Chiropractic Forensics Library
William Cockburn,D.C.

~Federal Rules of Evidence~
What is an Expert Witness Anyway?

William Cockburn, D.C., B.C.F.E

The adversarial nature of litigation has often relied upon the usage of experts to validate or damage a particular point of view , or of evidence incident to the trier of fact (the court).

Often, claims that such experts are "Hired Guns" for the defense or the plaintiff, have argued the fiduciary motive of the expert to bias an opinion towards the side of the case whom have contracted said expert.

Further, the qualifications for an expert often presented in a foundation which has resulted from a motion for summary judgment or exclusion of the experts on grounds of prejudice, might provide the court with the belief the expert is qualified (in a given field) when indeed that expert may not be qualified to testify or opin on a fact at issue.  An example of this would be a D.A.C.B.R. called to testify on an issue involving neurology when it would be more prudent to call a D.A.B.C.N.

Therefore, who is an expert?  How do they Qualify?  Can the average D.C., by virtue of his experience, or training. or skill also be qualified as an expert, or does one need a diplomate credential?

These are interesting questions and the following discussion should provide useful insights to doctors of chiropractic and those who engage their services as "EXPERT".
 

This is not accurate, and recent rulings and evidence codes provide for a solid and logical basis for determining not only the qualifications of expert witnesses, but issues related to trial as well..

The Frye Test (often and incorrectly referred to as Frye Rule):    This is the most commonly known, and the most commonly misquoted rule I have encountered as relates to experts, expert testimony, devices and trial outcome.

I have heard argument that if your profession, as a group, does not globally approve of a procedure or concept, then it doesn't meet Frye. (Peer group acceptance)

I have heard argument that if the general public does not have the capability of understanding a point without assistance of an expert, then it doesn't meet Frye. (General Acceptance)

So what is Frye, and what is its' impact today?

Frye v USA, 1923:  Prior to 1975 when the Federal Rules of Evidence came into existence, the Frye test was the standard for the admissibility as expert witnesses.  Frye indicated that scientific evidence would not be admissible unless it had been generally accepted by the scientific community to which it related.

"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 the 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."

A great start for 1923, but by this outdated standard, most issues related to today's doctor of chiropractic, would not meet the test, obviously.  Imaging applying Frye to the argument you can or can not see a subluxation on an x-ray, that thermography has a role in chiropractic, that adjusting does or does not have an impact on the sympathetic nervous system.

In brief, Frye is out!

Federal Rules of Evidence:  Congress adopted the Federal Rules of Evidence in 1975. Then in 1993, nearly twenty years later, the Supreme Court found that the Frye Test had not survived the Federal Rules of Evidence in the Daubert decision (see below).  This was the precedent for the removal of the Frye test.

The Federal Rules of Evidence are substantial in content and description and they are clear.  Although the legal community will always be adversarial in nature an will attempt to bend the Federal Rules in areas where they have not been previously tested, they remain to this day, an important and powerful instrument to the seeker of truth, the trier of fact and yes, the doctor of chiropractic.

How many times have you thought to yourself:

Why is that MD testifying against me?

Or indeed a chiropractor from a different philosophic camp,  

Or "I am a Logan Practitioner", or "I use Diversified", or "I have a subluxation-based practice and am an ICA member.  What's that ACA guy talking about?"

In my view, the Federal Rules of Evidence provide a basis for understanding the true nature of the expert, and how that expert's testimony is to be allowed and weighted.  As you read a few of the most germaine to chiropractic below, think of your own training and specialty and ask yourself how these rules apply to you.

Federal Rule 35:  stipulates that any two parties in a litigation may request an Independent Medical Examination from a reputable physician who has an active license and who is competent to perform such an evaluation.

Federal Rule 401:  states that all relevant evidence is admissible except where prohibited by the United States Constitution, a congressional act, or by rules prescribed by the Supreme Court.  Evidence which is not relevant can be excluded.

So what does relevant mean?  It means the probative value of the evidence will have an impact on the jury and its decision making process.

"Relevant evidence means evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.{emphasis added}"

Federal Rule 403:  states that although relevant, evidence may be excluded if its' probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of a jury.  Also considered here are undue delay, needless presentation of cumulative evidence and waste of time.

Self explanatory.

Federal Rule 702:  Pay close attention to this rule:

Testimony by Experts:     "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,"

The operative word in this rule is the word "or" as highlighted above.  The intent of this rule is to reveal that specialized training, educations, experience, skill or knowledge will qualify an expert.

This rule is about "assisting the trier of fact"   TO UNDERSTAND   TO DETERMINE  AND TO RELATE to the testimony of the expert.

Federal Rule 703:  states that the facts or data in a case upon which the expert basis his opinion, may be those discovered at or before the hearing

This rule does not require that a test be accepted by the general scientific community, only that the opinion rendered would be of a type reasonably established by experts in a particular "field". or sub-specialty.  An example would be a DC who has never touched, utilized, interpreted or received formal training or certification in digitizing, commenting or testifying about the procedure contrary to the testimony of someone who has established knowledge, skill , training and or experience with digitizing. (702)

Now that you have a better understanding of what types of  issues congress has determined to be of "value" to the establishment of expert status and opinion, let us further explore the case of Daubert.  This case further characterizes the area of expert opinion.

Daubert v Merrell Dow Pharmaceutical:   U.S. Supreme Court 1993

This is the case mentioned above that once and for all established the supercession of the Federal Rules of Evidence over Frye.

This decision has now come to be known as the Daubert Standard of Evidence Admissibility. In fact,  the American College of  Trial Lawyers has recommended that the standard of Daubert be applied as an admissibility standard in non-scientific expert testimony also.

Daubert centered on taking a closer look at evidence and expert witnesses when scientific data is involved and not surprisingly, the decision is kindred to various positions of research organizations, institutions, boards and policy makers within chiropractic.

The list below is derived from Daubert, and it contains four elements which I warn, should not be used exclusively to deny a given procedure or admissibility of expert testimony, as often times material out of context and innuendo are used to benefit a biased point of view.  These criteria are to be used as a fundamental basis, in concert with other basic and established guides to fair play and ethic.

The four criteria suggested by the court to further characterize the weight of evidence are:

1.  Whether the theory or technique has been tested.

2.  Whether the theory or technique has been subjected to peer review and publication.

3.  The known or the potential rate of error or the existence of standards.

4.  Whether the theory or technique has been  generally accepted.

While the court did not rate (or rank) these criteria, it did indeed determine that the first factor, "whether the theory or technique has been tested" is a [key question].

What then does all this mean to you as a practicing D.C.?

You need to be aware that the very nature of your training, your education, your knowledge, your skill and your experience can easily determine if you qualify as an expert, and to some degree, that to which you can testify, and who can testify, competently against you.

Should a chiropractor who treats children and has received a Diplomate in chiropractic pediatrics, be subjected to contradictory testimony or motion to suppress because a deposition from an orthopedist (perhaps one who has not practiced on children) has stated the chiropractor is not qualified to treat people under the age of 18?

There are hundreds of arguments, judicial, scientific and ethical, that can be made related to chiropractic doctors and the rules of evidence and admissibility of experts,   We need each one of us to know who we are, in what subject matter we are competent and to recognize that the expert on the other side of the fence, just might not be as qualified as are we.

Suggested Reading for the Brave at Heart

Standards and Procedures for Determining the Admissibility of Expert Evidence  American College of Trial Lawyers,  April 25, 1994  pp 1-16

Daubert 113 S. Ct. 2786  (1993)

Scientific Evidence and Expert Testimony,  Moenssens, AA et al:  4th edition  Westbury, NT  Foundation Press, Inc

The Experts Corner   Davis, JA  Journal of the American College of Forensic Examiners (numerous well written papers)

Standards of Expert Evidence Admissibility, David A Riegle in  Forensic Medicine , Journal of the American College of Forensic Examiners, Sept-Oct 96. pp16-17