If, pursuant to this amendment, a trial court concludes that expert testimony is reliable, this does not necessarily mean that contradictory expert testimony is unreliable. The amendment is broad enough to allow for statements that are the product of competing principles or methods in the same field. See, e.g., Heller v. Shaw Industries, Inc., 167 F.3d 146, 160 (3d Cir. 1999) (expert testimony cannot be excluded simply because the expert uses one test instead of another, if both tests are accepted in the field and both produce reliable results). As a tribunal in In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 744 (3d Cir. 1994), the partisans “do not have to prove to the judge by a preponderance of evidence that the assessments of their experts are correct, they need only prove by a preponderance of evidence that their opinions are reliable. The requirement of proof of good repute is below the standard of proof of accuracy. See also Daubert v.
Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1318 (9th Cir. 1995) (scientific experts could testify if they could prove that the methods they used were also used by “a recognized minority of scientists in their field”); Ruiz-Troche v. Pepsi Cola, 161 F.3d 77, 85 (1st Cir. 1998) (“Daubert requires nor empowers the courts of first instance to determine which of several rival scientific theories has the best provenance.”). There has been some confusion about the relationship between sections 702 and 703. The amendment clarifies that the sufficiency of the basis for expert testimony must be decided under Section 702. Article 702 sets out the imperative requirement of good repute and an analysis of the adequacy of the expert`s base cannot be separated from the ultimate reliability of the expert`s opinion. In contrast, the “reasonable expectation” requirement of Rule 703 is a relatively narrow examination. When an expert invokes impermissible information, Rule 703 requires the trial court to consider whether the information is of a nature on which other experts in the field reasonably rely.
If this is the case, the expert can rely on the information to form an opinion. However, whether the expert relies on a sufficient information base – whether eligible or not – depends on the requirements of Rule 702. Rule 702 was created in response to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and the many cases in which Daubert was used, including Kumho Tire Co. v. Carmichael, 119 pp. 1167 (1999). In the Daubert case, the court placed on trial judges the responsibility of acting as gatekeepers to exclude unreliable expert testimony, and the Kumho court clarified that this gatekeeper function applies to all expert testimony, not just science-based testimony. See also Kumho, 119 pages, 1178 (citing the Committee`s note on the proposed amendment to section 702, which had been issued for public comment prior to the date of the Kumho Decision). The amendment reaffirms the role of the trial court as custodian and includes certain general standards that the trial court must use to assess the reliability and usefulness of the expert testimony provided. Consistent with Kumho, the amended rule provides that all types of expert testimony raise questions of admissibility so that the trial court can decide whether the evidence is reliable and useful.
Accordingly, the admissibility of any expert testimony is governed by the principles of rule 104(a). Under this rule, the onus is on the applicant to prove that the relevant admissibility requirements are met by the predominance of evidence. See Bourjaily v. United States, 483 U.S. 171 (1987). No attempt has been made to “codify” these specific factors. Daubert himself stressed that the factors were neither exclusive nor determinative. Other cases have recognized that not all of Daubert`s specific factors can be applied to all types of expert testimony. In addition to Kumho, 119 S.Ct., at p.
1175, see Tyus v. Urban Search Management, 102 F.3d 256 (7th Cir. 1996) (noting that the factors cited by the Court in Daubert do not automatically apply to expert testimony by a sociologist). See also Kannankeril v. Terminix Int`l, Inc., 128 F.3d 802, 809 (3d Cir. 1997) (indicating that the absence of peer review or publication is not determinative if the expert`s opinion is supported by “generally accepted scientific evidence”). The standards set out in the amendment are broad enough to require, where appropriate, consideration of some or all of Daubert`s specific factors. 1.
The word “reliable” has been deleted from paragraph 1 of the proposed amendment to avoid overlap with section 703 of the Regulations and to clarify that it is not necessary to exclude an expert opinion simply because it is based on hypothetical facts. The Committee`s note has been amended to reflect this textual amendment. The amendment is not intended to establish procedural requirements for the exercise of the trial court`s review function over expert testimony. See Daniel J. Capra, The Daubert Puzzle, 38 Ga.L.Rev. 699, 766 (1998) (“Trial courts should have considerable discretion in dealing with Daubert issues; Any attempt to codify procedures is likely to result in unnecessary changes in practice and raise difficult issues for appellate consideration. The courts have shown considerable ingenuity and flexibility in dealing with challenges to expert testimony under Daubert, and it is envisaged that this will continue under the amended rule. See, for example, Cortes-Irizarry v Corporacion Insular, 111 et seq.3d 184 (1st Cir.
1997) (analysis of Daubert`s application for summary judgment); With regard to Paoli R.R. Yard PCB Litig., 35 F.3d 717, 736, 739 (3d Cir.