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Proposed Rule of Evidence 702: Can You Prove That the Earth is Round?

Editor's Note: In 1995, the Pennsylvania's Supreme Court authorized it's Ad Hoc Committee on Evidence to draft proposed Rules of Evidence for adoption by the court. Recently, the Committee published it's proposed Rules. Members of the bar and other interested parties have been invited to offer their comments on the Rules. John P. Gismondi, a Pittsburgh plaintiff's personal injury attorney and an Adjunct Professor of Trial Advocacy at the University of Pittsburgh School of Law, offers the following comment on proposed Rule 702 entitled "Testimony By Experts." Mr. Gismondi is a frequent lecturer and author on evidence law and other matters relating to tort litigation.

Let your mind wander. Imagine you are an attorney in Spain, circa 1485. A dispute has arisen been two of the world's leading trading companies concerning shipping rights and lanes of travel over the high seas. Your opponent in the case offers expert testimony concerning certain distances, boundaries and territories which are relevant to the underlying dispute, said testimony being based on the assumption that the surface of the earth is flat. You are now set to begin your case-in-chief and as your first witness you propose to call a well-known, though controversial, local mariner of some repute, one Cristóbal Colón (a/k/a Christopher Columbus) who will offer contrary calculations concerning the true location of the shipping lanes. His calculations, however, are based on the rather novel assumption that the surface of the earth is curved. Your opposing counsel objects to the proffered testimony by Columbus, the basis of the objection being that his theory concerning the configuration of the earth's surface is not "generally accepted" by men of science. (Though first advanced as early as the 6th century B.C. by the Greek philosopher Pythagoras, the idea that the earth was round was still not a commonly held belief as of the mid-15th century.) Should Columbus be permitted to testify? i.e., In Spain circa 1485, can you prove the earth is round?

While the answer to that question may seem obvious today, it would have been a matter of much debate in 15th century Spain. Likewise, in 20th century America, there has been much debate over the standard which should be applied in determining whether certain scientific theories, techniques, opinions and the like are worthy of admission before a jury. If the current Pennsylvania common law of evidence were to be applied to our imaginary case, Columbus would probably be excluded as a witness. Likewise, under the recently proposed Pennsylvania Rule of Evidence 702, the jury would never hear the testimony of the venerable seaman.

The purpose of this article is to consider whether Rule 702 should be changed from its current form to provide that scientists espousing unconventional, and perhaps unpopular, theories should be permitted take the witness stand under certain circumstances. To put this issue in perspective, one must view proposed Rule 702 against the backdrop of Pennsylvania case decisions in the area, as well as Federal Rule of Evidence (F.R.E.) 702, for the two major influences on the drafters of the proposed Rules were the existing common law and the F.R.E. (Indeed, the proposed Pa. Rules mimic not only the numbering system of the federal Rules, but in many instances they incorporate the identical substantive language as well.

Regardless of whether one is in the state or federal system, the guiding principle on the admissibility of expert testimony has always been that the proffered conclusion, opinion, theory, etc. must be both relevant and reliable. Historically, the courts have encountered little difficulty in applying notions of relevance to scientific testimony. However, the question of what scientific evidence is sufficiently "reliable" to be worthy of admission has proved to be more troublesome. Prior to the enactment of the F.R.E., the leading case in the federal courts on the "reliability" issue was Frye v. United States, 283 F. 1013 (D.C. Cir. 1923). Under the Frye rule, scientific theories, techniques and the like were only admissible if they had achieved "general acceptance" in the relevant scientific community. Thus, in our hypothetical case, Columbus would not be permitted to testify because as of 1485 it was "generally accepted" that the world was flat, not round.

In its 1993 decision of Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the U.S. Supreme Court re-examined the Frye rule in light of the subsequent adoption of F.R.E. 702. In Daubert, the dispute was not over the shape of the earth but rather whether a certain drug could cause birth defects in an unborn fetus. The defendant pharmaceutical company sought summary judgement on the ground that, as a result of numerous studies done on human beings, the "generally accepted" view was that the drug in question did not cause such defects. In opposition to the defendant's motion, however, the plaintiffs proffered the expert testimony of a scientist who was prepared to opine that, based on test tube studies, animal research and a "re-analysis" of previous human studies, the drug could cause defects in an unborn fetus. The trial court refused to permit the plaintiff's expert to testify on the ground that his theory was not "generally accepted" by medical science and, therefore, summary judgement was granted.

On appeal, the Supreme Court reversed the trial court holding that Rule 702 superseded Frye, and that the principles of admissibility underlying that Rule were less restrictive than the old "generally accepted" standard. Instead, the Court said that an expert's scientific knowledge, opinion, theory or the like may be admissible even if it is not "generally accepted" in a relevant sound scientific methodology. In other words, the Court was saying that an expert's opinion or scientific techniques, even if novel or out of the mainstream, may nevertheless be admissible if the trial judge determines that the method employed to reach the conclusion or develop the technique was scientifically sound. In short, the focus under Daubert is on the expert's methodology, not his/her conclusion. That remains the law today in federal court.

In Pennsylvania, our state appellate courts for years adhered to the "generally accepted" standard. Would Daubert change that? Thus far, the issue has not been reached by our supreme court but the major appellate case discussing Daubert's influence, McKenzie v. Westinghouse Electric Corporation, 674 A.2d 1167 (Commonwealth 1996), has refused to depart from the stricter common law rule.

Whereas in Daubert the scientific issue was whether a particular drug could cause damage to an unborn fetus, the issue in McKenzie was whether a certain chemical which had contaminated a community's ground water could cause damage to an unborn fetus. As in Daubert, the defendant in McKenzie moved for summary judgment on the ground that the "generally accepted" view was that there was no credible evidence linking the chemical to the alleged birth defect. The plaintiff's response in McKenzie, as in Daubert, was to proffer the testimony of an expert whose opinion was that the chemical did cause birth defects. Admittedly, his theory was not "generally accepted" in the scientific community, but nevertheless, according to the plaintiffs, it was the product of valid scientific methodology. The trial court granted summary judgment to the defendant. On appeal the commonwealth court affirmed saying that existence of the causal relationship is generally accepted by the relevant medical community." McKenzie at p. 1172. As to Daubert, the court simply noted that it "is premised upon Federal Rules of Evidence which are not authoritative in Pennsylvania." McKenzie, supra, at fn 4.

Against this backdrop the Ad Hoc Committee on Evidence has proposed the following Rule 702:

"If scientific, technical or other specialized knowledge beyond that possessed by a lay person 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."

As is apparent from even a first reading, the Rule is completely silent on the Daubert issue. The comment to 702 indicates the Committee purposely took no position on the issue, preferring instead to leave it for resolution by our supreme court. One could make a credible argument, however, that the Committee should specifically adopt the less restrictive Daubert rule. The logic of that argument would proceed as follows: The Daubert view is more enlightened than the old "generally accepted" standard, and assuming it is the better rule, the Committee should specifically incorporate it into Rule 702 rather assuming that our highest appellate court will rule on the matter in the foreseeable future. Let us consider that argument in more detail.

First, is the Daubert approach the better one? In this writer's view the answer is clearly "yes," if for no other reason than Daubert seems to be more in keeping with the reality of how scientific knowledge evolves. Throughout the history of mankind, our level of understanding about "things scientific" has undergone constant change and refinement. Thus, what is "generally accepted" in the 1990's was undoubtedly at some earlier point in time -- perhaps as recently as a few years ago given the speed with which modern thinking is progressing -- just another fresh idea.

A prime example of this phenomenon is the change in the medical community's understanding of what causes stomach ulcers. For years, it had been commonly accepted that diet and stress were the culprits. In the 1980's, an American researcher began to advance the notion that, contrary to popular belief, most ulcers are produced by an infection in the stomach caused by a bacteria known as H-pylori. For several years this researcher was regularly ridiculed as he traveled around the country advancing his thesis at medical meetings and lectures. Lo and behold, a few years ago substantial data emerged which proved the researcher to be correct, and now it is commonly accepted among doctors that H-pylori is a prime cause of ulcers!

Given these realities concerning the progression of scientific thought, the Daubert rule under which novel or emerging theories are not excluded from jury consideration merely because they have not yet acquired "general acceptance" seems clearly preferable to the Frye standard. Indeed, one could say that in seeking to "police" which experts are permitted to testify the Frye rule has the ironic effect in some cases of denying the jury the opportunity to hear from our most frontiers of scientific thought in their respective fields.

Even if one concedes that Daubert is the better rule, it may still be asserted that it is not the Committee's province to either make outright changes in existing Pennsylvania law or to take a specific position on issues which have lacked a clear consensus of judicial opinion. Under such a view, the Committee acted quite appropriately in making the rule "silent" on Daubert.

However, while there is certainly merit to that argument, it must be noted that with certain other proposed Rules, the Committee did either change existing law or take a specific position in an area where previous decisions were unclear or even inconsistent. For example, in Rule 803(25)--Option I, which deals with whether statements by an employee constitute vicarious admissions of the employer, the Committee changed Pennsylvania common law by no longer requiring the proponent of the statement to prove that the employee was "authorized" to speak on behalf of the employer. Instead, the Rule only requires one to show that the agent spoke during the course of his employment and that the statement concerned a matter within the scope of such employment. Also, in Rule 407--Option II, the Committee resolves some confusion and apparent inconsistency in certain superior court opinions by specifically stating that subsequent remedial measures are admissible to prove "defect" in a strict liability case. Thus, one may assert that if those two areas were worthy of the Committee's "encroaching" on the state supreme court's domain, then clearly a subject of such fundamental and persuasive importance as the admissibility of expert testimony likewise warrants special attention of the Committee specifically adopting the Daubert rule (again assuming one deems it to be the preferable view) is that there is no guarantee our supreme court will decide this issue in the near future. To appreciate that point, one need only consider the history of the aforesaid rule concerning vicarious admissions. Despite the fact that the superior court has specifically questioned the wisdom of the common law requirement that one must prove that the agent was "authorized" to speak for the principal and urged the supreme court to abandon that requirement, [See e.g. DeFrancesco v. W. Pa. Water Company, 478 A.2d 1295 (1984)], the fact of the matter is that the "old" common law rule remains in effect today largely by default because it has been years since our high court has squarely addressed the vicarious admission issue. As such, one might reasonably surmise that it was this inordinately long hiatus by the supreme court which prompted the Committee to step in and change the current law. In any event, the point here is simply this: deferring to the supreme court on the Daubert issue provides no assurance that the issue will be resolved soon, and in the interim untold numbers of civil and criminal cases hinging largely on conflicting expert theories will be decided under the Frye standard.

In light of all of the above, the recommendation here is that the Committee should at a minimum propose an "Option II" to Rule 702 which incorporates the first paragraph of its proposed Rule but which goes on to add this Daubert-type language as the second paragraph:

Any scientific knowledge, theory, technique, opinion, conclusion or the like proffered by an expert witness shall not be excluded solely because such knowledge, theory, technique, opinion or conclusion is not "generally accepted" in the relevant scientific community. Rather, it shall be admitted if, in the judgment of the trial court, such knowledge, theory, technique, opinion, conclusion or the like is based upon, or the product of, appropriate scientific methodology as opposed to mere subjective belief or unsupported speculation.

John Gismondi on G+

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