Daubert Factors: What the Supreme Court Says About Inspectors as Witnesses

By D. Jeffrey Craven

Originally published in the April/May 2014 edition of Hardwood Floors Magazine.

An article from the December 2013/January 2014 issue talked about the importance of inspector certification and qualifications, arguing that the case U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals Inc.1 held that judges should consider four factors to recognize whether an expert has specialized knowledge. The citation was used in part to emphasize the importance of certification of inspectors, and specifically argued for the importance of the NWFACP. Here, I offer some legal critique and counter to that article.

What Did Daubert Hold?

After an inspector conducts an inspection and renders an opinion on causation for a failed product or installation, if the parties continue to disagree about that opinion, they may go to court to get a determination from a judge or jury as to who is really responsible. That inspector can render an opinion as an expert. But before the inspector can render an opinion as an expert, the inspector has to be qualified by the judge. Usually that process involves each lawyer questioning the inspector about the inspector’s qualifications and methodology used to render the opinion. Daubert addressed the issue of when and whether a federal judge can exclude an expert witness from testifying in court.

Historically federal judges had relied upon a standard set forth in Frye v. United States2, which held that for expert opinions to be admissible, the opinion methodology must have gained general acceptance in the particular field to which it belongs. However, long after that 1923 case, the U.S. Supreme Court adopted the Federal Rules of Evidence, and in particular Rule 7023, which addressed the admissibility of expert opinions.

What the Court in Daubert actually held was that Rule 702 superseded the Frye standard, which meant that federal courts could no longer rely (solely) on the Frye standard in evaluating the admissibility of expert testimony. The court also held that federal court judges act as “gatekeepers” and went on to identify as guidelines four factors that federal court judges could use in evaluating the admissibility of expert testimony.

Since Daubert, there have been two additional cases4 in which the Supreme Court evaluated and upheld the federal trial court judges’ decisions to exclude expert testimony, both applying the four factors set forth in Daubert. However, in neither of those Supreme Court cases did the Court require the use of the Daubert factors. Instead the Court reinforced that Rule 702 was intended to provide the federal judge presiding over the case with flexibility in deciding the admissibility of expert opinion evidence, noting that the decision on admissibility still turns on the particular circumstances of the case.

As of this writing, not all state courts have adopted the Daubert holding, in part because not all states have adopted Rules of Evidence that follow the federal Rules of Evidence. So, while Daubert and the cases that followed it may provide some guidance, they will not be applicable in every case.

Do Daubert Factors Make Better Inspectors?

The implication from the prior article is that compliance with the Daubert factors is what makes an inspector be “considered an expert witness.”

This implication begs the question “expert for what?” In fact, an inspector could have all of the Daubert factors and the opinion could still be excluded. What if the industry standard upon which the expert relies directly conflicts with the manufacturer’s installation instructions? In such instance, that expert’s opinion might not be applicable. Likewise, an expert may have an opinion that has been tested in a laboratory and might for that reason seem sound, while failing to account for real conditions and adjustments required for the particular location and installation.

The point being, following the Daubert factors guarantees neither an opinion’s admissibility nor its infallibility.

What Is the Value of Certification?

On its own, certification only establishes proof that the inspector acquired the particular skills for which the certificate was given. It does not necessarily render an inspector’s opinion more or less credible.

This is not to say certification has no value. At the least, the underlying training of inspectors that gives rise to certification can and should improve the consistency of the opinions issued. An inspector who is trained, tested and proven to conform to a methodology should, by following that methodology, produce consistent results given standardized facts. That does not guarantee that certification produces better quality opinions, as the results will be dependent upon the quality of the training, the underlying methods upon which it is based, and whether that methodology and the underlying industry standards sufficiently address all potential variables in the field.

At some level certification is a double-edged sword. Where an inspector strictly relies upon the methodology for such certification and fails to account for facts or variables that fall outside of that methodology, the inspector’s opinion may be meaningless. Conversely, where an inspector deviates from the methodology upon which the certification is based, the opinion is likewise open to attack, and both the expert’s credibility and the credibility of the certification and its supporting methodology may be questioned.

What About Experience?

Field experience cannot be discounted. An installer working in a particular region for 15 years should have more knowledge and understanding of the particular conditions and requirements for wood installation in that region than an inspector who relies primarily or solely upon a particular industry testing procedure. Note that proficiency in testing according to industry methods only provides consistent data, but the interpretation of that data requires an understanding of how that data is applied in the field.

What Does All This Mean?

Mere reliance on Daubert factors, industry standards and certification is no guarantee of the admissibility of an opinion, nor is an opinion not based on such factors necessarily inadmissible. That said, true industry standards can help both installers and manufacturers of wood flooring products.

Having a standard can help defend against owner abuse by defining reasonable care, and can be used to defeat claims of improper installation or defective materials when the owner is placed on notice and accepts that the owner’s choice of product is unsuitable for their application.

Training to that standard helps achieve industry consistency and reliability of results. But in the end, the ultimate success of the NWFACP program will depend upon its continual acceptance by practitioners at different levels of the industry.

1113 S.Ct. 2786 (1993)

2293 F. 1013 (D.C. Cir. 1923)

3Fed.R.Evid. Rule 702 provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

b) the testimony is based on sufficient facts or data;

c) the testimony is the product of reliable principles and methods; and

d) the expert has reliably applied the principles and methods to the facts of the case.

4General Electric Co. v. Joiner, 522 U.S. 136 (1997) and Kuhmo Tire Co v. Carmichael, 119 S.Ct. 1167 (1999).

5In other words, while the four factors set forth in Daubert may provide some guidance, the U.S. Supreme Court acknowledged they may not always be applicable. Thus, it is this author’s opinion that the prior article arguing that Daubert set forth the four factors that “judges should look at” is actually a misstatement of the law and the holding of Daubert and its progeny.