Featured Expert Column—Judicial Gatekeeping of Expert Evidence

Tager_09181Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Carl J. Summers, an Associate with Mayer Brown LLP.

In a victory for keeping junk science out of courtrooms, Missouri recently enacted H.B. 153, which adopts the Daubert standard.

H.B. 153 establishes four criteria for an expert witness’s testimony:

(1) 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; (2) The testimony is based on sufficient facts or data; (3) The testimony is the product of reliable principles and methods; and (4) The expert has reliably applied the principles and methods to the facts of the case.

These criteria mirror Federal Rule of Evidence 702 and the Daubert standard.

Although H.B. 153 applies broadly, it is not universally applicable. It does not apply in certain family and juvenile court proceedings. In addition, H.B. 153 does not permit an expert witness in a criminal case to testify “whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.”

H.B. 153 was backed by a diverse array of businesses and interest groups, including the National Federation of Independent Businesses; Johnson & Johnson; Monsanto; the Missouri Chamber of Commerce and Industry; the Missouri Hospital Association; the Missouri Society of Certified Public Accountants; the Missouri Association of Prosecuting Attorneys; and the Missouri Organization of Defense Lawyers. Proponents of the bill described Daubert as a “best practice standard that requires a judge to act as a gatekeeper to ensure that an expert’s opinion testimony is based upon sound science.” Proponents further argued that the Daubert standard applies fairly to both sides and will facilitate settlement negotiations.

Opponents of H.B. 153 included union representatives and the Missouri Association of Trial Attorneys. They argued that Missouri judges have ample tools to keep “junk science” out of courtrooms and that adopting the Daubert standard will increase the expense and length of litigation. Opponents also expressed concern that H.B. 153 could be construed to eliminate diminished capacity defenses in criminal cases.

At the bill-signing ceremony, Governor Greitens criticized “trial lawyers [for] bring[ing] in shady witnesses that act as experts while peddling junk science.” The Governor also stated that loose evidentiary standards scare away businesses and that H.B. 153 signals that “Missouri is open for business.”

When H.B. 153 goes into effect in August 2017, Missouri will join the federal courts and the vast majority of states and the District of Columbia in applying Daubert. To be sure, this trend toward Daubert and against junk science has not been easy or uniform. In fact, H.B. 153 was not the first attempt to adopt Daubert in Missouri. The Missouri Legislature passed a Daubert bill, but then-Governor Jay Nixon vetoed it in June 2016. And the Florida Supreme Court recently rejected an attempt to impose Daubert in Florida courts. Notwithstanding these setbacks, Daubert is on the march across the country.