Explanation:
Judge is the gatekeeper
The judge is to decide whether the expert is qualified to deliver reliable testimony and whether the expert's report is sufficiently reliable to be helpful to the Trier of Fact.
Rule 702 Testimony by Experts
1) the testimony is based upon sufficient facts or data
2) the testimony is the product of reliable principles and methods.
The Supreme Court identified four tests that can be used by the gatekeeper-judge to determine whether to admit the expert testimony. It is typically understood that it is not necessary for the expert testimony to pass all four tests.
1) Tested - Whether the theory or technique used by the expert can be, and has been, tested
2) Peer Review - Whether the theory or technique has been subjected to peer review and publication
3) Error Rate - The known or potential rate of error of the method used is known or predictable
4) General Acceptance - The degree of the method's or conclusion's acceptance within the relevant scientific community
Review of five court cases
1) Frye v. United States - 1923 - established the "general acceptance" principle
2) Federal Rules of Evidence - Rule 702 - 1975 - established the rule for "scientific, technical, or other specialized knowledge" expert witness testimony
3) Daubert v. Merrell Dow Pharmaceuticals - 1993 - established the four-part Daubert test for evaluating expert testimony
4) GE v. Joiner - 1997 - confirmed the trial judge's gatekeeper role
5) Kumho Tire v. Carmichael - 1999 - expanded the Daubert tests to apply to all disciplines
United States v. 14.38 Acres of Land
A good example of the application of the Daubert Test.
This is a rare case where the appellate court overruled the trial judge's gatekeeper role.
Gatekeeper is not intended to serve as a replacement for the adversary system: Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.
Rule 1 - Scope and Purpose
To secure the just, speedy, and inexpensive determination of every action and proceeding. In other words, the purpose is to make the process more efficient.
The report must contain:
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the data or other information considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.
That written report must contain, at a minimum, six items:
1) All opinions the witness will express and their foundation and reasoning;
2) Data and information considered by the witness;
3) Any exhibits that will be used while giving the testimony in court;
4) Witness qualifications, including all publications authored in the previous 10 years;
5) List of all other cases in the last four years where testimony was given as an expert at trial or deposition;
6) Description of the compensation for the study and testimony.
An appraisal report may need to be quite detailed. This may be at odds with the request of retaining counsel, who may want a less detailed report.
Report should include any exhibits which the witness anticipates using as "demonstrative evidence" during testimony.
report should include a statement of publications and testimony for the prescribed periods.
Some items of interest in this Rule are:
1 - If an objection is raised by one of the attorneys, the deponent will still be required to provide an answer, but that answer will be subject to approval by the court after hearing the objection.
2 - The deponent may refuse to answer a question only when it is necessary to preserve a privilege, enforce a limitation directly by the court, or present a motion under Rule 30(d)(4).
3 - The maximum time limit for a deposition is one day of seven hours.
4 - The deponent has the right to review and correct the transcript. He or she will have 30 days after receiving the transcript to review and submit corrections. However, this right must be affirmed and requested during the deposition. It is recommended that the appraiser expert always request this right to review and correct, as it will provide the appraiser with a copy of the transcript of the "oral report" for his or her workfile.
Rule 33 - Interrogatories to Parties
The time limit to respond is 30 days from the date of service of the interrogatories.
