method employed by the evaluator on the stand. In the absence of a known error rate, for all the witness knows, he or she may be getting it wrong every single time!

Whether the techniques employed have been subject to peer review and publication is another important reliability issue. Several guidelines have been published by various organizations, such as the Association of Family and Conciliation Courts' Model Standards of Practice for Child Custody Evaluation Association of Family and Conciliation Courts, “Model Standards of Practice for Child Custody Evaluation,” ' 3.1'3.4, Fam Court Rev., Vol. 45, No. 1, January 2007); The American Psychological Association's Guidelines for Child Custody Evaluations in Family Law Proceedings, “Guidelines for Child Custody Evaluations in Family Law Proceedings,” ' 14, Am. Psychol, Vol. 65, No. 9, 863-867 (December 2010); and the American Academy of Child and Adolescent Psychiatry's Practice Parameters for Child Custody Evaluation, J Am Acad Child Adolesc Psychiatry, October 1997. Many evaluators either ignore such guidelines or deviate from them with abandon. That infidelity to published approaches should be identified and exploited on cross-examination and is especially effective in conjunction with the final reliability factor of general acceptance.

Whether the theory or technique has gained general acceptance as scientifically valid within the relevant community continues to be relevant under Daubert, though demoted to factor status rather than sole criterion as is the case under Frye. This offers the cross-examiner a number of opportunities. The American Psychological Association's Guidelines for Child Custody Evaluations in Family Law Proceedings acknowledge that “the profession has not reached consensus about whether psychologists should make recommendations to the court about the final child custody determination.” “Guidelines for Child Custody Evaluations in Family Law Proceedings,” ' 14, Am Psychol, Vol. 65, No. 9, 863-867 December 2010).

In her concurring opinion in People v. Wesley, Chief Judge Judith Kaye noted the crucial role of professional consensus: “The Frye test emphasizes 'counting scientists' votes, rather than on verifying the soundness of a scientific conclusion.' Where controversy rages, a court may conclude that no consensus has been reached.” 83 N.Y.2d 417, 633 N.E.2d 451, 464, 611 N.Y.S.2d 97 (1994).

As noted, many evaluators do not scrupulously follow any of the published guidelines. They often announce, sometimes with a misplaced sense of complacency, that they use an eclectic method that they themselves have contrived over the course of their careers. The key question to ask here is whether they have ever published their idiosyncratic methodology. When the answer is in the negative, as it almost invariably is, the next question is simple: “If your method has never been published, then it has never gained general acceptance in the profession, has it, doctor?” A profession cannot accept that of which it is not aware.

Conclusion

Even though Daubert is not yet the official test for admissibility, it clearly has garnered a position of respect in the courts of New York. Practitioners should continue to urge it as a basis for exclusion of testimony that does not measure up on the reliability scale. And when questionable expertise manages to pass muster under Frye, Daubert's reliability factors should be used to cross-examine the expert and to demonstrate that the testimony ought not to be given weight.

Timothy M. Tippins, a member of this newsletter's Board of Editors, is an adjunct professor at Albany Law School and is on the faculty of the American Academy of Forensic Psychology and on the Affiliate Postdoctoral Forensic Faculty at St. John's University. This article also appeared in The New York Law Journal, an ALM sister publication of this newsletter.

When one tells lawyers from other jurisdictions that New York has yet to adopt the Daubert approach to determining the admissibility of expert evidence, one is met with raised eyebrows, dropped jaws and the occasional acerbic inquiry of whether travel to New York requires a map or a time machine. Daubert v. Merrill Dow Pharmaceuticals , 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Yet the enlightenment of Daubert's reliability analysis is beginning to pierce the fog of Luddism that has for so long enveloped the landscape of New York jurisprudence. This article addresses recent indications that Daubert is gaining ground in New York, as well as its current utility as a potent weapon on cross-examination of expert witnesses who are such common fixtures in the domestic relations courtroom.

Reliability Is a Key Issue

Daubert v. Merrill Dow Pharmaceuticals speaks to the evidentiary reliability that must be demonstrated as an essential precondition to admissibility of expert testimony. Whenever any witness, lay or expert, testifies, the key question is whether or not the evidence offered is reliable. When the witness is an expert, such as a forensic evaluator in a custody dispute, the question of reliability takes on a technical edge. Because the expert, unlike the percipient lay witness, is allowed to put forth inferences, conclusions and opinions, reliability analysis requires consideration of several factors to ensure that “the expert's opinion will have a reliable basis in the knowledge and experience of his discipline.”

In Daubert , the U.S. Supreme Court held that admissibility of expert testimony requires a demonstration of evidentiary reliability. The evidence must be shown to be reliable or it ought not to be received. In fact, this objective of demonstrable reliability is the same goal enunciated in Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923), which established the test of general acceptance that still governs in New York. In the oft-quoted language of the U.S. Court of Appeals for the D.C. Circuit:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

Frye v. U.S. , 54 App.D.C. 46, 47, 293 F. 1013 (1923).

Succinctly stated, experimental theories, hypotheses and speculations should remain in the laboratory. Only demonstrably valid knowledge should enter the courtroom. Daubert said essentially the same thing, albeit with greater vigor and specificity. On remand to the Ninth U.S. Circuit Court of Appeals, that court summed it up nicely:

Under Daubert , ' we must determine nothing less than whether the experts' testimony reflects 'scientific knowledge,' whether their findings are 'derived by the scientific method,' and whether their work product amounts to 'good science.'

Daubert v. Merrell Dow Pharmaceuticals , 43 F.3d 1311, 1315, on remand, (9th Cir. 1995).

Thus, both Frye and Daubert pursue the same goal of demonstrable reliability. The distinction between the two approaches is the method by which that standard is examined. Under Frye , the court inquires only whether the principles and methods underlying the expert's testimony have gained general acceptance in the relevant scientific community. This effectively delegates the evidentiary gatekeeping task to the very community of experts who have a vested economic interest in seeing their opinions recognized and received by the courts. It is from admissibility, after all, that cottage industries are born. In contrast, Daubert requires the trial judge to assess directly ' without delegation ' whether the standard of evidentiary reliability has been met. To assist trial courts in fulfilling their gate-keeping responsibility, Daubert provided several factors that can be considered in assessing the reliability of expert evidence.

Walking Toward the Light

Even though New York's highest court, the Court of Appeals, has yet to transition fully to the Daubert approach, the multi-factor analysis that Daubert championed has been gaining traction. Daubert has been cited in scores of reported New York decisions, increasingly with a tone of judicial lament that the court remains constrained by the myopic focus of Frye :

Both parties agree that the standard of admissibility for expert testimony in New York which is based on scientific principles or procedures is governed by the 'general acceptance test' set forth in Frye v. United States . New York courts have repeatedly declined to accept the federal standard for admitting scientific evidence established under Daubert v. Merrell Dow Pharmaceuticals . While other states may have adopted this multi-factored analysis to assess expert testimony, New York remains 'a Frye state.' As such, this Court is bound by this precedent.

Gaona-Garcia v. Gould, Sup. Ct.; Bronx Co Gaona-Garcia v. Gould, 31 Misc.3d 1237(A), 932 N.Y.S.2d 760 (Table) (Sup.Ct., Bronx Co., Hunter, J., 2011).

Additionally, even though shackled by the unitary criterion of Frye , many New York trial courts seem to be taking the role of evidentiary gatekeeper more seriously:

This Court also agrees and acknowledges that the principles of fairness and due process embedded in our laws imposes [sic] upon the court the role of gatekeeper in assuring that expert testimony is not only relevant but reliable.

In re Guardianship of Person & Custody of Fait , Family Ct., Bronx Co..

Another trial judge in People v. Oliver (Sup. Ct., Kings Co.) in 2014 observed:

A trial court always has the obligation to ensure that any expert testimony be premised on careful and impartial scientific analysis, and is not required 'to admit opinion evidence that is connected to the existing data only by the ipse dixit of the expert.' In other words, the mere assertion by the proposed expert that she is in fact an expert is not a basis to admit her testimony.

People v. Oliver , 45 Misc.3d 765, 776, 991 N.Y.S.2d 260 (Sup.Ct., Kings Co., Donnelly, J., 2014).

Nor has the Court of Appeals been entirely quiescent. Just last year, in Cornell v. 360 West 51st Street Realty, New York's high court cited Daubert , enumerated its reliability factors and applied some of its concepts, albeit doing so within the framework of a Frye analysis. It burrowed deep into the marrow of scientific inquiry, citing not only the Daubert decision, but also the federal courts' Reference Manual on Scientific Evidence that was compiled in Daubert's wake. Cornell v. 360 West 51st Street Realty, 22 N.Y.3d 762, 9 N.E.3d 884 (2014).

Given the purchase that Daubert seems to be gaining, what is the present-tense lesson for litigators? Simply that Daubert need no longer be regarded as a foreign visitor in New York courtrooms. Lawyers should not hesitate to cite it and argue its concepts in challenging the admissibility of questionable expertise. Further, where the relatively low bar to admissibility is hurdled the reliability factors that Daubert described should be developed on cross-examination to challenge the weight to be afforded the expert's testimony.

Daubert Factors on Cross

Because Frye relies on the unitary factor of general acceptance that, in effect, outsources the gatekeeping role to those who profit from admissibility determinations, dubious expertise may find New York courtrooms more welcoming than those in which the more “exacting standards of reliability” of Daubert are applied. Weisgram v. Marley Co. , 528 U.S. 440, 120 S.Ct. 1011 (2000). Effective cross-examination should chill that reception. Though general acceptance opens the courtroom gate, reliability ' or more precisely, the lack thereof ' remains a point of challenge on cross-examination. In other words, although the testimony may be admissible, cross-examination is the crucial check on reliability and testimonial weight.

In Daubert, the court postulated a number of factors that speak to reliability: 1) whether the method has been tested to determine its validity; 2) whether there are standards of performance and whether the error rate is known; 3) whether the method has been subjected to peer review and publication; and 4) whether the method has garnered general acceptance. Each of these factors presents an opportunity to challenge expert testimony on cross-examination.

Let us consider the potential of these factors to demonstrate to the court that the best interest opinions of a custody evaluator should be discounted because they lack reliability. On the issue of whether the underlying principles and methodologies of the evaluation have ever been tested to determine their reliability, a couple of questions will make the point:

Doctor, in reaching your conclusions in this case you used certain techniques or methodologies, correct? Have those techniques or methodologies ever been subjected to empirical testing to determine their accuracy as predictors of a child's best interest?

In fact, no such empirical testing has ever established the accuracy of any particular custody evaluation methodology. Accordingly, there is no known error rate with respect to the method employed by the evaluator on the stand. In the absence of a known error rate, for all the witness knows, he or she may be getting it wrong every single time!

Whether the techniques employed have been subject to peer review and publication is another important reliability issue. Several guidelines have been published by various organizations, such as the Association of Family and Conciliation Courts' Model Standards of Practice for Child Custody Evaluation Association of Family and Conciliation Courts, “Model Standards of Practice for Child Custody Evaluation,” ' 3.1'3.4, Fam Court Rev., Vol. 45, No. 1, January 2007); The American Psychological Association's Guidelines for Child Custody Evaluations in Family Law Proceedings, “Guidelines for Child Custody Evaluations in Family Law Proceedings,” ' 14, Am. Psychol, Vol. 65, No. 9, 863-867 (December 2010); and the American Academy of Child and Adolescent Psychiatry's Practice Parameters for Child Custody Evaluation, J Am Acad Child Adolesc Psychiatry, October 1997. Many evaluators either ignore such guidelines or deviate from them with abandon. That infidelity to published approaches should be identified and exploited on cross-examination and is especially effective in conjunction with the final reliability factor of general acceptance.

Whether the theory or technique has gained general acceptance as scientifically valid within the relevant community continues to be relevant under Daubert, though demoted to factor status rather than sole criterion as is the case under Frye. This offers the cross-examiner a number of opportunities. The American Psychological Association's Guidelines for Child Custody Evaluations in Family Law Proceedings acknowledge that “the profession has not reached consensus about whether psychologists should make recommendations to the court about the final child custody determination.” “Guidelines for Child Custody Evaluations in Family Law Proceedings,” ' 14, Am Psychol, Vol. 65, No. 9, 863-867 December 2010).

In her concurring opinion in People v. Wesley, Chief Judge Judith Kaye noted the crucial role of professional consensus: “The Frye test emphasizes 'counting scientists' votes, rather than on verifying the soundness of a scientific conclusion.' Where controversy rages, a court may conclude that no consensus has been reached.” 83 N.Y.2d 417, 633 N.E.2d 451, 464, 611 N.Y.S.2d 97 (1994).

As noted, many evaluators do not scrupulously follow any of the published guidelines. They often announce, sometimes with a misplaced sense of complacency, that they use an eclectic method that they themselves have contrived over the course of their careers. The key question to ask here is whether they have ever published their idiosyncratic methodology. When the answer is in the negative, as it almost invariably is, the next question is simple: “If your method has never been published, then it has never gained general acceptance in the profession, has it, doctor?” A profession cannot accept that of which it is not aware.

Conclusion

Even though Daubert is not yet the official test for admissibility, it clearly has garnered a position of respect in the courts of New York. Practitioners should continue to urge it as a basis for exclusion of testimony that does not measure up on the reliability scale. And when questionable expertise manages to pass muster under Frye, Daubert's reliability factors should be used to cross-examine the expert and to demonstrate that the testimony ought not to be given weight.

Timothy M. Tippins, a member of this newsletter's Board of Editors, is an adjunct professor at Albany Law School and is on the faculty of the American Academy of Forensic Psychology and on the Affiliate Postdoctoral Forensic Faculty at St. John's University. This article also appeared in The New York Law Journal, an ALM sister publication of this newsletter.