Expert Witnesses: Observing the Limits of Expertise

In the relatively short period of time between 1993 and 1999, The Supreme Court of the United States addressed the issue of expert testimony in three cases. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the proffered (and rejected) expert opinion was that Bendectin, prescribed for the management of nausea and vomiting in pregnancy, was teratogenic. In General Electric Co. v. Joiner, 522 U.S. 136 (1997), alleged workplace exposure to carcinogens was at issue, and, here too, proffered expert testimony was ruled inadmissible. Kumho Tire v. Carmichael, 526 U.S. 137 (1999), was a product liability case, and the product analysis conducted by the plaintiff's expert was deemed to be unreliable.

Not one of these cases was remotely related to family law, yet in each decision, one finds guidance that would be helpful to judges who, in adjudicating family law matters, must make decisions regarding the admissibility of proffered evidence from experts. In Daubert, the Supreme Court reminded trial judges that, as gatekeepers, they should conduct a “preliminary assessment” of proffered expert testimony and that, in doing so, the “focus must be solely on principles and methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 595. In G.E. v. Joiner, the Supreme Court noted (at 137) that “studies cited by respondent's experts were … dissimilar to the facts presented” in the case. G.E., 522 U.S. at 137. The Supreme Court pointed out that a trial court “may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” Id. at 146. In Kumho, the Supreme Court affirmed a district court's decision to focus attention on (and to deem unreliable) an expert's methodology, even though “[t]he District Court did not doubt [the expert's] qualifications.” Kumho, 526 U.S. at 153.