Featured Expert Contributor, Judicial Gatekeeping of Expert Evidence
In federal courts, Daubert v. Merrell Dow Pharmaceuticals, Inc. applies not only to scientific testimony but also to technical and other specialized knowledge. That principle stems from the text of Federal Rule of Evidence 702(a)—which expressly references an “expert’s scientific, technical, or other specialized knowledge”—and the US Supreme Court’s holding in Kumho Tire v. Carmichael, which extended Daubert’s gatekeeping responsibilities to technical and specialized knowledge. Put simply, Daubert provides a generally applicable rule for how federal judges should ascertain the reliability of expert testimony.
The same is not true in Alabama. In 2011, the Alabama Legislature adopted the Daubert standard and modified Alabama Rule of Evidence 702 to provide:
(a) 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.
(b) In addition to the requirements in section (a), expert testimony based on a scientific theory, principle, methodology, or procedure is admissible only if:
(1) the testimony is based on 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.
At first blush, subsection (a) of this rule is similar to Federal Rule of Evidence 702, while subsection (b) is similar to the Daubert standard. But upon closer inspection—as highlighted by the italicized language—Alabama Rule of Evidence 702 differentiates between scientific and other forms of specialized knowledge. Rule 702(a)’s prescriptions for qualifying experts applies across the gamut of specialized knowledge. By contrast, Rule 702(b) imposes reliability and methodological requirements only when “expert testimony [is] based on a scientific theory.”
That distinction was of critical importance in the Alabama Supreme Court’s recent decision in Mazda Motor Corp. v. Hurst. There, two teenagers became trapped in a car after a high-speed, single-vehicle accident. Although both teens survived the crash itself, the car burst into flames after the accident, killing one of the teens and severely burning the other. The design of the particular car model at issue was an industry outlier because both the muffler and the fuel tank were located behind the rear axle.
At trial, Jerry Wallingford testified as a “design-defect-and-causation expert” for the plaintiffs. Wallingford has over four decades of experience in the automotive industry and is trained in mechanical engineering, failure analysis, and fire-safety analysis. Wallingford testified that the crash caused the muffler to move a foot and a half toward the fuel tank and that the sharp edge of the muffler cut the fuel tank, allowing gas vapors to escape the tank and ignite.
He further testified that the heat shield placed between the muffler and the fuel tank was not harder than the muffler and therefore could not have prevented the muffler from cutting the fuel tank. Wallingford also testified that this design violated Ford’s safety guidelines, which were representative of industry standards.
When asked during cross-examination whether he had conducted any tests using an exemplar muffler or fuel tank to verify his theory, Wallingford testified that he had not performed any such tests. In his defense, Wallingford provided two reasons for his failure to test his hypothesis.
First, he stated that testing wasn’t necessary because he proved his hypothesis using a “deductive process.” According to Wallingford, when you can move a sharp object a foot and a half “into the space” of another object, there is a “failure.” And second, he explained that testing would not be helpful because, “[w]ithout noting the exact angles” of how the muffler rotated during the accident, testing “cannot accurately replicate th[e] accident.”
Mazda objected to Wallingford’s testimony, but the trial judge permitted him to testify as an expert. Following an eleven-day trial and three days of deliberation, the jury returned a $9.9 million verdict against Mazda.
As relevant here, the Alabama Supreme Court affirmed the trial court’s evidentiary ruling. In so holding, the court emphasized that the plaintiffs had never claimed “that Wallingford’s inquiry was a scientific one” and had even objected during Wallingford’s deposition when Mazda’s counsel labeled it as such. The court also noted that Wallingford himself never labeled his method “scientific” or claimed to be a scientist.
According to the court, Wallingford instead used a “process [that] involves listing the possible failures that caused an event and determining which possible failure has the highest probability under the circumstance.” This method was based on “his specialized knowledge of automotive technology.” The court held that, because Wallingford’s testimony did not involve “science,” Rule 702(b)’s requirements did not apply.
What is surprising about the Alabama Supreme Court’s decision is not necessarily its result—its holding appears to comport with the operative rule’s text and structure—but that it fails to acknowledge Alabama’s significant departure from the standards used by the federal courts and the vast majority of state courts.
To be sure, the court acknowledged in a footnote that Kumho Tire applied Daubert to technical and other specialized forms of knowledge. But elsewhere in its opinion, the court used Daubert’s (now superseded) limitation to scientific knowledge as an affirmative reason to cabin Rule 702(b) to scientific knowledge. The court also noted that Alabama state courts had drawn such a distinction during the six-year interregnum between Daubert and Kumho Tire—during which time the Alabama state courts were applying Frye. It is thus beyond strange that the court declined to explain or to even acknowledge why the Alabama Legislature chose in 2011 to revive the pre-Kumho Tire distinction in Rule 702.
More fundamentally, Alabama’s distinction between scientific and other forms of technical and specialized knowledge is misguided and should be amended to mirror the federal standard. That is because the distinction between scientific and other forms of technical and specialized knowledge is an illusory one. This case illustrates the point.
In finding that Wallingford had not adopted scientific principles, the Alabama Supreme Court explained that Wallingford had essentially identified possible causes of the fire and then eliminated alternative possibilities to arrive at his conclusion. Wallingford’s method bears a striking resemblance to differential diagnosis in the medical field, a methodology to which Alabama unquestionably would apply 702(b)’s requirements for “scientific” testimony.
In short, by allowing plaintiffs’ lawyers to avoid Daubert’s strictures merely by eschewing the “scientific” label, Alabama has created a roadmap to introducing unreliable expert testimony.