Kumho Tire Company, Ltd. v. Carmichael – Oral Argument – December 07, 1998

Media for Kumho Tire Company, Ltd. v. Carmichael

Audio Transcription for Opinion Announcement – March 23, 1999 in Kumho Tire Company, Ltd. v. Carmichael

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William H. Rehnquist:

We’ll hear argument first this morning in Number 97-1709, the Kumho Tire Company v. Patrick Carmichael.

Mr. Babington.

Joseph H. Babington:

Mr. Chief Justice, and may it please the Court:

We are here today because the circuit court unduly restricted the district court’s evaluation of the reliability of certain expert testimony offered by respondents.

The Eleventh Circuit barred the district court from considering the reliability factors set forth in this Court’s decision in Daubert v. Merrell Dow.

If permitted to stand, the Eleventh Circuit’s decision would allow experts to escape scrutiny under the reliability factors merely by invoking experience in some broad sense as a basis for testimony.

At some point during your argument… I just am troubled by this, and wish you would address it.

It sounded to me as if your expert, the defense expert, used just about the same methodology as the plaintiff’s expert.

He talked about over-deflected operation because of severe beading, groove compressions, the discoloration on the side, and I don’t know if it’s waiver, or estoppel, or stipulation, but it seems to me that this is what your expert was talking about, too, and I’m troubled by it.

Just during the course of your argument, if you could mention that.

Joseph H. Babington:

Justice Kennedy, we disagree with that interpretation of the record.

First, the… it it is clear that the petitioners’ expert physically examined the tire before he issued his report.

The respondents’ expert, by contrast, issued his report containing his conclusion before conducting any physical examination of the tire.

In addition, there was a completely different methodology that was used, and that’s what troubled, most troubled the district court.

The methodology used by the respondents’ expert was a process of elimination, rule of thumb methodology that we pointed out in our briefs, and by contrast, our expert used a methodology that asked very broadly, what are the causes, why did this tire come out of service, and in asking that looked at all of the evidence and did not limit his consideration of the evidence just to eliminating certain factors of abuse.

The principal attack in the briefs, as I understood it, on the plaintiff’s expert was that he had these four factors.

Now, I recognize that he said, if there are four and any two are present, then I’ll make one conclusion, and you may argue about that, but so far as the factors that he uses, i.e., the discoloration, the beading, et cetera, they were the same, were they not, as your own expert?

Joseph H. Babington:

They looked for the same evidence on the tire in some respects.

The respondents’ expert, of course, limited his consideration, did not look for particularly affirmative evidence of defect.

But the major difference was the way that they… the method that they applied to get from what they saw on the tire to their ultimate conclusion in the case, and our point is that a district court, in evaluating the reliability of expert testimony offered by parties before a court should not be prohibited from considering the logical, common sense questions that flow out of this Court’s Daubert factors, broadly understood.

The lower courts have applied and understood the Daubert factors in a flexible, broad manner, as this Court intended.

Well now, let me ask you something.

The Eleventh Circuit apparently reviewed the decision of the trial court to apply the Daubert standard de novo.

The Eleventh Circuit looked at that de novo, said it was a question of law and it would look at it de novo, but I think acknowledged that the ultimate decision of the district court whether to exclude the evidence should be reviewed on an abuse of discretion standard.

Now, I’m a little confused.

What is the standard we should apply to this question that you present us with here?

Do we look at it de novo, or do we look at it under an abuse of discretion standard?

Joseph H. Babington:

The standard of review of the Eleventh Circuit’s holdings that were the basis for its decision should be reviewed de novo.

The Eleventh Circuit made two errors of law.

First, it crafted this experience exception that I was discussing, which is that if an expert invokes experience–

Well, let me back up, then.

What standard of review should the Eleventh Circuit have applied, abuse of discretion, or some de novo review, or a combination of the two?

Joseph H. Babington:

–Well, I think it would be a combination.

Certainly as to the standard that should be applied, that’s a question of law.

Our point is that the Eleventh Circuit erred in how it interpreted this Court’s Daubert decision.

In footnote 8 in Daubert, this Court said, our discussion is limited to the scientific context, because that was what was before the Court.

Well, certainly Daubert itself indicated that it was dealing there with some kind of scientific evidence, and it didn’t purport to establish some global principles of the four factors in every case, did it?

Joseph H. Babington:

Well, the… what we contend the Court did in Daubert was to set forth general, broad, common sense criteria that courts can use to determine the reliability of a broad range of expert testimony.

Well, there’s a lot of discussion about whether we should look to a standard that directs the trial judge’s attention to indicia of reliability in the field at issue.

I mean, what is it regarding this issue in the field that is recognized as legitimate for an inquiry?

Now, is there anything in this record to show that the district court made any findings on the indicia of reliability that prevail in the tire manufacturing field?

Joseph H. Babington:

Yes.

If you look at the district court’s opinion on reconsideration, I think it’s specifically discussed in the joint appendix at pages 91 and 92.

The district court considered the respondents’ argument that the respondents’ expert did the same thing as the petitioners’ expert, and that there was evidence in the record that supported the view that what the respondents’ expert did was commonly accepted.

Everyone did it this way.

And the district court specifically rejected that, saying that the evidence before the court did not establish that.

At most, all it established was that the two experts used the same method of… or technique of gathering data, and that’s really not that surprising.

You should look first to the product in question to gather your data.

What most troubled the district court was the methodology, how the experts got from the information on which they were basing their opinion to their ultimate conclusion, and as this Court pointed out in Joiner, the ipse dixit of the expert is insufficient to support the ultimate conclusion.

There must be some objective validation or criteria that the district court can look to.

How does the district court otherwise know that the expert’s not just making it up, and that’s really the point of our argument, that the district court, in answering that central question, should be allowed to ask the logical, common sense questions that flow out of this Court’s Daubert criteria.

Well, does the record show the district court looked at anything other than the four Daubert factors?

Joseph H. Babington:

Absolutely.

What the district court did was consider the fact, the logical flaws in the respondents’ expert’s approach.

For example, that even though he had a methodology, he didn’t even apply the methodology in this case.

Instead of physically examining the tire first, he looked at photographs of the tire, and he admitted that he didn’t know whether his past analyses of failed tires had ever been correct.

Mr. Babington, there’s circulating now a proposed revision of Rule 702, and that is set forth in the appendix to the respondents’ brief.

It says there are three things to look at, 1) the reliability of the facts, the reliability of the principles and method, and finally the reliability of the application.

Would you think that that’s an adequate statement?

You tell us that the Eleventh Circuit is no good because they removed all of the standards.

Daubert, on the other hand, has these four factors, and the district court did organize its decision under those.

But suppose we had, instead… suppose the district court or the Eleventh Circuit had said, Daubert is too rigid, we like these standards, would that be acceptable?

Joseph H. Babington:

Well, we think that the proposed rule merely is an attempt to put down more clearly the existing law, is what I understand that the advisory committee is attempting to do.

It is a mere proposal.

It hasn’t been acted on yet.

But that standard is an effort by the advisory committee to put down in the rules what the lower courts have thought about how they should assess reliability of expert testimony following this Court’s landmark Daubert decision, and under the new rule, or under the… so to answer your question, the answer really wouldn’t be any different.

The Daubert criteria, broadly understood and flexibly applied, lead to exactly the type of questions that the district court asked of this expert to determine if his testimony was more than just his say-so, more than just guesswork or speculation.

What you are saying, Mr. Babington, I take it, is that the Daubert opinion dealt with kind of scientific peer review type of evidence, but that the gatekeeper function extends beyond that to anything covered by Rule 702 when it’s dealing with expert evidence.

Joseph H. Babington:

That’s correct, Mr. Chief Justice.

We are saying that it’s clear that the gatekeeper function applies to any expert offered under Rule 702.

The respondents agree with that.

The Solicitor General agrees with that.

I don’t think any of the amici seriously question that.

That’s very clear.

Well, you’re contending more than that.

You’re contending, as well, that the Daubert factors can be applied to any expert testimony.

Joseph H. Babington:

What we’re–

Are broadly applicable to any expert testimony, not exclusive, but broadly applicable.

Joseph H. Babington:

–That’s correct, Justice Scalia.

What we are saying is that the gatekeeper function definitely applies to all experts, and then in how the judge exercises his gatekeeper function to determine whether there is a reliable foundation for the expert testimony that’s been proffered involves his asking of questions such as those that logically flow out of the Daubert factors.

Not all.

Not all would do that.

I mean, wouldn’t it depend on whether the shoe fits?

I mean, why couldn’t you have an expert in painting, a great expert, and he looks at that and says, this is deep magenta.

I don’t even know what magenta is.

[Laughter]

And you say, how do you know?

How do you know?

He says, I’ve looked at 50,000 paintings.

Believe me, I work for the Philadelphia Museum of Art, I’ve looked at so many, I know.

I recognize it.

You wouldn’t apply Daubert factors in such a case.

I mean, isn’t it Daubert factors where they belong, when you’re trying a general theory, and some other thing where it’s not?

Joseph H. Babington:

Justice Breyer–

Is that right, or not?

Joseph H. Babington:

–Justice Breyer, we agree that the Daubert factors can be flexibly applied–

No, flexibly… what in my deep magenta case… you know, the Daubert factors are whether the technique or theory used could be tested or refuted, whether it’s been a subject of peer review, the rate of error.

I mean, think of my artist, my artist expert.

He says, I’ve seen 50 million paintings.

Believe me, I know deep magenta when I see it.

The Daubert factors have no bearing there, do they?

Joseph H. Babington:

–We agree that in certain cases it may be appropriate not to apply–

All right.

Then if that’s so, why did you answer Justice O’Connor the way you did?

Why wouldn’t it be whether the shoe fits, i.e., whether the Daubert factor applies here or not, is a matter for the district judge, subject to review for abuse of discretion?

Joseph H. Babington:

–Well, the district… our point is that the district judge should be allowed to ask the logical, common sense questions.

I’m asking my question.

My question is, why did you reply to Justice O’Connor by saying… why didn’t you say… I want you to have a chance… whether you apply the Daubert factors or whether you apply my deep magenta, which is experience, depends on the circumstance.

The circumstance is up to the district judge, reviewable for abuse of discretion in the court of appeals.

Now, you either agree with that, or you don’t.

I want to know if you agree with it and, if you don’t, why not?

Joseph H. Babington:

We think that the broad–

Do you agree with what I said or not?

Joseph H. Babington:

–We think that the broad standard should be that… reviewable as for… under… as I understood, Justice O’Connor’s question was, what was the standard of review, and the standard is a matter of law.

Now, how that standard is applied is for abuse of discretion.

I’m sorry, I still want to know if you agree with the way I put it.

You don’t have to agree by any means, but I’d really like to know.

I… do you want me to repeat it again, or not?

Joseph H. Babington:

No.

I think I understand the question, which is that in certain cases, would a district court be wrong, or would he err in not applying the Daubert factors.

Joseph H. Babington:

Is that the–

No.

My question is whether the shoe fits, whether you apply Daubert factors to an expert or something else, like deep magenta, experience, whether you do one or the other depends on whether the shoe fits in the particular case.

It’s up to the district judge, reviewable for abuse of discretion.

Whether our case is a case involving a general, testable theory, or our case is a case involving reliance upon the expert’s personal experience, whether it’s the one or the other is up to… you see what I’m saying?

Am I clear?

Joseph H. Babington:

–I think, you know, we’re arguing over semantics.

Where I’m having trouble with your question is, I think that the standard is a legal standard, reviewable de novo, but how that standard is applied in a particular case is reviewable by abuse of discretion.

I thought your… are you going back on your brief?

I thought your brief’s position was, it’s always okay to use the Daubert standards, and even in the deep magenta case, is it relevant that his estimation of what is deep magenta is not susceptible to testing or falsification?

Suppose you have another witness who says, yes, I’ve also examined 100, and I have had my judgment tested by one methodology or another.

Isn’t it relevant whether it’s subject to testing or falsification?

Joseph H. Babington:

Exactly.

Our point is that the district court should be allowed to ask these questions as appropriate–

It’s never wrong–

Joseph H. Babington:

–in every case.

–It’s never wrong to ask those questions.

Joseph H. Babington:

Right.

If–

Isn’t that your position?

Joseph H. Babington:

–Yes.

If the proponent of the evidence, Justice Scalia, comes forward and says, this factor should not be given much weight in this case, then, of course, the court can say, as this Court noted in Daubert, that perhaps peer review isn’t something that would be applicable in every case, and it should be given little or no weight, and the–

Isn’t it applicable in every case?

If you have two witnesses, and one of them comes up with a magenta kind of stuff, and the other one comes up with something that seems equivalently fuzzy but he says, and by the way, my judgment as to these 1,000 paintings was subjected to peer review, and the entire artistic community agreed with me, wouldn’t that make his testimony more reliable?

Joseph H. Babington:

–That’s exactly our point.

It should be based on the evidence that’s before the court.

It may be that in a particular case the expert can’t trace from the facts to the conclusion by–

Questions are always relevant.

Aren’t the questions always relevant?

Joseph H. Babington:

–The questions are always relevant, absolutely.

Joseph H. Babington:

That’s our point.

How about the beehive keeper that the Eleventh Circuit fastened on as an example of somebody who has great expertise based on constant observation, but the Daubert factors don’t seem to fit that kind of expert.

Joseph H. Babington:

Our point, Justice Ginsburg, is that it’s… the district court should be allowed to ask those questions and have the expert explain why the particular question flowing out of one of the Daubert criteria doesn’t apply to that particular expert, but we believe the beekeeper can be adequately reviewed under the Daubert factors.

I think one of our amici, the Product Liability Advisory Council, in fact, in their footnote 12 in their brief, pointed out that there are studies dealing with beekeepers that actually speak to the issue that’s mentioned in that analogy.

I would like to reserve the–

May I ask you one last–

–Just one–

–Justice Stevens.

I just wanted… you didn’t really have much chance to respond to Justice Kennedy’s beginning question.

You did point out that the man who testified had not looked at the tire.

It is your view, though, is it not, that even if Edwards had been the witness, his testimony would also have been inadmissible.

Joseph H. Babington:

–That’s correct.

So it isn’t a matter of not having looked at the tire.

Joseph H. Babington:

That’s correct.

We’d like to reserve the balance of my–

I have one last question I’d like to ask you.

Do I understand you correctly that your position is that the Daubert factors are always relevant, that the four Daubert questions may always properly be asked, but there are some cases in which an expert might flunk on all four Daubert factors and nonetheless properly be admitted to testify.

Is that–

Joseph H. Babington:

–That’s correct, if there was some objective, other objective support that the expert could put forth to show that his testimony was based on good grounds on proper validation.

I’d like to reserve the balance.

–Thank you, Mr. Babington.

Mr. Minear, we’ll hear from you.

Jeffrey P. Minear:

Mr. Chief Justice, and may it please the Court:

The United States submits that the court of appeals erred in holding that expert testimony based on experience is categorically exempt from the reliability analysis that this Court described in Daubert.

Daubert makes clear that a trial judge must ensure that expert testimony, whatever its subject matter, rests on a reliable foundation and is relevant to the task at hand.

This Court did not draw distinctions in that respect between expert testimony that rests on scientific principles and expert testimony that rests on experience, nor did it lay down iron-clad rules governing what reliability factors a trial judge may properly consider.

Instead, the court recognized that the reliability inquiry is a flexible one, and that a trial judge should be able to call upon the full range of relevant considerations in determining whether the expert testimony is sufficiently reliable to assist the trier of fact.

The Daubert decision did identify four general factors that a court may find useful in assessing an expert’s methodology.

Mr. Minear, do you agree that as a general matter the trial court judge should exercise the gatekeeping function–

Jeffrey P. Minear:

Certainly.

–of 702 by looking to the indicia of reliability prevailing in the relevant discipline?

Jeffrey P. Minear:

We think–

Is that what they do?

Jeffrey P. Minear:

–We think that is a relevant consideration and, in fact, broadly speaking, that is reflected in one of the Daubert factors, whether there’s general acceptance of the opinion that’s expressed, but we also believe that that’s only one factor, and–

What if there’s no standard of… I mean, what if there’s no standard of reliability in the relevant discipline?

I mean, what if there is a whole cadre of tire examiners out there, all of which use, you know, witchcraft science?

[Laughter]

Do you have to say, well, since there are no standards of reliability in this field, we have to let any expert testify?

Jeffrey P. Minear:

–Certainly not.

We think the ultimate responsibility for the trial judge is to make a rational determination of whether the evidence is sufficiently reliable to assist the trier of fact.

If there is no indicia of reliability whatsoever, if the field is simply raft with odd theories that cannot be reconciled and have never been tested, and we think that’s an important consideration for the trial judge to take into account, and would most likely exclude that type of evidence.

Now, the Court did identify those four factors–

Do you think that in this case the district court’s decision not to admit the testimony should have been affirmed?

Jeffrey P. Minear:

–Yes, we do, Your Honor.

We believe that the trial court here did not abuse its discretion in determining that Mr. Carlson’s methodology was not sufficiently reliable.

And you think that the court of appeals should review it on an abuse of discretion standard, that we don’t have some issue of law here?

Jeffrey P. Minear:

That is correct, although there is an issue of law here, based on what the court of appeals said.

The court of appeals established as a matter of law, so it said on page 104 of the joint appendix, that Daubert does not apply to this type of expert.

In a sense, it created a categorical exemption for this type of evidence, and–

–And the district court, I assume, on your theory would have committed an error of law if it had said, the four Daubert factors are the only things we ever consider and if, in fact, one flunks the four Daubert factors, that as a matter of law precludes the testimony, that would have been a legal error, too–

–That would have been a legal error–

–taken to the other extreme.

Jeffrey P. Minear:

–Yes.

I agree with that, Justice–

Indeed, that would have been a legal error even with regard to the most scientific of scientific testimony, wouldn’t it?

Jeffrey P. Minear:

–I think that’s right.

An example, perhaps, to explain that would be a statistician who offers a theory that… Bayes’ theory on statistics, and he attempts to validate that theory simply by a logical proof, and he goes step by step and proves that that statistical theory is accurate.

That’s sufficient basis for it to be admitted without testing, without peer review, without the other requirements.

In this case, would it have been error to admit the expert’s testimony?

Jeffrey P. Minear:

Would… it would have been… would it have been error to admit… I think under these circumstances we would think that it would have been an abuse of discretion.

Would not?

Jeffrey P. Minear:

Would have.

Would have.

Jeffrey P. Minear:

It affirmatively would have been an abuse of discretion.

And is that because there was nothing to link the experience with the conclusion that he was ready to offer?

Jeffrey P. Minear:

That’s correct.

If Mr. Carlson was simply testifying on his own visual examination of the standards of abuse on the tire, we don’t think that that would necessarily be an abuse of discretion.

The problem with Mr. Carlson’s testimony here was there was nothing to support his ultimate conclusion that there must be a defect.

His… there was no way in which the trial court… this is what concerned the trial court.

There was no way it could validate his opinion that because there are only marginal signs of abuse, there must be a defect, and that’s where his focus was.

It would be as if in Justice Breyer’s hypothetical he said, this is magenta, and therefore it must have been based… it must have been painted over a canvas that had been sprayed with dye.

Jeffrey P. Minear:

That’s correct.

In other words, you’re drawing is an analytical leap, to use the language that was set forth in Joiner, that simply was not justified on a rational basis alone, and that’s why the court here thought it necessary to make a further inquiry.

Now, all four of the inquiries it made were highly pertinent to that question.

If Mr. Carlson’s testimony was, in fact, accurate, if his methodology was accurate, then it should be susceptible to testing.

What was really concerning the trial court here was that there was no testing that was done here, and there was no way to know whether any of Mr. Carlson’s projections or predictions with respect to defects had ever been proved.

Now–

May I ask, if there had been… the plaintiffs had gotten some expert testimony, would the respondent’s expert witness testimony have been admissible?

Jeffrey P. Minear:

–We think the… excuse me, the respondents’ expert?

I mean… I’m sorry, I got it backwards, the petitioners’ expert.

The defendants’ expert.

Would that testimony have been admissible had it been necessary to reach, you know, a conflict in the evidence?

Jeffrey P. Minear:

Yes, I think so, and what we had here, what we could have had here would simply be a dispute over whether or not the tire was abused, in which case the petitioners’ expert and respondents’ expert did use similar methodology with regard to examining the tire, saying what they found and what they concluded from that with regard to abuse.

The problem in this case is that respondents have to prove that there is a defect.

They had no affirmative evidence of a defect, and they relied on this process of elimination theory to reach that conclusion, and that’s where the trial court said there was simply too far of an analytical leap simply to say that, well, we’ve looked at the tire and there’s only marginal signs of abuse, so there must be a defect, even though there was no evidence of a defect and the expert was unable to prove that whenever this situation occurs there in fact is a defect.

There was never any controlled laboratory test to establish the veracity or corroborate that conclusion.

Well, you would agree… I mean, depending on how broadly you mean the word abuse… would a road hazard be an abuse?

I mean, you know, you non-negligently run over a nail in the road.

You consider that abuse?

Jeffrey P. Minear:

Yes, if–

Okay.

Jeffrey P. Minear:

–If abuse is read broadly enough.

Is read broadly.

Now, is it a rational proposition that if a tire has not been subject to abuse and fails, it must have been because of a manufacturing defect?

Jeffrey P. Minear:

No, I don’t think that necessarily follows.

Well, what else could it be due to?

Jeffrey P. Minear:

The tire could simply wear out.

In this case, 90 percent–

Oh, okay.

Jeffrey P. Minear:

–of the tread was gone.

The tire was bald.

Well, you’re not defining abuse broadly enough, then.

Jeffrey P. Minear:

Yes.

I don’t believe that Mr. Carlson defined abuse that broadly.

I mean, he did do it in the context of the service life of the tire, so I think that it depends if… the problem with the process of elimination–

He didn’t say there was no abuse.

He said there was no evidence of abuse.

That was the real logical flaw in his analysis, wasn’t it?

Since I cannot find evidence of abuse, it must have been a manufacturing defect.

I might have gone along with him if he had said, since there… since I can testify for sure there was no abuse, reading abuse broadly, including running the tire too long, running over a nail and everything else.

Jeffrey P. Minear:

–Well, I think even he agreed that there were some signs of abuse, although he discounted them based on his experience and the like, so I don’t think that he testified that there was no evidence of abuse.

I think actually his testimony was that oh, yes, there is shoulder wear on the tire, but I ascribe that to causes other than abuse.

But the real problem here was that leap that, well, simply because I only see these signs of abuse, the tire must be defective.

The problem with the process of elimination approach is, you must make sure that you’ve eliminated all of the possible causes, and certainly there are many tabloids that reported flying saucers based on a flawed process of elimination technology.

Many magic tricks turn on a flawed process of elimination basis to trick the viewer.

And that’s why I think the trial court was rightly skeptical of the application of a process of elimination theory without any sort of supporting corroboration that would indicate that that process was, in fact, valid, and that again was what I think really concerned the trial court.

If there are no further questions, thank you.

Thank you, Mr. Minear.

Mr. Jackson, we’ll hear from you.

Sidney W. Jackson:

Thank you, Mr. Chief Justice Rehnquist, and may it please the Court:

Sidney W. Jackson:

First, to set the record straight about what the trial court said about applicable Alabama law in this diversity case, on page 36 of the joint appendix the Court discounted the attack on a process of elimination form of proof.

Despite defendants’ exhortations to the contrary, the court perceives no inherent flaw in a process of elimination form of proof per se, as long as the underlying methodology is scientifically valid.

Under Alabama law–

Excuse me.

You say this is 36 you were just reading from?

I can’t find where you’re–

Sidney W. Jackson:

–Footnote 7.

–Of the joint appendix, you said?

Sidney W. Jackson:

Yes, sir, of the joint appendix, Your Honor, page 37, footnote 7 in the court’s first order.

36, footnote 7.

Sidney W. Jackson:

I’m sorry, judge… justice… Mr. Justice Scalia, page 36, yes, sir, and that flows from the Hillhaven Farms v. Sears case, which interpreted Alabama law in a tire failure case where the plaintiff did not rule out abuse, and the case was sent back in order that the plaintiff could do such… put on such proof.

Well, how much of this, Mr. Jackson, is controlled by Alabama law and how much by the Federal law of evidence?

Sidney W. Jackson:

Your Honor, the substantive Alabama law would be applied to see whether or not we have presented sufficient proof to let a defect go to the jury.

Yes.

Sidney W. Jackson:

The Federal Rules of Evidence, of course, will apply on what evidence comes in and what evidence does not come in, so it would be the Federal Rules of Evidence who make procedural–

So then, what is the relevance of Alabama law to this particular case and this question we have before us now?

Sidney W. Jackson:

–Your Honor, the relevance of Alabama law deals directly with the reliability and relevance of what Mr. Carlson was going to do in this case.

Well, if you say… but that… what Mr. Carlson was trying to do was to qualify himself as an expert, was he not?

Sidney W. Jackson:

Yes, sir, and his qualifications–

Why would Alabama law control whether or not the district court should admit his testimony under Rule 702?

Sidney W. Jackson:

–It would not, Mr. Chief Justice.

Then why are you saying what you are?

Sidney W. Jackson:

Because the petitioners take the point, or take the standpoint in their briefs and down below that this type of expert testimony cannot lead anywhere in the context of the facts of this case, and certainly his testimony, his proffer can, because we know that if abuse is ruled out as the cause of the Carmichaels’ tire failure, then whether or not the tire failed due to a defect is properly an issue for the jury.

It’s a question of fact.

And here, Mr. Carlson was going to take the tire, he was going to take it in front of the jury, he was going to explain that, based on his years of experience at Michelin in watching thousands of tires fail and examining the carcass of those tires, that there would be four signs, objective indicia of abuse, and he would show where those signs should be, and he would point to the sidewall deterioration and show–

I did not understand that he was going to say that there could be no abuse unless he found signs of abuse.

Was he willing to say that, that he could guarantee the jury that if there was any abuse, I would have seen signs of abuse?

Sidney W. Jackson:

–No, Your Honor, he could not guarantee the jury that.

Well, if he can’t do that, then he can’t eliminate abuse, and if you can’t eliminate abuse, you cannot make the assumption that there must have been a manufacturing defect.

Sidney W. Jackson:

Well–

He can just say, I didn’t see any signs of abuse.

Sidney W. Jackson:

–Well, Justice Scalia–

But there may have been abuse that I… that didn’t produce any signs, and as long as there’s that gap, it seems to me you never get to the conclusion.

Sidney W. Jackson:

–Yes, Your Honor, but this is not a production burden issue.

The issue here is whether or not this testimony should be admitted to begin with, and what factors the court should or should not look at in determining that threshold of reliability in order to allow him to testify, because what Mr. Carlson is going to do is to take a fairly mundane object, a tire, and he is going to assist the jury in reading that tire.

I understand what you’re saying, if he was being introduced to the jury simply to prove the point that there were no objective indicia of abuse, but that isn’t what he testified.

He testified to the jury, there was a manufacturing defect in this tire, and he could not testify to that unless he could testify that if there had been abuse, I would have seen some objective indicia of it, and you say he didn’t testify that and couldn’t testify that.

Sidney W. Jackson:

Justice Scalia, I believe the record will show that Mr. Carlson, the expert, candidly stated that he cannot point to the specific defect.

That is next to impossible in a tire failure case.

But what he can do is, is he knows to look for certain types of objective indicia to rule out abuse and the Eleventh Circuit cited the–

He couldn’t rule out abuse.

I thought you answered my question–

Sidney W. Jackson:

–Then I misspoke.

–that he never testified that if there was abuse, I would certainly have seen indicia of it.

Did he say that?

Sidney W. Jackson:

Well, he stated that if there is abuse, there are four common signs that are apparent in most all tires that fail due to abuse, and most tires do fail due to abuse, and he would rule those out.

In essence, he would show a negative to determine whether or not this–

I think all he could have testified to was, I saw no signs of abuse.

Now, maybe that expert testimony could go to the jury.

Sidney W. Jackson:

–I believe that is sufficient, Your Honor.

But he wanted to testify to more than that.

He wanted to testify to the jury, ladies and gentlemen of the jury, this tire was defectively manufactured, and he had no basis, scientifically or otherwise, for that conclusion.

Sidney W. Jackson:

Well, his basis would be, based on his experience, that if you do not see those signs of abuse, then the only conclusion is that it failed due to a defect, and at least that should be sufficient, with the other evidence we have, to determine whether or not there is a proper question for the jury.

Unless there was abuse that left no signs.

Sidney W. Jackson:

Well, we propose, Justice Scalia, that would go to the weight and not the admissibility, and if that were a consideration, I believe Mr. Dodson, the expert for the tire industry, would have said, no, these signs are totally off the wall.

That doesn’t mean anything.

The methodology is incorrect.

I don’t think it goes to the weight at all.

I think it goes to the conclusion.

I think it is logically impossible to testify that there was a manufacturing defect unless you can say, if there had been abuse, I would have seen signs of it, and you tell me he couldn’t testify to that.

He could testify that normally, usually when there is abuse, some sign is there.

Sidney W. Jackson:

There are four signs.

But he couldn’t say… he couldn’t say that there was always a sign.

Sidney W. Jackson:

Well, but again, the calculus that has to be invoked here is Alabama substantive law.

We do not have to prove a specific defect.

To do so, we would have to go back to Korea and depose the people that made the tire on a specific day, and do it that way.

Under Alabama law, the negligence is placing a defective product in the stream of commerce that reaches the end user in a dangerously defective condition.

It lightens up the burden of having to go prove a specific defect, and this case, along with a lot of cases cited by the Government in their brief, is perfect area of testimony for experienced-based testimony.

But how… yes.

You’ve put your finger on just the question that’s bothering me.

In this case, I take it he said, if you don’t find the abuse factors, then, he says, it’s probably a bad tire.

Sidney W. Jackson:

Probably a bad tire–

Yes.

Now–

Sidney W. Jackson:

–but you have to look.

–Yes, but the look is out of this.

that wasn’t what was… that’s a different issue.

I don’t think look, except in… he says, these are the factors.

Tread wear, sidewall deterioration, something called beading, and something on a flange.

And the judge is thinking to himself, now, wait a minute, here.

I have a tire that’s gone perhaps 100,000 miles, it’s bald in places, it’s had a nail driven into it, the nail hole seems not… what do you mean, if those four factors aren’t there there’s only abuse.

I mean, it has to be a defect.

There are all kinds of other things here.

So he says to the expert, expert, you mean to say even in a tire like this one, in the absence of those four factors there had to be a defect?

What about the nail?

What about the bald spot?

What about all that stuff?

And the expert says, no, in my experience if those four factors aren’t there, there’s a manufacturing defect, and at that point the judge is thinking, my goodness, what kind of a theory is that?

Is there any other expert who believes that?

And that is what it seems to me is in front of us.

Has the judge abused his discretion in that circumstance to say, if there’s some theory that without those beading problems, it’s a manufacturing defect, and nails don’t count, and 100,000 miles doesn’t count, if there’s scientific theory like that, you’d better tell us what it is, because you couldn’t have had that much experience.

Now, that’s… I’d like to hear your response.

Sidney W. Jackson:

To answer your question on the abuse of discretion from a factual standpoint–

Uh-huh, yes.

Sidney W. Jackson:

–first, Mr. Carlson did rule out other causes such as cuts, puncture holes.

He did look at those, and so that one goes to weight and not the admissibility.

The age of the tire is a problem.

This was not a brand new tire, but it was not an illegal tire.

It had enough tread to make it legal under the Alabama standards.

Your witness thought it was 10 years older than it was, as I recall.

Sidney W. Jackson:

Yes, Your Honor.

That’s what he said, initially.

Sidney W. Jackson:

They don’t know the exact date, but the tire was made in 1988, yes, sir.

Yes, and he said ’78 in his initial–

Sidney W. Jackson:

I believe that was a typographical error in the report.

–Which he repeated in the later deposition as well.

Sidney W. Jackson:

Yes, sir, that’s correct.

I thought where you were going when you began your argument was to say, the only thing relevant so far as this expert’s testimony is concerned, was whether there had been signs of abuse.

After that, Alabama law would take care of it.

But that was not my understanding of his affidavit.

I thought he went on to say that because of my examination with reference to abuse, I find that it was due to a defect.

Now, that’s a big difference.

Sidney W. Jackson:

He does make that conclusion, Justice Kennedy, and that is in his affidavit.

As far as proof at trial, which we haven’t gotten there yet–

Well then, it isn’t just abuse that we’re talking about.

Sidney W. Jackson:

–Well, I believe ruling out abuse–

It’s this very, very critical leap, or inference from the finding of no abuse, okay, expert testimony on that is… it’s subject to expert testimony, Daubert evaluation.

Maybe he makes… maybe he makes it through the Daubert gate, but then he goes on to say, and because there was no abuse, it was a defect.

Sidney W. Jackson:

–I don’t believe this expert will ever make it through the Daubert gate, because he is experience… he has experience-based–

Well–

Sidney W. Jackson:

–testimony.

He will fit in the fourth criteria, I believe, if it is not limited to the scientific community.

–Mr. Jackson, looking for perhaps the larger implications of this case, do you defend the Eleventh Circuit’s splitting off expert testimony into scientific testimony and nonscientific testimony to be treated quite differently in light of the gatekeeper function?

Sidney W. Jackson:

Mr. Chief Justice Rehnquist, I believe what the Eleventh Circuit did is, they made a distinction without a difference.

They distinguished between scientific and nonscientific.

You know the old saying, there’s more than one way to skin a cat.

That was an easy way to do it, because this expert’s testimony was so far removed from a teratologist that the criteria in Daubert just had no place at all, but we think the better approach, as Professors Berger, Imwinkelried, and Salzburg said, is, you look at the intellectual rigor used in the field in question, and the first thing–

So you don’t really defend the Ninth… the Eleventh Circuit’s reasoning here.

Sidney W. Jackson:

–I do not disagree with the reasoning.

I think they ruled that under U.S. v. Koon, the sentencing guideline case where the judge deviated from the sentencing guidelines, that this was an absolute error of law to incorrectly interpret Daubert and incorrectly apply rule 702, and the Eleventh Circuit has again recently spoken on that in City of Tuscaloosa v. Harsco–

But Mr. Jackson, the division of the world into scientific versus nonscientific… we have two neat boxes, Daubert for scientific, and everything else nonscience.

I think it was convincingly argued that the world is not that simple, that there are shades.

Sidney W. Jackson:

–Yes, Your Honor.

Then there’s a scale from highly scientific, and then going down to pure observation.

Sidney W. Jackson:

Yes, Your Honor.

So it seems to me that the Eleventh Circuit was looking for an easy categorization that just doesn’t conform to reality.

Sidney W. Jackson:

Well, I believe in the Eleventh Circuit, using the beekeeper analogy, they kind of drew a spectrum, beekeepers on one end, teratologists on the other, and said, this tire failure analysis, who gets his hands dirty showing the jury what’s there and what’s not there is more like a beekeeper who has a lot of experience.

But he had a test.

He said, here’s my method, I’ve got these four factors.

Going back to Justice Breyer’s question, isn’t it at least appropriate to ask, do the other experts agree with this four-factor test, and if you don’t find two, whatever his method was.

And on that point, is there anything that attests to the reliability of his method, that four-factor method?

Sidney W. Jackson:

Justice Ginsburg, there is no test known of by any expert in the field that we have come across that can test a failed tire.

It’s like–

And if there were, you think it would have been irrelevant.

Sidney W. Jackson:

–No, Your Honor.

Well then, you think the Daubert factors are relevant.

Let’s take factor number 3, the known or potential error rate.

Sidney W. Jackson:

There’s no–

Suppose your witness, your expert witness had been able to come to the court and tell the judge, my observations have been… have been tested by later experts and I have been found to be accurate 95 percent of the time.

You think that would have been irrelevant.

Or, suppose–

Sidney W. Jackson:

–No, Your Honor.

I don’t believe it would be irrelevant.

–Suppose he came in and said, my methodology has been reported in Tire Testing Journal and has been approved by… you know.

That would have been irrelevant?

Sidney W. Jackson:

I do not believe that would be irrelevant, but it just does not exist in this field.

That is like checking a cadaver for reflexes.

A failed tire does not have the testability that a tire before it fails does.

Merely because your answer to a question is no does not mean that the question is irrelevant.

Sidney W. Jackson:

I understand, Your Honor.

The answer might have been yes, so the question is relevant, and that’s all we’re talking about, whether the Daubert factors are relevant.

Sidney W. Jackson:

Yes, Your Honor, but the point I’m not very eloquently making is, you need to look at the field to see if those questions are relevant, not just apply the questions in a one-size-fits-all wooden, rigorous approach that the trial court did here.

Look at what–

Well, you have to look to the field to see whether you should have expected a yes answer, perhaps.

Sidney W. Jackson:

–Well–

It seems to me the questions can always be asked.

Sidney W. Jackson:

–They can always be asked, and there’s flexibility in Daubert, we agree, but in the field of tire failure analysis, handwriting analysis, trace evidence analysis, finger printing analysis, you never really know if you’re correct, so to do what the petitioners want is to have a… to have a… there must be some validation by objective criteria is not in Rule 702.

No, I don’t think that’s what he’s arguing at all.

He said in response to my question that all four Daubert factors may properly be applied.

They are always relevant, but one might flunk every single one of them and yet nonetheless produce admissible testimony because there would be other good reasons to let it in, and there would be good reasons to discount the failure to meet the Daubert factors.

That’s all he’s saying.

Sidney W. Jackson:

We agree with that proposition.

You accept that proposition?

Sidney W. Jackson:

Yes, sir.

Then don’t you necessarily have to accept the position that the Eleventh Circuit was wrong in making this categorical exclusion of relevance based on drawing a line between what is in some pure sense scientific and what is not?

Wasn’t that at least an error of law on the circuit’s part–

Sidney W. Jackson:

Your Honor–

–to draw that categorical distinction?

Sidney W. Jackson:

–I don’t believe that was an error of law, Your Honor.

The result is correct, and they determined that woodenly, rigidly applying Daubert is an error of law.

Sidney W. Jackson:

They used a distinction between scientific and nonscientific like the Sixth Circuit did in City of Detroit, but when they–

Didn’t they do so in order to exclude the four considerations as distinct from saying the four considerations are always relevant but may be of little or no weight?

Isn’t that the… the failure to draw that distinction I think may be attributed to the circuit.

Sidney W. Jackson:

–Yes, Your Honor.

And wasn’t that failure an error of law?

Sidney W. Jackson:

Well, I still don’t believe that was an error of law.

They remanded saying that the Daubert factors may be applied by the district court, but that the district court should not put himself in the place of the jury or in the adversarial system.

Well, of course, our Joiner opinion says the court of appeals shouldn’t place itself in the place of the district court, either, that they’re supposed to review a question of admissibility like this on an abuse of discretion standard, which the court of appeals certainly didn’t do here.

Sidney W. Jackson:

That’s correct, Mr. Chief Justice Rehnquist, but this is not a Joiner case.

In Joiner, the parties argued over what methodology was proper in trying to find out whether PCB’s caused lung cancer, and there were tests on mice where they would inject things in the stomach, and then they would develop one type of cancer, and the parties never agreed on this is the correct methodology.

Here, the record evidence, the only record evidence below is that this protocol, this methodology, I gather the information, I study it, I look for abuse, I make a conclusion, is the exact methodology used by Mr. Carlson and Mr. Dodson, and it is what is validated by the marketplace for this information.

That wasn’t the reason in the court of appeals.

Sidney W. Jackson:

It… no, Your Honor, and as we said, the court of appeals, their opinion did not leave much guidance on what the court should do below.

But recently they have cleared that up in City of Tuscaloosa v. Harsco, where ironically they reversed a judge kicking out a statistician saying he did not fit under Daubert by saying, you must look at the field in issue.

You must look at the reliable indicators for a statistician, and the court said that man, that statistician can testify, and I think increasingly in the lower courts they are not woodenly and rigidly applying Daubert because it’s a useless task in a lot of–

So is that… maybe we… there’s a kind of general agreement here, I don’t know, but at least with the Solicitor General, and is it the case that you agree… in your experience as a trial lawyer… you’re experienced with the… the object is to let the district court do its job, and its job is a gatekeeping job with all these experts.

Are you with… you agree with that?

Sidney W. Jackson:

–I agree with that.

All right, and then you’d also agree that there isn’t a rigid categorization as between science or not where you could say the Daubert test is or is not useful.

The answer is both within and outside something that the Harvard University would call science or something.

I mean, sometimes within that, sometimes outside of it the Daubert’s helpful, sometimes it’s not helpful.

Sidney W. Jackson:

I agree.

All right.

So that should be up to the district… to the trial judge to say which is which.

Reviewable for abuse of discretion in the court of appeals?

Sidney W. Jackson:

Let me answer you this way.

I agree with the Solicitor General saying that a flexible approach is appropriate.

Where we disagree is saying that this trial judge or any district court judge can select the wrong criteria, and that be only an abuse of discretion.

I don’t know–

Sidney W. Jackson:

That’s an error of law based on a misinterpretation of Rule 702, which 702 does not say you’ve got to have objective validation.

Sidney W. Jackson:

It does not say you’ve got to have peer review and publication.

–But that converts the abuse of discretion standard into almost a de novo standard if you pick out something that the district court did and say, well, this was an error of law and therefore we’re not going to use abuse of discretion.

Certainly just because the court of appeals disagrees with the district court as to its use of a particular factor, that’s not an error of law.

Sidney W. Jackson:

Mr. Chief Justice Rehnquist, I believe again the Joiner case is a good example where the district court judge had to make a judgment call on what criteria is appropriate to this health case based on exposure, and that should be reviewed for abuse of discretion.

I believe that will be a fairly rare case.

You take a tire failure expert, these gentlemen basically do the same thing, and if the court, the trial court makes the inquiry initially to the parties, what’s this expert about, what is this testimony about, he’s probably going to get fairly similar criteria, and that can be borne out in the record.

Like in this case, there’s no evidence saying this protocol is not proper.

In fact, I don’t think they can.

But they’re not saying that this… I would guess, let’s see what you respond, that the hardest… maybe you could win even under an abuse of discretion standard.

I don’t know.

Sidney W. Jackson:

Depends on which way the judge rules.

[Laughter]

Well, the hardest… but imagine you’re in the Eleventh Circuit applying abuse of discretion standard.

I guess the… in my mind, anyway, I think the hardest question for you would be, you’d say, well, look, there is a theory going on here that in the absence of these four specific factors, not any kind of abuse but four kinds, beading, flange, whitewall discoloration, and some other thing, that your expert seems to say, in the absence of those four things, it must have been defect.

And immediately a common sense person thinks, what?

You mean nails couldn’t be an abuse?

You mean, it’s bald couldn’t be an abuse?

And the expert says… if the expert then says, well, I have a lot of experience at this, you say, wait a minute.

You couldn’t have seen hundreds or thousands of tires that have had two nails… you know, two nails driven into them, and they’re bald, and they’ve gone 100,000, and you’ve found the absence of this stuff, and yet you still… that’s impossible.

You’re going on some theory, and if you’re going on some theory, you tell me who else believes that theory.

Do you see what I’m saying?

I’m saying you’d have to deal with that question, and your response to that question would be?

Sidney W. Jackson:

My response to that question would be, the two nail holes, it’s being run a long time, it’s not the best tire on earth, that goes to the weight and not the admissibility of this testimony, and this testimony is certainly reliable, because this expert did consider the nail holes, he did consider the bald spot, and he had an answer for that.

It may not be an answer that the jury believes, but it’s based on reliable experience with the leader in the tire industry, namely, Michelin.

They paid for that type of work for 10 years while he was at Michelin, and that goes to the soul of 702, knowledge.

And it didn’t say knowledge based on joining a science club or something like that.

Knowledge can be based on knowledge, under Rule 702.

It can be based on experience, or skill, or training, or education, and those factors go to the inquiry of the relevancy.

And then does his testimony fit?

Well, certainly it fits, because he saw this same thing happen, so he says, at Michelin, and again, if that’s not good enough for the jury, that’s fine, but 702 is to enable the jury to hear all of this testimony and then the judge should determine, have we sustained our burden, producing enough evidence to get it to the jury.

Sidney W. Jackson:

That’s all we ask to do.

Why don’t we say the same for other experts, then?

I mean–

Sidney W. Jackson:

I’m sorry, Your Honor.

–Just dump it all before the jury.

Ladies and gentlemen, this is an expert.

He has this cockamamie theory–

–that contradicts common sense.

That goes to the weight of whether you should believe him.

[Laughter]

But all of this junk science can come into court.

It just goes to the weight.

Sidney W. Jackson:

Well, Your Honor, this is not junk engineering.

It is based on valid, reliable, experience-based testimony.

If there is not a creditable link–

I’m not talking about this case.

Sidney W. Jackson:

–I understand.

I’m talking about your theory that it just goes to the weight.

I mean, that’s just not an adequate explanation, if you believe that it’s the role of the judge to stop some cases from going to the jury because there’s simply not enough real evidence to justify a verdict for the plaintiff.

Sidney W. Jackson:

I don’t have a problem with judges stopping some experts from going to the jury, but the judge should not have to be an amateur scientist or an amateur engineer on Tuesday and a statistician on Wednesday.

They’re just not equipped.

And we… we believe that the correct approach, as set out in the amici, is to let the judge ask the parties, what is this field here.

But that doesn’t square with your answer to Justice Breyer.

You don’t have to be an amateur rocket scientist to know that when two nails have been driven into a tire and it’s bald, the absence of four other abuse factors does not suggest that there’s a manufacturing defect, and your only response to that is, that goes to its weight and it should come before the jury.

Sidney W. Jackson:

That is a wonderful cross-examination, but this expert considered those factors, and I think any expert would, and an expert can be ruled out of court if he fails to rule out a crucial test.

On the same page where the judge said he didn’t like our analytical leap from the evidence to the conclusion, he cited the Diviero case.

In Diviero a tire expert was kicked out of court because he did not do exactly what Mr. Carlson did here.

He did not rule out abuse, tire cracking, sidewall deterioration, and they said… and that was based on testimony from the tire industry that unless you rule out abuse, you cannot prove defect.

So in essence what Mr. Carlson did here is something that’s been approved by the industry.

There’s no doubt that the judge should make there be a threshold status of reliability before an expert testifies, but the burden is not as high as petitioners want it.

Sidney W. Jackson:

If the burden is, you’ve got to fit within the Daubert factors, then all of this experience-based testimony, which is by and large used by law enforcement, is in danger.

But it wasn’t just experience-based.

He gave a method, and that’s… it seems to me makes him closer to the aeronautical engineer than the beehive keeper, because he said, now, here’s my theory.

Here are these four things, and if I find two, then it’s one way, and if I don’t, then it’s another way.

That’s not just, now, I look at this and based on my experience reach this conclusion.

Sidney W. Jackson:

Well, I believe that method, so to speak, is to give the tire the benefit of the doubt, because this is not an exact science, and this is subjective, and there’s subjectivity involved, and this expert knows he’s going to get cross-examined about the weaknesses in his testimony.

But I believe the trial judge saw the word, methodology, and immediately leaped into Daubert, and when he could not see an objective test, or objective validation, then he had a big problem with this testimony.

He just did not like it.

But when–

He didn’t stop there.

He went on to see if there were any other justifications, explanations and so forth.

Sidney W. Jackson:

–Your Honor–

He went on to say, you know, it is… it seems to me illogical, he said.

It isn’t just that there are no scientific journals that support it.

It’s not just that there’s no testing or verification.

It seemed to him illogical.

I mean, that’s a bit different from just saying, you know, you fail the four Daubert tests and you’re out of here.

Sidney W. Jackson:

–Well, from the get-go he applied the four factors and we flunked him.

He was asked to apply other criteria, which is referenced in footnote 8 of Daubert, and said those were of dubious merit because the Supreme Court, U.S. Supreme Court did not approve of them explicitly.

Those factors give litigants and courts other criteria to use that may fit the particular field at issue, and again will give judges basis to look at the intellectual rigor, or lack of intellectual rigor, whatever you have, in that field, just like the magenta example.

For an experience-based expert not to be able to give his opinion on something that he has learned in his experience, or in his lifetime, just tears 702 up, which is supposed to be a rule of inclusion.

Thank you, Mr. Jackson.

Mr. Babington, you have 2 minutes remaining.

Joseph H. Babington:

Mr. Chief Justice, and may it please the Court:

Respondents have offered no defense of the Eleventh Circuit’s holding.

This Court should reverse the Eleventh Circuit, because its decision was based on two errors of law.

It’s wrong to take away from the district court the logical, common sense questions that flow from this Court’s Daubert factors.

These questions should be always available to be asked, and the proponent of the evidence can explain why in a particular case they may be inapplicable or entitled to less weight.

We urge the Court to go further and affirm the district court’s holding, because the district court got it right here.

It did not abuse its discretion.

Joseph H. Babington:

The district court considered the respondent’s primary argument before this Court on page 93 in the joint appendix in its opinion on reconsideration, and it said there that the plaintiffs contend that Mr. Carlson’s testimony reveals that the methodology and principles adopted by Carlson are widely accepted in the relevant community.

The court declines to make such a leap. So the district court has already considered the respondent’s primary argument and rejected it, and for these reasons we believe it should be affirmed. If there are no further questions–

William H. Rehnquist:

Thank you, Mr. Babbitt. The case is submitted.