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Teva Marron v. Lyle Stromstad (11/10/2005) sp-5955
Teva Marron v. Lyle Stromstad (11/10/2005) sp-5955
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| TEVA MARRON,
| ) |
|
| ) Supreme Court No. S-
10888 |
|
Appellant,
| ) |
|
| ) Superior Court
No. |
|
v. | ) 3AN-00-10929
CI |
|
| ) |
|
LYLE STROMSTAD, | ) O P I N I
O N |
|
| ) |
|
Appellee. | ) [No. 5955
- November 10,
2005] |
|
_______________________________ | ) |
|
|
|
|
Appeal from the
Superior Court of the State of Alaska, Third
Judicial District, Anchorage, William F.
Morse, Judge.
Appearances: Keenan Powell, Anchorage, for
Appellant. Dana S. Burke, Wilkerson &
Associates, Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
BRYNER, Chief Justice, concurring.
I. INTRODUCTION
Teva Marron and Lyle Stromstad were involved in an
automobile accident, for which Stromstad admitted fault. Marron
sued for damages, particularly compensation for medical
treatments, that she claims arose from the accident. The only
issue at trial was causation, and the trial consisted largely of
expert testimony. The jury found for Stromstad and the court
awarded him costs and fees. On appeal Marron claims the superior
court made a variety of discovery, evidentiary, and procedural
errors. We affirm the superior courts decisions on all issues
except its award of attorneys fees to Stromstad, on which we
remand.
II. FACTS AND PROCEEDINGS
A. Facts
Marron was a passenger in a car that Stromstad rear-
ended with his own vehicle at a traffic light in October 1998.
By her own admission, Marron was a chronic pain patient prior to
this accident, and had herniated a disc in a previous automobile
accident in 1991. She suffered additional pain following yet
another automobile accident in 1994. An MRI performed on Marron
in March 1998 showed her thoracic region to be, in her words, a
train wreck. However, with the help of chiropractic manipulation
under anesthesia, Marron described feeling better before the
accident with Stromstad. Although that accident occurred at a
very low speed,1 Marron reported a severe headache and facial
numbness at the scene of the accident. These symptoms worsened
in the days following, to include vomiting, spotting in front of
her eyes, and pain from the waist up.
Marron, distrusting Alaskan doctors, flew to California
to see Dr. John White, an orthopedic surgeon recommended by a
friend. Dr. White performed an examination on Marron, designed
to test back pain and response to certain stimuli. Based at
least in part on the results of that examination, Dr. White
refused to operate on Marron. Marron then visited Dr. Sunny
Uppal, another California doctor. Based upon the results of an
MRI performed in Spring 1998, Dr. Uppal decided that Marron
likely had a herniated disc. Dr. Uppal decided to perform a
discogram on Marron, a diagnostic procedure admittedly
controversial and incredibly painful. The discogram allegedly
proved that surgery was an appropriate treatment for Marrons
pain. Marron agreed to undergo surgery. She asserts that the
surgery was successful, in that it left her feeling roughly as
well as she did before the accident with Stromstad.
B. Proceedings
Marron sued Stromstad for negligence and gross
negligence, claiming that the accident exacerbated her previous
back injuries, causing her C 4-5 disc to become herniated. She
claimed damages for lost earnings, and past and future pain and
suffering, loss of enjoyment of life, and medical care.
Stromstad admitted he was at fault for the accident, but argued
that the accident was not the cause of Marrons injuries or
surgery.
Marron filed several motions in limine to: (1) compel
Dr. Richard Rubenstein and James Stirling, two of Stromstads
expert witnesses, to produce all 1099 income tax forms for all
insurance companies . . . or other entities from whom [they]
obtained monies or fees [for] performing forensic expert services
for the past five (5) years, in order to show the bias of each
witness; (2) strike Dr. Whites expert deposition testimony,
because Stromstad failed to timely produce an expert report; (3)
exclude Dr. Rubensteins testimony, because he was not a qualified
expert, because his opinions were speculative, and because his
opinions did not satisfy the requirements of Daubert v. Merrell
Dow Pharmaceuticals2 and as adopted by State v. Coon;3 (4)
exclude the testimony of Stirling, offered as an expert accident
reconstructionist, because his credentials were insufficient, his
investigation was too limited, and his opinions failed the
Daubert test; and (5) exclude various pieces of evidence,
including post-accident photographs of the vehicles involved.
Superior Court Judge William F. Morse denied all five of the
motions. Marron appeals these decisions.
A four-day jury trial was held in September 2002.
Before and during the trial, Marron opposed the introduction of
post-accident photographs of Marrons car and an insurance company
appraisal of the accident damage. Marron argued that this
evidence portrayed the accident as a mere fender-bender, and was
thus irrelevant and prejudicial. The superior court admitted the
evidence. Judge Morse denied Marrons request to introduce
evidence of Stromstads insurance coverage to rebut a statement by
defense counsel that Stromstad would be personally liable for any
judgment. Additionally, Marron sought to introduce several of
Dr. Rubensteins medical examination reports. According to
Marron, this evidence would show Rubensteins bias against
plaintiffs and towards the insurance defense industry. The court
refused to allow Marron to introduce the reports themselves into
evidence, though it did allow Marron to impeach Dr. Rubenstein on
cross-examination with some of the contents of the reports.
Marron appeals all of these decisions.
Following trial, the jury unanimously concluded that
Stromstads actions were not a legal cause of injury to Marron.
Marron moved for a new trial on the grounds that: (1) Stromstad
untruthfully implied that Stromstad was not insured and would be
personally responsible for any judgment; (2) the superior court
failed to exclude Dr. Rubensteins testimony as to lack of
causation; and (3) Stromstads attorney violated a court order
precluding Dr. Rubenstein from testifying as to how much force is
required to herniate a disc when he stated in closing that Dr.
Rubenstein testified that it would take more than 1-3 mph to
herniate a disc. Marron appeals the superior courts denial of
this motion.
Stromstad moved for attorneys fees following trial, and
Marron opposed the motion. Stromstad had made an offer of
judgment pursuant to Civil Rule 684 less than sixty days after
both parties had made their respective initial disclosures under
Civil Rule 26, which Marron rejected. Based on the timing of
Stromstads offer, and the fact that it exceeded Marrons eventual
jury verdict (of $0), the superior court held that Civil Rule
68(b) entitled Stromstad to receive seventy-five percent of his
post-offer attorneys fees from Marron. The court awarded fees
incurred in opposing Marrons motion for a new trial. Stromstad
did not itemize the total amount of fees he claimed to have
incurred. Marron protested the failure to include a detailed
listing of services provided, claiming that it prohibited her
from evaluating the reasonableness of the fees sought. The court
stated that, without itemization, it could not discern whether
the fees were either actually or reasonably incurred, and held
the requested amount to be much higher than one would expect in a
minor accident. The court therefore decided to reduce the base
amount of the fees by one-third, before awarding seventy-five
percent of that reduced amount to Stromstad.5 Marron appeals the
fee award.
III. STANDARD OF REVIEW
We generally review a trial courts discovery rulings
for abuse of discretion. We will find an abuse of discretion
only when left with a definite and firm conviction after
reviewing the whole record that the discovery ruling was
erroneous.6 However, we review de novo whether a trial court
weighed the appropriate factors in issuing a discovery order.7
We review a trial courts decision to admit or exclude
evidence for abuse of discretion, and will reverse such a
decision only if the error affected the substantial rights of a
party.8 Similarly, we generally review a trial courts decision
to admit expert testimony for abuse of discretion. But when the
admissibility of evidence or expert testimony turns on a question
of law, we apply our independent judgment.9
The decision to grant or deny a new trial is also
within the trial courts sound discretion.10 We will disturb the
trial courts exercise of discretion only in the most exceptional
circumstances to prevent a miscarriage of justice, and will find
an abuse of discretion only when evidence to support the verdict
was completely lacking or was so slight and unconvincing as to
make the verdict plainly unreasonable and unjust. 11 In reviewing
an order denying a new trial, we view the evidence in the light
most favorable to the non-moving party.12 However, whether the
trial court applied the correct legal standard in granting or
denying a new trial is a question of law that we review de novo.13
We review for abuse of discretion a trial courts fact-
based decisions as to whether attorneys fees are reasonable and
should be awarded.14 An award of attorneys fees constitutes an
abuse of discretion only when it is manifestly unreasonable.15
However, we review de novo whether the trial court applied the
law correctly in awarding attorneys fees.16
IV. DISCUSSION
A. The Superior Court Did Not Abuse Its Discretion in Denying
Marrons Motion To Compel Production of Dr. Rubensteins and James
Stirlings Income Tax Returns.
The superior court denied Marrons pre-trial motion to
compel two of Stromstads expert witnesses, James Stirling and Dr.
Rubenstein, to disclose their tax returns. Both witnesses had
refused Marrons request to produce the returns at their
depositions. Although both originally claimed to have testified
or worked as litigation consultants roughly as many times for
civil plaintiffs as for civil defendants, Stromstad concedes that
their deposition testimony revealed that in fact both witnesses
had worked predominantly as defense experts.
Marron sought to compel discovery of their income tax
returns to prove what she believed to be a strong financial
motivation on the part of both Stirling and Rubenstein to provide
testimony that favored the defense.
The superior court denied Marrons motion. The court
held that revealing opposing witness bias was an important
interest, and one that Marron was entitled to reveal through
cross-examination at trial. However, the court stated that
[p]laintiffs right to discovery must be balanced with the experts
right of privacy. The court held that the experts would retain a
right of privacy in their tax returns, but may be questioned
about the type of information that may be contained in or
referenced from the returns. Marron claims this ruling
constitutes an abuse of discretion.
There is no absolute right to privacy from discovery
orders to produce tax returns.17 Generally, a litigant may
discover an opponents tax returns for the sake of determining a
partys damages.18 But we have never specifically determined
whether a witnesss tax records are discoverable for the purpose
of showing that witnesss bias, or impeaching that witnesss
credibility at trial.
Alaska Civil Rules 26(b)(2)(i) and (iii) allow a court
to limit discovery where the information sought is obtainable
from some other source that is more convenient, less burdensome,
or less expensive, or if the burden or expense of the proposed
discovery outweighs its likely benefit. We interpret this rule
in light of Marrons purpose in seeking the tax returns: to prove
the experts alleged pro-defense bias. Under cross-examination by
Marron, both Dr. Rubenstein and Stirling admitted that they offer
their litigation services primarily to defendants. Dr.
Rubenstein also discussed the amount Stromstad compensated him
for testifying. Because Marron elicited the information that she
sought that the experts worked primarily for defendants the
superior court did not abuse its discretion in not allowing
Marron to discover the witnesses tax records.19
Because the superior court acted well within its
discretion, we uphold its refusal to compel discovery of the
experts tax forms.
B. The Superior Court Did Not Abuse Its Discretion in Refusing
To Strike Dr. Whites Testimony.
Marron appeals the superior courts refusal to strike
Dr. Whites testimony that discogram procedures such as the one
performed by Dr. Uppal are unreliable and that Marrons reaction
to the Waddell maneuver indicated her unfitness for surgery.
1. The superior court was not required to consider
Dr. White, as Marrons treating physician, to be an
expert witness, and was thus within its discretion
to admit his testimony without a Rule 26(a)(2)(B)
expert report.
Marron argues that the superior court abused its
discretion in admitting the testimony of Dr. White, Marrons
treating physician, pertaining to discograms, because he did not
provide an expert witness report and because Marron was unfairly
surprised by the testimony. The issue turns on the proper
interpretation of Alaska Civil Rule 26(a)(2)(B), which provides
that [e]xcept as otherwise stipulated or directed by the court, a
party must provide a written report of each of its expert
witnesses containing a complete statement of all opinions to be
expressed and the basis and reasons therefor; the data or other
information considered by the witness in forming the opinions . .
. [and] the qualifications of the witness.
Stromstad does not dispute that expert testimony is
inadmissible without a preliminary report. Rather, Stromstad
explains that the superior court did not require the disclosure
of Dr. Whites opinions prior to his deposition because Dr. White
was Marrons treating doctor, not a retained defense expert.
Stromstad cites Fletcher v. South Peninsula Hospital20 and Miller
ex rel. Miller v. Phillips21 for the proposition that treating
physicians need not be listed as experts, and can testify without
meeting the disclosure requirements of Rule 26(a)(2)(B). We
agree with Stromstad.22
Marron asserts that her principal argument is based on
fairness: A treating physician is allowed to testify regarding
anything previously produced in his medical records because there
is no surprise to the opposing party. Marron states that she was
completely surprised by Dr. Whites discogram testimony at
deposition, even if he was her treating physician. Undoubtedly,
an overall aim of evidentiary, discovery, and procedural rules is
to prevent unfair surprise to litigants. The critical question
is thus whether Marron was unfairly surprised.
The superior court acknowledged that Dr. Whites medical
report (prepared prior to the deposition) contained no
information on discograms or why Dr. White elected not to perform
this procedure on Marron to determine her fitness for surgery.
However, Marron next consulted Dr. Uppal, who did utilize a
discogram in deciding to operate on Marron. Accordingly, the
court felt it was foreseeable that Stromstad would explore why
Uppal and not White found Marron suitable for surgery, . . .
[and] that Stromstad would ask White about the use of a discogram
or why he had not used the technique used by Uppal. Considering
that Marron knew exactly what techniques Dr. White used and did
not use, the court concluded that Marron should not have been
surprised that White discussed discograms at his deposition.
Furthermore, the court reasoned that if Dr. White was not allowed
to explain at trial why he did not use a discogram, then Dr.
Uppal would be able to argue that his use of the discogram
explained the difference in the two opinions regarding Marrons
need for surgery. This, the court concluded, would give the jury
an inaccurate picture of what happened. A trial court has wide
discretion in managing the discovery process23 and admitting
expert testimony.24 In light of the above considerations, we find
that the superior court did not abuse its discretion on this
point.
2. Because Dr. White was Marrons treating physician,
the superior court did not err in admitting his
testimony without subjecting it to a Daubert
analysis.
Marron additionally asserts that Dr. Whites testimony
should have been excluded because his decision to disqualify
Marron from surgery was based on a mistaken application of the
Waddell test, one inadmissible under the Daubert standard for
admitting or excluding expert testimony. The superior court
disagreed, declaring that Whites use of the Waddell factors in
making his evaluation is not the type of expert testimony that
must be subjected to Daubert, because Dr. White used those
factors in making his decision not to perform surgery. Stromstad
agrees, explaining that Dr. Whites testimony was based on his
application of the Waddell test in treatment, and was not the
testimony of a retained expert.
As discussed below in Part IV.C, Daubert v. Merrell Dow
Pharmaceuticals, Inc.25 governs the admissibility of scientific
expert testimony in federal courts. We have adopted Daubert,26
but have never explicitly determined whether a treating
physicians testimony must meet the Daubert criteria.
Some federal courts have applied Daubert to exclude the
testimony of treating physicians. However, they have done so in
cases where the issue was whether the physician should be allowed
to testify as to causation that is, to state a scientific
conclusion.27 As Stromstad notes, Dr. White applied the Waddell
test to Marron in the course of determining treatment, not in
preparation for litigation, and not to determine the causation of
her alleged injuries. At least one federal decision has
explained that testimony about the type of treatment performed on
[a patient] is factual in nature and is not subject to exclusion
under a Daubert analysis.28 As such, this testimony should be
rebutted by cross-examination of the treating physician, not
preemptively excluded.29 This notion finds support in our
decision in Miller, which upheld a superior court ruling that the
treating physician would be forbidden from testifying in general
terms about the appropriate standard of care, [but] he would be
allowed to testify as to his own opinion as to what he observed.30
The superior court followed this logic in denying
Marrons motion to strike Dr. Whites testimony. The court stated
that even if Dr. Whites use of the Waddell factors was
unsupported by scientific theory or empirical research, Whites
use of those factors is a historical fact that partially provides
the basis for the decision not to perform surgery. We now hold
that when a treating physician testifies regarding a course of
treatment, the physicians testimony need not be subjected to a
Daubert analysis. We therefore hold that the superior court
correctly refused to apply Daubert to exclude Dr. Whites
testimony.
C. The Superior Court Was Not Required To Exclude the
Testimony of James Stirling or Dr. Rubenstein.
Stromstad sought to introduce testimony from James
Stirling as an accident reconstruction expert, to rebut Marrons
testimony suggesting the accident involved a forceful impact on
her car, and the likely accompanying inference that the accident
caused her injuries. Stromstad also sought to introduce expert
testimony from Dr. Rubenstein that (1) Marron was not a proper
candidate for surgery; (2) there was no objective basis for
Marrons pain complaints; (3) her complaints and treatment were
caused by other factors like drug seeking behavior, secondary
gain and/or some sort of histrionic psychological makeup, and (4)
a rear-end accident at less than five miles per hour could not
have caused Marrons injury. Marron moved in limine to exclude
both experts testimony. The superior court allowed Dr.
Rubenstein to testify on the above topics, although it prohibited
him from testifying about some of his specific sources or
conclusions that the court determined were too speculative. The
superior court allowed Stirling to testify as a general accident
reconstructionist, which allowed him to testify about the speed
each car was going at impact, the difference in the relative
speeds of the cars, the damage done to the car in which Marron
was riding . . . and the effect of impact on the forward movement
of [Marrons] vehicle.
On appeal, Marron asserts that the superior court erred
in admitting Stirlings testimony, because he was not a qualified
expert, his investigation of the accident and basis of his
opinions were insufficient, his testimony does not satisfy
Daubert, his testimony did not assist the trier of fact, and the
probative value of his testimony was outweighed by its
prejudicial effects. Similarly, Marron claims that the superior
court should have excluded Dr. Rubensteins testimony because he
was not qualified to testify as an expert in this action, his
opinions were speculative and did not meet the standards of
medical certainty, and his opinions did not satisfy the Daubert
standard adopted by Alaska. None of Marrons claims has merit.
1. Stirling and Dr. Rubenstein were properly
qualified as experts.
The superior court did not abuse its discretion in
qualifying Stirling and Dr. Rubenstein as expert witnesses.
Trial judges have wide discretion to determine whether to qualify
witnesses as experts.31 As explained earlier, our liberal
admissibility standard for expert testimony32 allows any person
with specialized knowledge to serve as an expert witness, so long
as that knowledge is relevant, in that it can help the trier of
fact understand evidence or determine facts in issue. No
specific training or formal education is required.33
Marron argues that Stirling was unqualified to be an
expert witness because he does not have a Bachelors degree. He
has no degree of any kind in engineering. He is not a
biomechanic. Stirlings formal training is limited to courses in
accident reconstruction, but the record indicates that this
coursework was both extensive and highly specialized. Stirling
is also a member of several professional societies, is certified
by this state as a police instructor in accident reconstruction,
and has been working in his field since the late 1970s. By
Stirlings estimation, he has assisted in or investigated over
4,500 accidents. The superior court was thus within its
discretion in holding that whatever the limitations of Stirlings
expertise in determining the force of the accident, it is a more
informed evaluation than could be made by a jury looking at the
same evidence without the assistance of an expert. This is
fundamentally all that Alaska Rule of Evidence 702 requires.
Marron argues that as a neurologist, Dr. Rubenstein
should not have been qualified as an expert witness, because he
is not a surgeon, biomechanics specialist, psychiatrist or
psychologist, yet his testimony touched on those areas of
expertise. But we have specifically rejected a reading of
Evidence Rule 702 that would require expertise in precisely the
area upon which the expert proposes to comment. 34 Despite his
limited knowledge of surgery, psychology, or biomechanics, as a
neurologist Dr. Rubenstein testified that he was an expert in
eliciting objective findings via the neurological examination,
and an expert in recommending alternative forms of treatment.
Dr. Rubenstein also performed a five-hour exam on Marron,
explained the procedures performed by Dr. Uppal, and correlated
Marrons MRI results with his own examination. Dr. Rubensteins
testimony was thus certainly helpful to the jury in making a more
informed evaluation of the evidence.
2. Daubert did not apply to Stirling or Dr.
Rubenstein.
As noted earlier,35 we adopted Daubert in State v.
Coon.36 Daubert requires the trial judge to make a preliminary
determination that the reasoning or methodology underlying
[expert] testimony is scientifically valid and . . . properly can
be applied to the facts in issue. 37 In other words, at its most
basic level Daubert contains two essential requirements for the
admission of scientific expert testimony: it must be reliable and
it must be relevant.38 In reviewing trial court Daubert
decisions, we have adopted the abuse of discretion standard used
by federal courts, in light of Dauberts goal of allowing trial
courts greater flexibility in determining the admissibility of
expert testimony.39
In this case, the superior court expressed serious
misgivings about the reliability of Stirlings specific methods
and conclusions. The court noted that there is no reason to
believe that Stirling has done any testing to determine what
damage, to a specific model of car, a collision of a particular
configuration and speed will produce, and the court saw little
reason to believe that Stirling can discern [the] quantity of
damage from photos and repair estimates and translate it into
speed differential. Nonetheless, the superior court decided to
allow Stirling to testify because [t]here is an enormous body of
experimentation concerning the damage done to vehicles in an
accident, and [h]aving seen thousands of accidents, one assumes
that Stirling has developed a pretty good sense of the amount of
damage that occurs in accidents at different speeds.
Similarly, the superior court did not conduct a Daubert-
style analysis of Dr. Rubensteins specific methodology in this
case. Based only on his credentials as a neurologist, Dr.
Rubenstein was allowed to testify as to the basis for Marrons
pain (whether psychological, drug-seeking, or the result of the
accident with Stromstad) and whether Marron was a proper
candidate for surgery.40 Thus, the superior court admitted the
testimony of Stirling and Dr. Rubenstein based on the reliability
of their expertise in general, rather than its application in
this particular case. We must determine whether this was proper.
Under federal law, the manner in which the trial court
admitted the testimony of Stirling and Dr. Rubenstein was
probably erroneous. Daubert by itself does not apply to the
testimony of Stirling and Dr. Rubenstein its holding was limited
to testimony based strictly on scientific knowledge, that is,
knowledge that has been derived by the scientific method.41 But
the Supreme Court later extended Daubert to cover all technical
or other specialized knowledge in Kumho Tire Co. v. Carmichael.42
In other words, all expert testimony in federal courts must now
meet the Daubert requirements of reliability and relevance.
Thus, under Kumho Tire and Daubert, the testimony of Stirling and
Dr. Rubenstein could not have been presented to the jury until
the trial judge first evaluated the reliability of the evidence
by, for example, determining whether Dauberts four factors in
assessing scientific testimony were applicable or dispositive to
the present testimony.43 But we have never adopted Kumho Tires
extension of Daubert to all expert testimony,44 and we now
explicitly decline to do so. Instead, we limit our application
of Daubert to expert testimony based on scientific theory, as
opposed to testimony based upon the experts personal experience.
Alaskas rules of evidence are similar to, and were
modeled after the Federal Rules of Evidence.45 This gives the
evidentiary decisions of federal courts, particularly the United
States Supreme Court, considerable persuasive weight. However,
like other states, we are not bound by the Federal Rules of
Evidence, and federal decisions interpreting federal rules do not
govern state court decisions based on state rules.46 We noted in
Coon that in adopting Daubert we are not bound by the Supreme
Courts conclusion[s],47 but its analysis of the corresponding
federal rules is helpful.48 And as the Indiana Supreme Court has
stated, Rule 702 of the Federal Rules of Evidence is not a
minimum constitutional requirement applicable to the states.49 In
short, we are not bound by Kumho Tire, even if we do apply the
Daubert standard to our own rules of evidence.
Kumho Tires expansion of Daubert to cover all expert
testimony has been widely criticized.50 Daubert was formulated
with an eye toward the permissive backdrop of the Federal Rules
of Evidence, and was intended to overturn the overly austere and
rigid general acceptance test of expert testimony then favored by
many federal courts.51 The Court noted that such a test was at
odds with the liberal thrust of the Federal Rules and their
general approach of relaxing the traditional barriers to the
admission of expert testimony.52 We too have a liberal standard
favoring the admissibility of expert testimony,53 and we cited the
Courts language approvingly in Coon.54 We have adopted a liberal
standard for admitting evidence to increase the information
available to the fact-finder, whose role in the adversarial
process is crucial. Yet the concern that Daubert would usurp[]
the jurys duty to determine the credibility of expert testimony,55
only increased after Kumho Tire. Critics argued that the new
federal standard presuppos[es] that the traditional adversary
process is insufficient to enable opposing counsel and their
experts to ferret out inaccuracies and bias in expert testimony. 56
Moreover, as noted by Professor Saltzburg, these reforms in the
law of evidence that were intended to liberalize the admission of
expert testimony have now been interpreted to constrict the flow
of expert opinion in trials.57 Dauberts requirements can also be
easily exploited by litigants, leading to mini-trials, a
prolonged discovery process, and prohibitive costs to both
parties and the court.58 Expanding Dauberts scope to include all
expert testimony seriously exacerbates these problems. Several
states have agreed, and have declined to adopt the expansion of
Daubert that Kumho Tire accomplished.59
In maintaining Dauberts distinction between scientific
and other technical or specialized knowledge, we look to the
definitions provided by Daubert itself. As the Daubert Court
explained, scientific implies a grounding in the methods and
procedures of science, and knowledge connotes more than
subjective belief or unsupported speculation.60 Science itself
represents a process for proposing and refining theoretical
explanations about the world that are subject to further testing
and refinement, and scientific knowledge refers to inferences or
assertions derived from the scientific method.61 In short,
scientific testimony is based on theory, and may be subjected to
objective testing.
It is true, as the Supreme Court suggested, that there
is often no clear line dividing scientific from other technical
or specialized knowledge, and technical but non-scientific
evidence may often be vetted in the same fashion as strictly
scientific evidence. But much if not most expert testimony is
based on specialized knowledge derived only from experts personal
experience and intuition.62 This evidence is not empirically
verifiable or objectively testable. The Daubert factor-driven
test is useless as a criterion for the admissibility of other
types of expert testimony.63 As Professor Saltzburg and his
colleagues noted, [m]any fields of expert testimony . . . simply
lack the intellectual rigor of Newtonian experimental science.64
Instead of using methods that enjoy a high level of objective
verifiability, they depend on a more subjective application of
the experts practical experience to the particular facts of the
case.65 But [n]othing in the language or legislative history of
the [federal rules] justifies any presumption against admitting
expert testimony66 in such cases. Rather, the text and
legislative history of the Rules affirmatively support the
admission of such evidence.67 Expanding Daubert to cover
testimony of this sort is inconsistent with Rule 702s explicit
acknowledgment of experience as a basis for expertise,
contradicts the prior application of the evidence rules and the
common law, and would endanger a vast array of expert testimony
that has been accepted . . . for decades.68 We agree with
Professor Saltzburg and his colleagues that experience-based
expert testimony was traditionally favored over theory-based
expert testimony, and that [a]dopting the idea that subjective
expert testimony based on specialized knowledge derived from
experience . . . should be distrusted and targeted for exclusion
. . . would turn evidence law on its head.69
We also agree with Professor Saltzburg and his
colleagues that experts can often help jurors on the basis of
their experience by virtue of their specialized knowledge that
educates them about relevant factors to consider in determining
an issue.70 In such cases, the threshold for admissibility need
not be as high as when a sophisticated scientific question beyond
the jurys everyday world experience and ordinary mode of
reasoning is at issue.71 The testimony of Stirling and Dr.
Rubenstein is clearly within the jurys everyday world experience
and ordinary mode of reasoning. It is also the sort of
experience-based testimony the admission of which is encouraged
by our rules of evidence and traditional evidence standards, yet
whose admissibility would be threatened under Kumho Tire. We
hold today that the admissibility of experience-based testimony
should be governed by these traditional standards and rules of
evidence, as further discussed below. Where the expert testimony
is plainly derived from experience not from the scientific
method and is not dependent on sophisticated scientific theory,
Daubert does not apply. The admission of such testimony is not
dependent on satisfying the Daubert requirements. Kumho Tire is
inconsistent with this standard.
A trial court need not apply the Daubert standard to
all expert testimony in order to ensure that it is relevant and
reliable. As the Supreme Court itself noted in Daubert, there
are numerous other rules of evidence that serve to ensure the
reliability of expert testimony.72 For example, both Federal and
Alaska Rule of Evidence 702 require that all experts be properly
qualified by knowledge, skill, experience, training, or
education.73 In addition, the experts knowledge must assist the
trier of fact to understand the evidence or to determine a fact
in issue.74 Under Rule 703, the facts or data in the particular
case upon which an expert bases an opinion or inference must be
of a type reasonably relied upon by experts in the particular
field.75 Under both Federal and Alaska Rule of Evidence 706, a
court may appoint its own independent expert witness to advise
the court.76 Under both Federal and Alaska Rule of Evidence 403,
the judge may exclude evidence whose probative value is
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury.77 In extreme cases, where one
side has proffered only an insufficient scintilla of expert
testimony or other evidence, the court is free to direct a
judgment or to likewise grant summary judgment.78 Perhaps most
importantly, the Supreme Court noted that [v]igorous cross-
examination, presentation of contrary evidence, and careful
instruction on the burden of proof in short, the basic pillars
of the adversary system are the traditional and appropriate
means of attacking shaky but admissible evidence.79
This decision should not be read as a wholesale
rejection of Kumho Tire. We offer no opinion on Kumho Tires
clarification of the proper procedure and standards for
performing a Daubert analysis of scientific testimony. Our
decision not to adopt Kumho Tire and to limit Daubert is limited
to the situation before us: the admission of expert testimony
based on accrued wisdom and personal experience. Accordingly, we
hold that the superior court did not err in admitting the expert
testimony of Stirling and Dr. Rubenstein without a Daubert
analysis.
3. Dr. Rubensteins opinions were not overly
speculative and they met the standards of medical
certainty.
Marron also claims that the superior court should have
granted her motion in limine to exclude Dr. Rubensteins testimony
because his opinions are speculative and do not meet the
standards of medical certainty. Marron recites several specific
facts related to her medical history and treatment of which Dr.
Rubenstein was apparently unaware at the time of his deposition:
whether Marron had suffered pain prior to the accident with
Stromstad, when the last time prior to his examination of her she
had taken any prescription pain medication, and the half-life or
length of effectiveness of her prescription drugs. We reject the
argument that Dr. Rubensteins testimony should have been
precluded because it was speculative.
In Maddocks v. Bennett,80 we stated that a medical
experts opinion must be within a reasonable medical certainty or
the equivalent reasonable medical probability to be admissible.81
Maddocks indicates that reasonable probability is determined by
the experts own confidence in the experts testimony.82 Dr.
Rubenstein himself stated that he believed his conclusions to be
within a reasonable degree of medical certainty based on Marrons
medical records and MRI results.
Although, as Marron notes, Dr. Rubenstein admitted
ignorance as to several details of Marrons medical history or
treatment, nothing in the language of Maddocks indicates that a
medical expert must know every factual detail of a case before he
can testify to a reasonable probability. Even where a medical
expert is uncertain as to a specific fact, his overall conclusion
is not necessarily speculative.83 Dr. Rubenstein testified at
trial that traumatic disc herniation is extraordinarily unusual
without fracture of the bony vertebral bodies, and that MRI films
indicated that there was certainly no evidence of disc herniation
or other damage to Marrons vertebral bodies. Dr. Rubensteins
language and the evidence upon which it was based easily
satisfied the Maddocks standard of medical certainty.
4. The superior court did not abuse its discretion in
admitting Stirlings testimony.
Marron also claims that Stirlings investigation of the
accident, and thus the basis for his opinions, was insufficient;
that Stirlings testimony [did] not assist the trier of fact; and
that the probative value of Stirlings testimony was outweighed by
its prejudicial effects. All of these remaining claims
essentially call for this court to find that the superior court
abused its sound discretion in admitting evidence. We decline to
do so.
Accident reconstructionists, and James Stirling in
particular, have previously been allowed to testify in similar
cases.84 That the testimony of such experts assists the trier of
fact is self-evident. Although a jury might have found that
Stirlings investigation, or the basis of his opinions, was
insufficient, it was Marrons responsibility to expose these
weaknesses through cross-examination and the presentation of
countervailing expert testimony. Accordingly, we find that the
superior court did not abuse its discretion in admitting
Stirlings testimony.
D. The Superior Court Did Not Abuse Its Discretion in
Admitting Photographic and Insurance Appraisal Evidence
of the Damage to Marrons Vehicle.
Marron claims that the superior court should not have
allowed Stromstad to introduce photographs and an insurance
appraisal indicating the damage (or lack of damage) to Marrons
car. Marron asserts that any probative value of this evidence
was outweighed by the risk of prejudice. Marron suggests that
this evidence would have led the jury to believe the accident was
so minor that it could not have caused her injuries. Stromstad
responds that this evidence, in tandem with Stirlings accident-
reconstruction testimony, shows the low force of the impact.
Marron relies principally on Davis v. Maute,85 whose
essential facts are quite similar to this case: The defendants
conceded negligence led to an alleged minor impact in which the
plaintiff allegedly sustained injury. The only issue was the
extent to which the accident caused the plaintiffs injuries. The
defendant had introduced photographs showing light damage to the
plaintiffs car.86 The Supreme Court of Delaware held that without
the support of competent expert testimony, a party generally may
not claim a correlation between the extent of the damage to
automobiles in an accident and the extent of the occupants
personal injuries, even by implication.87 Since the defendant had
not introduced expert testimony, the court reversed the verdict
and remanded for a new trial.88 Stromstad asserts that Davis is
inapplicable to this case, because he introduced two expert
witnesses. We agree. Moreover, we decline to adopt the rigid
approach represented by that case.
We are unaware of any other jurisdiction which has
adopted a rule that collision evidence is per se inadmissible
without expert testimony,89 and we decline to do so. The trial
court properly has the discretion to weigh the prejudicial and
probative value of photographs and other evidence of the severity
of an accident. Evidence showing Marrons vehicle was undamaged
can be probative of the force with which the accident occurred,
and the likelihood that it caused serious harm to Marron. Thus,
the court did not abuse its discretion in admitting this
evidence.
E. The Superior Court Did Not Abuse Its Discretion in
Limiting Cross-Examination of Dr. Rubenstein and
Excluding Reports of His Previous Examinees.
Marron next asserts that, even assuming that Dr.
Rubensteins testimony was properly admitted, the superior court
abused its discretion in limiting her cross-examination of Dr.
Rubenstein on medical examination reports that Dr. Rubenstein had
prepared in earlier cases. Marron also asserts that the superior
court abused its discretion by refusing to admit those same
reports into evidence. Marron offered these reports to show Dr.
Rubensteins bias against plaintiffs and towards the insurance
defense industry. According to Marron, the striking similarity
between Dr. Rubensteins reports reveals Dr. Rubensteins skill in
invalidating claimants, and tends to show that Dr. Rubenstein is
hired because the insurance defense industry already knows what
his report will say.
However, at trial Marron focused primarily on a
different basis for admitting the reports. She asserted that the
reports would impeach Dr. Rubenstein regarding the thoroughness
of his examination of Teva Marron. Marron explained that the
reports show that Dr. Rubenstein performed much more
comprehensive examinations on the subjects of the reports,
including a set of specific tests administered only on the three
prior plaintiffs. Accordingly, the superior court gave Marron a
fair amount of leeway to impeach [Dr. Rubenstein] on what tests
he used and what tests he didnt use . . . to somehow convince the
jury that his evaluation is less credible.
Marron briefly presented a second theory for
admissibility of Dr. Rubensteins reports of prior examinations.
She argued that because Dr. Rubenstein offered the same opinion
for the three prior plaintiffs, despite the possibility that they
had different constellations [of symptoms], the reports were
probative of Dr. Rubensteins bias:
MS. POWELL: Okay. And the conclusions on
each of the [defense medical exams conducted
by Dr. Rubenstein] were identical.
THE COURT: That I dont see any reason for you
to bring in. Because now were going to have
to, I mean, who knows why are[,] or the other
three people[,] I mean, those are three
different patients with different
constellations of problems.
MS. POWELL: With the same result.
THE COURT: Maybe the result maybe the same.
MS. POWELL: Uh-hum.
THE COURT: But that doesnt necessarily mean
that the individual constellation of symptoms
are the same.
MS. POWELL: Yeah, that thats why I believe
its probative, because they are three
different people, three different
constellations and he has the same opinion
about all of them. Actually four including
[Marron].
THE COURT: Im not going to let you go into
that. You can ask about the specific tests
that he used or didnt use or specific
circumstances where he says he might not or
would not use a test, you can impeach him by
showing that he used them in those
circumstances in the past, but you cant bring
in the three other case histories with the
similar conclusion.
MS. POWELL: Okay.
THE COURT: Anything further?
MR. BURKE: No, Your Honor.
MS. POWELL: No.
This was the extent of Marrons presentation on the
relevance of the earlier reports. Marron points out on appeal
that Dr. Rubenstein used identical language in his conclusions
and recommendations in these reports and in Marrons and that he
simply parrot[ed] his conclusions from report to report. But
this argument was not made to the trial court, and Marron did not
narrow her request by pointing to specific language from the
reports that she sought to introduce.
The superior court did not explain its reasons for
limiting Marrons examination of Dr. Rubenstein. Stromstad
suggests quite reasonably that the courts decision was based on
Alaska Rule of Evidence 403. That rule allows a court to exclude
evidence, even if relevant, if its probative value is outweighed
by the danger of . . . confusion of the issues . . . or by
considerations of undue delay [or] waste of time. Marron herself
admits that cross-examination is [s]ubject always to the broad
discretion of a trial judge to preclude repetitive and unduly
harassing interrogation.
The record shows that Marron mounted an effective cross-
examination of Dr. Rubenstein within the courts parameters. The
cross-examination revealed evidence that Dr. Rubenstein did in
fact fail to thoroughly examine Marron; in particular, Dr.
Rubenstein admitted he neglected some aspects of the examination
because he was fatigued. Marrons cross-examination also revealed
the fact that Dr. Rubensteins litigation services are
predominantly done on behalf of defendants. And Dr. Rubenstein
admitted that he had received $25,000 in compensation for his pre-
trial services on behalf of Stromstad. Marron was therefore able
to adduce substantial evidence tending to diminish the
effectiveness of Dr. Rubensteins testimony.
The superior court thus did not abuse its discretion in
applying the balancing test inherent in Rule 403 to limit cross-
examination of Dr. Rubenstein and exclude his reports of previous
cases from evidence.
F. The Superior Court Did Not Abuse Its Discretion in
Denying Marrons Motion for a New Trial.
Following trial, Marron moved for a new trial on
various grounds. The superior court denied the motion and Marron
appeals. Marron argues that she should receive a new trial
because the superior court denied Marrons request to introduce
evidence of Stromstads insurance coverage, because the superior
court erroneously admitted the expert testimony of Dr.
Rubenstein, and because Stromstads closing argument violated the
superior courts protective order.90 The starting point of any
inquiry into the request for a new trial is Alaska Rule of Civil
Procedure 61, which provides:
No error in either the admission or the
exclusion of evidence and no error or defect
in any ruling or order or in anything done or
omitted by the court or by any of the parties
is ground for granting a new trial . . .
unless refusal to take such action appears to
the court inconsistent with substantial
justice. The court at every stage of the
proceeding must disregard any error or defect
in the proceeding which does not affect the
substantial rights of the parties.
The party requesting a new trial has the burden of
proving both error and prejudice.91 As noted above,92 a trial
courts grant or denial of a new trial is reviewed for abuse of
discretion. Before we will find an abuse of discretion, we must
have a definite and firm conviction of an error, based on the
entire record, viewed in a light most favorable to the non-
movant.93 This is a highly deferential standard of review, and we
have expressed great reluctance to interfere with a superior
courts decision to deny a new trial,94 absent exceptional
circumstances.95
1. The superior court properly denied Marrons request
to introduce evidence of Stromstads insurance
coverage in response to his opening statement.
In his opening statement, Stromstads counsel told the
jury that this case was about an unusual extreme overreaction
that Mr. Stromstad should not be held responsible for and should
not have to pay for. Marron asserts that this remark improperly
and untruthfully implied that [he] was uninsured and would be
personally responsible for any judgment. Accordingly, at trial
Marron requested to cure this alleged impropriety by introducing
evidence of Stromstads insurance coverage. The superior court
refused to allow her to do so. Marron subsequently moved for a
new trial, based partly on the courts refusal to admit her
evidence of Stromstads insurance. Marron appeals the courts
refusal to admit the above insurance evidence as well as its
refusal to grant her a new trial on this basis. Because both
points on appeal require similar analysis, we address them
together.
Trial courts should generally exclude evidence of
parties insurance coverage, so as to prevent such information
from distracting or prejudicing the jury. Improper admission of
insurance evidence can constitute an abuse of discretion and
grounds for a new trial.96 And we have found that some comments
can be understood as improperly suggesting that a defendant lacks
insurance coverage.97 But even assuming without deciding that
Stromstads counsels comment suggests a lack of insurance, we have
held that the mere inadvertent or incidental mention of insurance
before a jury in the trial of a negligence action does not
automatically call for a mistrial.98 Rather, [i]f there is any
error at all in permitting a reference to be made to insurance .
. . it must appear that such reference had a prejudicial effect
on the result of the trial in order for there to be reversible
error.99 No such prejudicial effect is apparent here.
The superior court was well within its discretion in
finding that Stromstads comment did not prejudice Marron. Marron
argues that Stromstads statement, coming at the very beginning of
the case, was prejudicial to the Appellant as the jury
[subsequently] received all of the evidence with the
misconception . . . that the Appellee would have to pay the
judgment personally. According to Marron, this misconception
thus predispos[ed] the jury to accept all of the evidence during
the ensuing trial sympathetically to the Appellee. However,
subsequent testimony at trial should have sufficed to correct any
misconceptions or predispositions. Stromstad testified that he
had exchanged insurance information with Marron after the
accident.100 Stirlings testimony was partly based on an auto
repair estimate by a field appraiser for Allstate Insurance.
Although the court excluded explicit testimony that Allstate was
Stromstads insurer, the implication that Stromstad is insured was
at least as apparent as any contrary implication from Stromstads
opening statement. We thus uphold the courts refusal to allow
Marron to cross-examine Stromstad about his insurance coverage as
well within its discretion under Evidence Rule 403. Stromstads
opening statement did not clearly prejudice Marron, and is not
grounds for a new trial.
2. Even if Stromstads closing argument violated the
superior courts protective order, Marron failed to
object timely.
The superior court issued a pretrial amended order in
response to Marrons motions in limine to limit various expert
testimony and exclude certain evidence. This order stated that
Dr. Rubenstein would be allowed to testify as to whether a rear-
end accident at less than five miles per hour could have caused
Marron to have herniated her cervical disc but could not express
an opinion that low-speed car accidents are the equivalent of
ordinary activities such as sitting down or being slapped on the
back. During his closing argument, Stromstad noted that Dr.
Rubenstein had testified that it would take much more than a one
to three mile per hour impact to cause a herniated disc. Marron
asserts that this was a violation of the pretrial order, and that
[v]iolation of a courts previous protective order by defense
counsel in closing is ground for [a] new trial.
We have never squarely held whether a summation that
violates a previous protective order is in fact grounds for a new
trial. But as a general rule, we have held that a party waives
the right to appeal improper summation arguments unless that
party objects to them at trial.101 Regardless of what Dr.
Rubenstein actually testified to, and whether Stromstads comment
somehow violated the courts pre-trial order, Marron did not
object to the purportedly inadmissible comment at any point
during Stromstads closing argument, during Marrons own rebuttal
summation, or before or even after the final jury instructions
were read. Accordingly, the superior court properly denied
Marron a new trial on this issue.
G. Stromstads Attorneys Fees Must Be Itemized.
Marron claims that the superior court erred in awarding
Stromstad attorneys fees without analyzing the reasonableness of
such fees.102 According to Marron, this reasonableness analysis
required the court to examine a detailed listing of the services
sought to be recovered, which Stromstad failed to provide in
response to Marrons request.103 Marron claims that awarding fees
to Stromstad without itemization, based only on an estimate of
what fee amount was reasonable, effectively denied her an
opportunity to be heard on this issue.
Stromstad sought attorneys fees pursuant to both Alaska
Rules of Civil Procedure 68 and 82. The superior courts decision
to award fees to Stromstad was based, correctly, only on Rule 68.104
Nothing in the text of Rule 68 (or Rule 82, for that matter)
specifically states that a prevailing party must itemize its fees
before a court may award them. Rule 68(b) simply states that a
settlement offeree shall pay reasonable actual attorneys fees
incurred by the offeror. We have never specifically defined
reasonable actual attorneys fees, or the process by which a court
should determine what were reasonable actual fees. But we have
suggested that a prevailing party must itemize any requested fees
where his or her opponent has made a specific cognizable request
for itemization.105 Marron argues that because her demand for a
detailed listing of services in her Opposition to Motion for
Attorneys Fees was sufficiently specific and cognizable, the
superior court should not have awarded Stromstad fees without
itemization.106 We agree.
As Stromstad notes, we have stated that [w]e will
reverse an award of attorneys fees only if the award is
arbitrary, capricious, manifestly unreasonable, or stems from
improper motive. 107 But when a litigant fails to provide an
itemized explanation of fees, the trial court has no effective
means of determining whether the amount of fees requested is
arbitrary or unreasonable108 and we are unable to review the trial
courts fee award for any abuse of discretion. We therefore hold
that, where the rule authorizes reasonable actual fees, a court
may not award attorneys fees to a party who has not itemized his
or her requested fees, when the opposing party has requested such
itemization. Accordingly, we reverse the superior courts award
of attorneys fees to Stromstad, and remand this part of the case
for further consideration.
V. CONCLUSION
Because we decline to apply Daubert to non-scientific
expert testimony, we AFFIRM the superior courts decision to allow
the testimony of James Stirling and Dr. Rubenstein. Because the
superior court did not abuse its discretion in denying the motion
to compel production of Dr. Rubensteins income tax returns, in
refusing to strike Dr. Whites testimony, in limiting cross-
examination of Dr. Rubenstein and excluding his reports of
previous patients, and in denying the motion for a new trial, we
AFFIRM the superior court in all of these respects. Because
Stromstad was required to itemize his attorneys fees in response
to Marrons request, we REMAND for a re-determination of attorneys
fees.
BRYNER, Chief Justice, concurring.
Although I agree with the opinion in most respects and
concur in the result, I disagree with its discussion of Daubert
and Kumho Tire in Part IV.C.2. Specifically, the opinion seems
to misunderstand how Daubert and Kumho would apply in this case.
In my view, the superior courts evidentiary rulings can easily be
sustained as correct applications of Daubert and Kumho. The
opinions categorical refusal to extend these cases to experience-
based expert testimony is unnecessary, overbroad, and unsound.
In the courts view, Daubert and Kumho need to be
rejected if we wish to sustain the superior courts ruling
because, [u]nder federal law, the manner in which the trial court
admitted the testimony of Stirling and Dr. Rubenstein was
probably erroneous,1 and its admissibility would be threatened
under Kumho Tire.2 But the court fails to provide any support
for this prediction or to engage in any case-specific discussion
of what Daubert and Kumho would actually have required. The
court instead chooses to restrict Daubert and Kumho, finding
Professor Saltzburgs views on this issue especially persuasive,
and approvingly quoting selected passages from arguments
expressed by the professor and two colleagues in an amicus brief
they submitted in Kumho Tire.3
But while the amicus brief in Kumho opened by broadly
questioning the utility of extending Daubert to experience-based
expertise,4 its authors concentrated their main arguments on the
extreme view of Daubert advocated by the petitioners in Kumho.
The amicus briefs authors viewed the petitioners as arguing that
Daubert categorically extends its four-factor test to all cases
involving expert witnesses, including all cases of experience-
based expert testimony; that its four-factor test (including the
requirement of objective verification) is mandatory and
exclusive; and that experience-based expert testimony must be
presumed inadmissible unless its proponent can prove compliance
with the Daubert test in a full Daubert hearing. It is this
extreme view of Daubert that Professor Saltzburg and his
colleagues so adamantly challenged:
But Daubert should not be extended to require
the exclusion of all opinions drawing on any
aspect of scientific or technical knowledge
that in some measure involves the use of
subjective judgment based on an experts
experience. Such an expansion of Daubert
would be inconsistent with Rule 702s explicit
acknowledgment of experience as a basis for
expertise . . . .
Nor is petitioners expansive reading of
Daubert grounded in reality. In our everyday
lives, we often obtain assistance from
persons who, because of their past
experience, have specialized knowledge and
are able to reach reliable conclusions based
on that experience. When such a person
appears in court as an expert, the pertinent
question should be whether, in light of such
past experience, his or her opinions can
assist the trier of fact not whether they
have been validated by the factors set forth
in Daubert bearing on the validity of an
application of the scientific method. As
Daubert emphasized, the inquiry under Rule
702 must be flexible. No bright-line test is
feasible, because the circumstances under
which an experts opinion can be deemed
reliable depend on the specific field of
expertise in question, and on the particular
issue in dispute.[5]
As the underscored wording shows, the amicus briefs
basic position was not that Daubert should never apply to
experience-based expert testimony, but that Daubert should not
always control, and automatically exclude, such testimony.
In keeping with this position, the amicus brief devoted
most of its discussion to two practical points. In the first
section of discussion, it argued that Daubert should be applied
flexibly through the exercise of case-by-case discretion by trial
courts, with the four Daubert factors being treated as permissive
and non-exclusive.6 In the second part of the discussion, the
brief addressed the need to clarify the procedures required by
Daubert, emphasizing the decision should be construed to require
a full Daubert hearing only if the court was confronted with
strong prima facie evidence of fundamentally flawed methodology.7
In unanimously holding that Daubert applies to
experience-based expert testimony, the United States Supreme
Courts opinion in Kumho carefully addressed the concerns raised
in Professor Saltzburgs amicus brief; though ruling against the
result the petitioners favored, the Court favorably viewed most
if not all of the specific points that the amici pressed.
Kumho repeatedly emphasized that the Daubert test is a
flexible one and draws no bright-line requirements; the opinion
stressed that Daubert vests trial courts with broad discretion to
use or ignore its four-factor analysis, depending on whether the
court finds it helpful in deciding the specific issue at hand.8
Similarly, the Court stressed that the four factors articulated
in Daubert are neither mandatory nor exclusive, and can be
supplemented or disregarded when they are not useful.9 In
addition, Kumho made it clear that a full Daubert hearing is
needed only in exceptional cases, when case-specific evidence
raises a genuine issue as to basic reliability that is, when the
[expert] testimonys factual basis, data, principles, methods, or
their application are called sufficiently into question.10
At its core, then, Kumho views Daubert as a flexible,
fact-specific, and non-exclusive approach that invites, rather
than restricts, trial court discretion:
The conclusion, in our view, is that we can
neither rule out, nor rule in, for all cases
and for all time the applicability of the
factors mentioned in Daubert, nor can we now
do so for subsets of cases categorized by
category of expert or by kind of evidence.
Too much depends upon the particular
circumstances of the particular case at
issue.[11]
This flexible and individualized reading of Daubert
answers almost every practical concern raised in the Kumho amicus
brief. Of course, as todays opinion notes, Kumho did not end the
debate over Daubert; some commentators and a handful of cases
continue to criticize Daubert and Kumho.12 The opinion quotes
conclusory passages from these critics but fails to examine their
conclusions for accuracy and merit; nor does it consider the
contrary views advanced by other authorities concluding that
these criticisms simply misunderstand Daubert and Kumho.13
Given the flexible nature of Kumhos holding, a
sufficient answer to the Daubert questions raised here is that
the superior court properly applied the broad discretion given to
it by Kumho in declining to require objective verification of the
experience-based testimony offered by Stirling and Dr.
Rubenstein. Both witnesses had abundant experience in long-
recognized, widely practiced, and thoroughly vetted disciplines.
To the extent that they proposed to testify on matters beyond
their particular expertise, the superior court appropriately
limited the scope of their testimony. And although Marron
purported to challenge their basic methodologies, her supporting
pleadings suggested only that their opinions at most might
reflect incorrect applications of accepted principles in reliable
fields of specialized knowledge. The superior court correctly
recognized this kind of alleged inaccuracy as garden variety
impeachment for cross-examination, so the record suggests no
abuse of the broad range of trial court discretion granted by
Kumho. I would dispose of this case on these narrower grounds.14
Instead, todays opinion goes out of its way to disclaim
Kumhos useful elaboration of Daubert. While professing to
constrain its ruling to the situation before us, the opinion
expansively describes the situation as encompassing all cases
involving the admission of expert testimony based on accrued
wisdom and personal experience.15 This category could easily
cover all expertise except pure theoretical science. The breadth
of this ruling is especially striking because the main source the
opinion cites to support such a categorical restriction on
Daubert the Kumho amicus brief repeatedly warned as does Kumho
itself against attempts to draw categorical lines in this
difficult area of the law.
In my view, the opinions bright-line rejection of
Daubert and Kumho is needless, and it is sure to stir more
trouble than it settles.16 I thus concur in the result reached
by the opinion on the Daubert/Kumho issue but decline to join in
its unnecessary rationale. I agree in all other aspects with the
opinion.
_______________________________
1 Both parties agree that Stromstads vehicle had stopped
at a red light and then bumped the car ahead, in which Marron was
a passenger, when the light turned green.
2 509 U.S. 579 (1993) (governing admissibility of expert
scientific testimony in federal courts). Daubert and its progeny
will be discussed more fully infra in Part IV.C.
3 974 P.2d 386, 394-95 (Alaska 1999).
4 Civil Rule 68 generally provides enhanced attorneys
fees to a party that obtains a better result after trial than was
offered by or to that partys opponent.
5 The total amount of fees awarded to Stromstad was
$49,458.52.
6 Fletcher v. S. Peninsula Hosp., 71 P.3d 833, 844
(Alaska 2003).
7 DeNardo v. ABC Inc. RVs Motorhomes, 51 P.3d 919, 922
(Alaska 2002).
8 Getchell v. Lodge, 65 P.3d 50, 53 (Alaska 2003).
9 Laidlaw Transit, Inc. v. Crouse ex rel. Crouse, 53 P.3d
1093, 1097 (Alaska 2002).
10 Kava v. Am. Honda Motor Co., Inc., 48 P.3d 1170, 1173
(Alaska 2002).
11 Getchell, 65 P.3d at 53 (quoting Bierria v. Dickinson
Mfg. Co., Ltd., 36 P.3d 654, 656 (Alaska 2001)).
12 Kava, 48 P.3d at 1173.
13 Id.
14 Cizek v. Concerned Citizens of Eagle River Valley,
Inc., 71 P.3d 845, 848 (Alaska 2003).
15 Id.
16 Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001).
17 DeNardo v. ABC Inc. RVs Motorhomes, 51 P.3d 919, 928
(Alaska 2002).
18 Id. at 925.
19 Marron cites cases from a variety of other states to
support her argument, particularly Elkins v. Sykens, 672 So. 2d
517 (Fla. 1996). In Elkins, the intermediate appellate court had
held that a court may compel production of an expert witnesss tax
returns or other business records only under the most unusual or
compelling circumstance. Id. at 521. The Florida Supreme Court
affirmed, rejecting arguments for ordering production of tax
records similar to Marrons arguments in this case. The court
noted that physician-experts tax records only emphasize in
unnecessary detail that which would be apparent to a jury on the
simplest cross-examination. It endorsed a reasonable balance
between a partys need for information concerning an expert
witnesss potential bias and the witnesss right to be free from
burdensome and intrusive production requests. Id. at 522.
Courts in at least two other states have used a similar
balancing test, heavily weighted against forcing expert witnesses
to produce their income tax records. See Ex Parte Morris, 530
So. 2d 785, 789 (Ala. 1988) (weighing liberal discovery rules
against the emerging qualified privilege disfavoring disclosure
of ones income tax records and finding any incremental value of
information in such records substantially outweighed by prejudice
production imposes on non-party over non-controlling issue);
Allen v. Super. Ct. of Contra Costa County, 198 Cal. Rptr. 3d
737, 740-41 (Cal. App. 1984) (holding that when considering civil
rights against abusive discovery and state constitutional right
to privacy, court must carefully weigh privacy rights of non-
parties against factors including the real needs of the litigant
who seeks discovery, and court abuse[s] its discretion when it
fail[s] to require a less intrusive method of discovery such as
conducting a deposition without production of records).
Contrary to Marrons assertion, Rowe v. State Farm, 670
So. 2d 718 (La. 1996), does not squarely resolve this issue, or
support the sweeping statement that 1099s are discoverable. As
Stromstad notes, the plaintiff in Rowe apparently had no
opportunity whatsoever to discover evidence of an opposing
experts bias prior to trial. And as Marron herself explains, the
court in Rowe found that without access to the financial records
of an opponents expert witness, the plaintiff w[as] unable to
prepare for or offer any meaningful cross-examination to refute
[the experts] claims of experience or want of prejudice. In this
case however, Marron managed to depose both Rubenstein and
Stirling, and to meaningfully cross-examine both of them to
expose their bias, all without access to their tax records.
All of the other cases cited by Marron reversed trial
court exclusions of evidence of expert witnesses bias at trial,
but did not grant discovery of witnesses tax or financial
records. Mitchell v. Glimm, 819 So. 2d 548, 553 (Miss. App.
2002) (reversing bar on plaintiff introducing evidence that ten
percent of income of opposing experts employer derived from
research conducted on behalf of opponents insurer); Yoho v.
Thompson, 548 S.E.2d 584, 585-86 (S.C. 2001) (allowing plaintiff
to question defense expert as to his extensive consulting work
for defendant insurer); Lombard v. Rohrbaugh, 551 S.E.2d 349, 353
(Va. 2001) (where general prohibition on mention of insurance
interferes with litigants right to cross-examine witness
concerning interest or bias, trial court should not prohibit
proper cross-examination). These cases are thus not at odds with
the superior courts decision, which expressly permitted the
introduction of evidence of the experts alleged bias at trial.
20 71 P.3d 833 (Alaska 2003).
21 959 P.2d 1247 (Alaska 1998).
22 We reject Marrons contention that it is only the
patient who may offer the treating physician as a non-expert, for
in Miller it was the defendant who called the plaintiff/patients
treating physician as a non-expert witness. Miller, 959 P.2d at
1250.
23 Glover v. Western Air Lines, Inc., 745 P.2d 1365, 1370
(Alaska 1987).
24 See, e.g., Vent v. State, 67 P.3d 661, 670 (Alaska App.
2003).
25 509 U.S. 579 (1993).
26 State v. Coon, 974 P.2d 386, 388, 394-95 (Alaska 1999).
27 See, e.g., Amorgianos v. Natl R.R. Passenger Corp., 303
F.3d 256, 264-70 (2d Cir. 2002) (affirming under Daubert district
courts decision to exclude treating physicians testimony that
exposure to paint solvent caused injury); Turner v. Iowa Fire
Equip. Co., 229 F.3d 1202, 1207 (8th Cir. 2000) (treating
physicians opinion on causation subjected to same standards of
scientific reliability that govern expert opinions of physicians
hired solely for litigation). Note that other courts have
refused to apply Daubert in this fashion. See, e.g., Rogers v.
Secy of Health & Human Servs., 2000 WL 1337185, *4 (Fed.Cl. 2000)
(noting that Third and Fourth Circuits admit treating physicians
testimony under Daubert even when unsupported by scientific
studies).
28 Dekerlegand v. Wal-Mart Stores, 2000 WL 1772651, *1
(E.D. La. 2000) (citing Patel v. Gayes, 984 F.2d 214, 218 (7th
Cir. 1993) (holding doctor is not expert if testimony is based on
observations during course of treatment, not developed in
anticipation of litigation, and based on personal knowledge)).
29 Id.
30 Miller ex rel. Miller v. Phillips, 959 P.2d 1247, 1250
(Alaska 1998).
31 Ferrell v. Baxter, 484 P.2d 250, 267 (Alaska 1971).
32 Johns Heating Serv. v. Lamb, 46 P.3d 1024, 1034 (Alaska
2002).
33 Id. at 1039.
34 Id. (quoting Colt Indus. Op. Corp. v. Frank W. Murphy
Mfr., Inc., 822 P.2d 925, 932 (Alaska 1991)) (emphasis in
original).
35 See supra at Part IV.B.2.
36 974 P.2d 386 (Alaska 1999). As we noted in Coon,
Daubert requires a trial court, when assessing scientific
evidence, to determine . . . whether the expert is proposing to
testify to (1) scientific knowledge that (2) will assist the
trier of fact to understand or determine a fact in issue. Id. at
390 (quoting Daubert, 509 U.S. at 592). We have noted that
[t]his two-step inquiry requires a preliminary assessment of
whether the reasoning or methodology underlying the testimony is
scientifically valid and of whether that reasoning or methodology
properly can be applied to the facts in issue. Coon, 974 P.2d at
390 (quoting Daubert, 509 U.S. at 592-93). The Supreme Court has
provided a non-exclusive list of factors that can be considered
in making these determinations, including (1) whether the
scientific theory or technique has been empirically tested, (2)
whether it has been subject to peer review and publication, (3)
whether the known or potential error rate of the theory or
technique is acceptable, and (4) whether the theory or technique
has attained general acceptance. Daubert, 509 U.S. at 593-94.
37 Coon, 974 P.2d at 390 (quoting Daubert, 509 U.S. at 592-
93).
38 Id.
39 Id. at 399 (emphasis added).
40 The court did limit Dr. Rubensteins testimony in one
respect: Considering his lack of expertise in biomechanics, the
court refused to allow Dr. Rubenstein to testify as to whether an
accident at a particular speed could cause a certain type of
damage.
41 Daubert, 509 U.S. at 590. Our opinion in Coon is
equally limited to scientific testimony. Coon, 974 P.2d at 402.
42 526 U.S. 137, 147 (1999).
43 See supra n.36. See also Ratliff v. State, 110 P.3d
982, 985 (Alaska App. 2005) (What Kumho Tire requires trial
judges to do is evaluate whether the Daubert factors are
pertinent to assessing the methodological validity of the
particular challenged evidence in their case.) (emphasis in
original); Nelson v. Tennessee Gas Pipeline Co., 243 F.3d 244,
250 (6th Cir. 2001) (noting that Daubert requires trial judge to
ensure that any and all scientific . . . evidence admitted is not
only relevant, but reliable.).
44 We have, however, cited Kumho Tire approvingly on one
occasion to support a different point about the Daubert analysis.
Samaniego v. City of Kodiak, 80 P.3d 216, 220 & n.14, 15 (Alaska
2003) (citing Kumho Tires clarification that Daubert factors are
flexible and not all-inclusive).
45 Coon, 974 P.2d at 390.
46 See, e.g., id. at 391; Castillo v. E.I. Du Pont De
Nemours & Co., Inc., 854 So. 2d 1264, 1276 (Fla. 2003).
47 Coon, 974 P.2d at 391. We emphasized our reluctance to
be bound by the Supreme Courts conclusions by the following
summary of our holding in Coon:
Thus, expert opinion evidence is admissible
if the trial court (exercising its authority
under Rule 104(a)) determines that (1) the
evidence is relevant (Rule 401); (2) the
witness is qualified as an expert (Rule
702(a)); (3) the trier of fact will be
assisted (Rule 702(a)); (4) the facts or data
on which the opinion is based are of a type
reasonably relied upon by experts in the
particular field in forming opinions upon the
subject (Rule 703); and (5) the probative
value of the evidence is not outweighed by
its prejudicial effect (Rule 403).
Id. at 393.
48 Id. at 391.
49 Carter v. State, 766 N.E.2d 377, 381 (Ind. 2002).
50 See, e.g., David Crump, The Trouble With Daubert-Kumho:
Reconsidering the Supreme Courts Philosophy of Science, 68 Mo. L.
Rev. 1, 11-14 (2003); John H. Mansfield, An Embarrassing Episode
in the History of the Law of Evidence, 34 Seton Hall. L. Rev. 77
(2003) (the title of this article refers to Kumho Tire); Derek L.
Mogck, Are We There Yet?: Refining the Test for Expert Testimony
Through Daubert, Kumho Tire and Proposed Federal Rule of Evidence
702, 33 Conn. L. Rev. 303 (2000); Mark Lewis & Mark Kitrick,
Kumho Tire Co. v. Carmichael: Blowout From the Overinflation of
Daubert v. Merrell Dow Pharmaceuticals, 31 U. Tol. L. Rev. 79
(1999); Kimberly M. Hrabosky, Kumho Tire v. Carmichael:
Stretching Daubert Beyond Recognition, 8 Geo. Mason L. Rev. 203
(1999).
Among the most prominent critics of the approach
adopted by the Supreme Court was Professor Stephen A. Saltzburg,
one of the authors of the Kumho Tire respondents amicus brief.
Brief of Amicus Curiae Margaret A. Berger, Edward J.
Imwinkelried, & Stephen A. Saltzburg, 1998 WL 739321, Kumho Tire
Co. v. Carmichael, 526 U.S. 137 (1999) (No. 97-1709). See also
Stephen A. Saltzburg, Questioning the Judicial Role in Dealing
With Expert Testimony in Complex and Non-Complex Cases, 3 Sedona
Conf. J. 185 (2002). Professor Saltzburg was Reporter for the
Rules of Evidence, Advisory Committee on the Rules of Evidence to
the Supreme Court of Alaska, see Introduction to Commentary to
Alaska Rules of Evidence, and thus one of the main architects of
the Alaska Rules of Evidence and the Commentary to Alaska Rules
of Evidence. His critiques of Kumho Tire are thus especially
persuasive.
51 Daubert, 509 U.S. at 588, 589.
52 Id. at 588 (internal citations omitted).
53 Widmyer v. Southeast Skyways, Inc., 584 P.2d 1, 8
(Alaska 1978).
54 Coon, 974 P.2d at 390, 391, 394-96.
55 See, e.g., Mogck, supra n.50, at 321.
56 Id. at 322 (quoting Marilee M. Kaspa & Carl B. Meyer,
Scientific Experts: Making Their Testimony More Reliable, 35
Cal. W. L. Rev. 313, 319 (1999)).
57 Stephen A. Saltzburg, Questioning the Judicial Role in
Dealing With Expert Testimony in Complex and Non-Complex Cases, 3
Sedona Conf. J. 185, 185 (2002).
58 Mogck, supra n.50, at 315-18 (internal citations
omitted).
59 See Logerquist v. McVey, 1 P.3d 113, 125-30 (Ariz.
2000) (holding that [t]he result reached in Kumho . . . would
seem directly opposed to the principle of liberalized
admissibility that engendered the abolition of Frye, and
approaches a reduction or obliteration of the jury function);
Gilkey v. Schweitzer, 983 P.2d 869, 871 (Mont. 1999) (The Daubert
test should only be used to determine the admissibility of novel
scientific evidence) (internal citations omitted); Watson v. Inco
Alloys Intl, Inc., 545 S.E.2d 294, 301 n.11 (W.Va. 2001)
(declining to extend Daubert by Kumho Tire).
60 Daubert, 509 U.S. at 590 (internal citations omitted).
61 Id. (internal citations omitted, emphasis in original).
62 Kumho Tire, 526 U.S. at 146.
63 Edward J. Imwinkelried, The Next Step After Daubert:
Developing a Similarly Epistemological Approach to Ensuring the
Reliability of Nonscientific Expert Testimony, 15 Cardozo L. Rev.
2271, 2285 (1994).
64 Brief of Amicus Curiae Margaret A. Berger, Edward J.
Imwinkelried, & Stephen A. Saltzburg, 1998 WL 739321 at *2, Kumho
Tire Co. v. Carmichael, 526 U.S. 137 (1999) (No. 97-1709).
65 Id.
66 Id. at *5.
67 Id. at *5-6.
68 Id. at *2.
69 Id. at *11.
70 Id. at *13.
71 Id.
72 Daubert, 509 U.S. at 595.
73 Federal R. Evid. 702; Alaska R. Evid. 702.
74 Id.
75 Federal R. Evid. 703; Alaska R. Evid. 703.
76 Federal R. Evid. 706; Alaska R. Evid. 706.
77 Federal R. Evid. 403; Alaska R. Evid. 403.
78 Daubert, 509 U.S. at 596.
79 Id. Marron had ample material with which she might
have discredited Dr. Rubenstein and Stirling through effective
cross-examination. Marron put forth numerous arguments
challenging the relative value of the studies and reports relied
on by Dr. Rubenstein. Additionally, Dr. Rubenstein himself
admitted at trial that he had not performed a complete
neurological examination of Marron. Stirling did not personally
inspect Marrons or Stromstads vehicle, and based his opinion
entirely on photographs. Stirling also admitted that he was
unsure of the weight of the vehicles, or whether Marrons car was
stopped or moving when it was struck.
80 456 P.2d 453 (Alaska 1969).
81 Id. at 457-58.
82 Id. at 458.
83 See, e.g., INA Life Ins. Co. v. Brundlin, 533 P.2d 236,
244 (Alaska 1975) (though medical expert speculated as to exact
cause of cardiac arrest and freely admitted he had no data on
which to base an opinion, his conclusion that cardiac arrest was
surgery-related was not speculative; conclusion was based on
statistical unlikelihood of cardiac arrest and fact that known
potential causes were mainly surgery-related).
84 See, e.g., Sirotiak v. H.C. Price Co., 758 P.2d 1271
(Alaska 1988).
85 770 A.2d 36 (Del. 2001).
86 Id. at 38.
87 Id.
88 Id. at 38, 40, 43.
89 See, e.g., Mason v. Lynch, 822 A.2d 1281, 1284-85 (Md.
App. 2003) (holding that trial court in low-speed impact case
acted within its discretion in admitting photographic evidence
without expert testimony); Spedick v. Murphy, 630 A.2d 355, 364
(N.J. Super. App. Div. 1993) (same).
90 Because we have determined that the admission of Dr.
Rubensteins testimony was proper (see supra Part IV.D), we need
not address this portion of Marrons argument.
91 Poulin v. Zartman, 542 P.2d 251, 261 (Alaska 1975),
disavowed on other grounds by State v. Alex, 646 P.2d 203 (Alaska
1982).
92 See supra Part III.
93 Kava v. Am. Honda Motor Co., Inc., 48 P.3d 1170, 1173
(Alaska 2002); Trobough v. French, 803 P.2d 384, 385 (Alaska
1990).
94 Alaska Childrens Servs., Inc. v. Smart, 677 P.2d 899,
901 (Alaska 1984).
95 Getchell v. Lodge, 65 P.3d 50, 53 (Alaska 2003).
96 See, e.g., Peters v. Benson, 425 P.2d 149 (Alaska
1967).
97 See Marsingill v. OMalley, 58 P.3d 495, 505 n.27
(Alaska 2002) (suggesting in dictum that comment during closing
argument that plaintiff is asking you to basically take
everything hes worked for his whole life might readily have been
understood as an improper suggestion that a judgment awarding
damages against [the defendant] would not be covered by his
insurance).
98 Peters, 425 P.2d at 153.
99 Id.
100 Marron retorts that [s]topping to exchange insurance
information is not direct evidence of liability insurance. A
common-sense reading of exchange in this context necessarily
involves mutuality, but Marron suggests that this could instead
imply that only she was covered. Marron opted not to cross-
examine Stromstad as to the meaning of his assertion. Marron
essentially argues that the jury interpreted Stromstads ambiguous
request not to pay as indicating a lack of insurance, but then
refused to interpret his obvious statement we exchanged insurance
information as indicating that he was covered. The superior
court did not abuse its discretion in ignoring this specious
argument.
101 State Farm Mut. Auto. Ins. Co. v. Weiford, 831 P.2d
1264, 1269-70 (Alaska 1992).
102 As noted supra in Part II, the superior court awarded
Stromstad seventy-five percent of two-thirds of his requested
attorneys fees.
103 Stromstad argues that he submitted a seven-page
affidavit itemizing reasonable and necessary attorney fees
incurred. We agree with the superior court that this affidavit
generally described the subject matter and litigation events that
generated fees, but there was no itemization of the hours of work
that led to the fees.
104 Rule 68(b) applies where, as here, a party makes an
offer of judgment prior to trial, the offer is rejected, and then
the judgment following trial is at least 5 percent less favorable
to the offeree than the offer. Rule 68(c) states that a party
awarded fees under Rule 68 may not also recover fees under Rule
82.
105 Koller v. Reft, 71 P.3d 800, 810 (Alaska 2003) (citing
Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123, 1138
(Alaska 1989)). Unsurprisingly, Stromstad insists that his fee
award was in fact reasonable. But a litigants self-servingly
conclusory statements, such as Stromstads comments that his fee
award was manifestly reasonable and even extremely generous to
Marron, do not suffice to fulfill this itemization requirement.
106 While Marrons argument before this court and the
superior court was incorrectly based on Rule 82 instead of Rule
68, we hold that the itemization requirement applies equally to
fee awards pursuant to either rule when the award is for
reasonable actual attorneys fees. Marrons mistake is excusable
in light of the fact that Stromstad also relied on Rule 82, both
before the superior court and on appeal.
107 Nichols v. State Farm Fire & Cas. Co., 6 P.3d 300, 305
(Alaska 2000) (quoting Jones v. Jones, 925 P.2d 1339, 1340
(Alaska 1996)).
108 Federal courts have held similarly. See, e.g.,
Naporano Iron & Metal Co. v. U.S., 825 F.2d 403, 404 (Fed. Cir.
1987) (absent itemized statement, the court is unable to
determine whether the hours, fees and expenses, are reasonable
for any individual item).
1 Slip Op. at 19.
2 Id. at 26.
3 Id. at 22 n.50, 25-26. The amicus brief was filed
jointly by three law school professors: Margaret A. Berger,
Edward J. Imwinkelried, and Stephen A. Saltzburg. See 1998 WL
739321 (U.S.).
4 Kumho, Amicus Brief at 2.
5 Kumho, Amicus Brief at *2-3 (emphasis added).
6 See, e.g., id. at *18-19 (emphasis added) (internal
footnotes omitted):
Our point is there is an enormous range of
scientific and technical fields in which
experts apply their own personal experience
and that of their colleagues in assessing
case-specific facts, and reaching a somewhat
subjective conclusion. Rule 702 still
requires the trial court to determine that
the witness specialized knowledge will assist
the trier of fact. But experience-based
knowledge should not be automatically
inadmissible because it cannot be verified by
an objective test. The Eleventh Circuit was
correct in ruling that such testimony falls
outside the scope of Daubert, at least in the
sense that its admissibility should not be
gauged solely in terms of the four factors
mentioned in Daubert.
7 See, e.g., id. at *24:
Common sense suggests that if an opponent has
produced not a single expert prepared to
testify that the testimony of the targeted
expert is methodologically flawed, the
district court should not be required to
engage in Rule 104(a) factfinding, and should
be permitted to deny the motion outright. . .
.
Where an opponent does file a motion in
limine, supported by proper record materials
demonstrating one or more flaws that appear
to undermine the reliability of the targeted
experts testimony, then a district court
should act with equal dispatch in granting
the motion unless the proponent comes
forward[.]
8 Kumho, 526 U.S. at 149-50.
9 Id. at 150.
10 Id. at 149.
11 Id. at 150.
12 Slip Op. at 22 n.50.
13 Cf. Watson v. INCO Alloys Intl, Inc., 545 S.E.2d 294,
301 n.11 (W.Va. 2001) (asserting that it is the restrictive
interpretation of Kumho anticipated by some commentators that is
causing confusion (emphasis added)).
14 Notably, as a justification for departing from the
trial courts more conventional rationale for its ruling, which
accepted Daubert and Kumho as applicable law, the opinion
approvingly cites commentator Derek Mogck for the proposition
that Dauberts requirements can also be easily exploited by
litigants, leading to mini-trials, a prolonged discovery process,
and prohibitive costs to both parties and the court. Slip Op. at
23 & n.58 (citing Derek L. Mogck, Are We There Yet?: Redefining
the Test for Expert Testimony Through Daubert, Kuhmo Tire and
Proposed Federal Rule of Evidence 702, 33 Conn L. Rev. 303, 315-
18). Yet one would be hard pressed to find support for this
proposition in Judge Morses ruling here, which easily avoided
being exploited: The judge properly recognized that no lengthy
Daubert/Kumho hearing was required on the issue; and he correctly
parsed the admissible portions of the expert testimony from the
excludable ones without conducting a mini-trial on admissibility.
15 Slip Op. at 28.
16 The opinion suggests that, as applied to experience-
based testimony, Dauberts gatekeeping approach is needless
because other evidence rules, including rules dealing with
admission of non-expert testimony, are sufficient to protect
against inadmissible expert testimony. Slip Op. at 27-28. But
in contrast to fact witnesses, experts testify without any first-
hand knowledge of a specific case. To do so, they must satisfy
the trial court, as a threshold matter, that they are qualified
to give expert opinions and that the expertise they offer will
assist the trier of fact. Alaska R. Evid. 702(a). Because the
court screens and accepts experts according to these criteria
before allowing them to state their opinions, jurors naturally
see experts as special witnesses who testify with the courts seal
of approval, both as to their qualifications and their ability to
be of assistance. These unique attributes counsel against
treating expert and lay witnesses alike and put a premium on
ensuring that courts get it right when they approve experts as
qualified and capable of assisting the jury. Regardless of
whether the experts testimony purports to draw on experience or
scientific training, how can a court go about deciding if the
testimony can actually assist the trier of fact, Alaska
Evidence Rule 702, or if its probative value will outweigh its
prejudicial impact, Alaska Evidence Rule 403, if the basis of the
experts opinion falls outside the common experience of the court
and the jury and cannot be explained in understandable terms?
Contrary to the Kumho amicus briefs suggestions, Rule 703s
general acceptance test by itself is hardly a satisfactory
standard in these situations, since it enables any circle of self-
proclaimed experts to establish its own reliability by self-
referentially declaring its expertise to be of a type reasonably
relied upon by experts in the particular field. Slip Op. at 27
(quoting Alaska R. Evid. 703).
