Reviewing nonscientific expert evidence

The Supreme Court will review rules governing admissibility of nonscientific expert evidence

By Bradley D. McAuliff, and Margaret Bull Kovera, PhD
Florida International University

On July 6, 1993, Patrick Carmichael and seven family members were traveling on an Alabama interstate when the right rear tire of their minivan blew out,

causing Carmichael to lose control of the vehicle. The minivan overturned, and six of the occupants were thrown from the vehicle. All family members suffered serious injuries, and one child ultimately died.

The Carmichaels sued the tire manufacturer and tire distributor, and the Supreme Court has recently agreed to review the case. The Court?s impending decision could influence the standards by which judges determine the admissibility of psychological evidence in federal courts.

In preparing their case, Carmichael v. Samyang Tire, Inc., 923 F. Supp 1514 (S.D. Ala.1996), the Carmichaels sought the opinion of George Edwards, a tire consultant who examined the tire remains. Based on his experience with tire failures, Edwards concluded the blowout was the result of a defect in the tire?s design or manufacturing.

Shortly before the defendants were scheduled to depose Edwards, he became too ill to testify and transferred the case to his employee, Dennis Carlson. Carlson holds a master?s degree in mechanical engineering and has served as a tire-failure consultant in many cases. After reviewing the case, Carlson concurred with Edwards? conclusion. During a deposition, Carlson outlined the process by which he determined the tire was defective. The defendants moved to exclude Carlson?s 'expert' testimony, claiming it did not satisfy the legal standards for scientific evidence set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc. (113 S. Ct. 2786, 1993).

According to Daubert, all scientific evidence must be both relevant and reliable to be admissible in federal trials. Expert evidence is relevant if it fits well with the case facts and is reliable if it is obtained using scientifically valid methods. The Court delineated criteria that federal judges may use when determining the reliability of scientific evidence (i.e., whether the theory or technique can be tested, whether it has been subjected to peer review or publication, whether it has a known or potential rate of error and whether it is generally accepted within the relevant scientific community). In Carmichael, the defendants contended that Carlson?s expert testimony failed to meet these criteria, and they requested that the court issue a summary judgment of the case.

A district court judge issued a summary judgment in favor of the defendants. The judge?s ruling was based in part on his opinion that Carlson?s 'expert' testimony about the tire defect was not valid, and thus inadmissible in court. The Carmichaels appealed this ruling to the 11th Circuit of the U.S. Court of Appeals (131 F.3d 1433, 1997).

In contrast to the lower court, the appellate court held that the testimony of the purported tire-failure expert was not 'scientific' and therefore was not subject to the reliability analysis set forth in Daubert. Because the testimony of the plaintiff?s expert was based not on any scientific theory but on the expert?s observations and past experience in analyzing failed tires, a Daubert inquiry was not required, the appeals court stated. The defendants have appealed the decision to the Supreme Court, and the Court has agreed to hear arguments in the case (Kumbo Tire Co. v. Carmichael, No. 97?1709). Kumbo will enable the Supreme Court to specify the types of expert testimony that federal judges should subject to a Daubert analysis before ruling on its admissibility.

The central issue in Kumbo that is relevant to psychology is whether Daubert should apply to testimony in which experts offer an opinion that is based on their experience, training or observation rather than on the application of scientific principles. Federal judges will continue to use the Daubert criteria to evaluate psychological research based on the scientific method. The Court?s decision in Kumbo will instead establish the criteria used to determine the admissibility of psychological evidence based on a psychologist?s clinical training, experience and observation.

If the Court reverses the appellate court?s decision, this type of evidence will also be subjected to the Daubert standard. In this scenario, psychologists offering clinical opinions based on their experience will have to prove that their methods for drawing their conclusions have been empirically tested, have been subjected to peer review and published, have a known rate of error and are generally accepted among psychologists. If the Supreme Court upholds the decision of the appellate court, the Daubert criteria for judging reliability will not apply to clinical opinion, and it is likely that the Kumbo decision will specify criteria that must be met to show that this type of expert evidence is reliable.

Estate Planning and the American Psychological Foundation

An Interview with Dr. Joseph D. Matarazzo, President of the American Psychological Foundation

Q:Estate planning is a phrase we hear often. What exactly does it mean?

A:When we talk about estate planning at APF, we are talking about helping APA members achieve two goals. The first is to arrange their estate so that it is protected from high taxation. The second goal is a desire I hear many psychologists express, to give back to a discipline that has been very rewarding to them.

Q:Many people would like to be able to support the Foundation but they are concerned about preserving their financial stability. Is there a way to achieve both?

A: Yes, that is a financially responsible consideration, and the simple answer is there are programs that enable people to make a gift to psychology and at the same time maintain and solidify their financial portfolios. Many of our members have donated low-yield growth stocks and property. By putting these assets into a Charitable Remainder Trust, these individuals avoid paying capital gains taxes, receive a deduction for their contributions, and realize a steady stream of income for the rest of their lives.

Q:I understand that taxes on Individual Retirement Plans are exorbitant. Is there a way I can donate some of these retirement funds to the Foundation, save on my taxes and at the same time pre-serve a substantial amount for my children?

A: Yes, I have learned that if you want to pass your Individual Retirement Account to your children directly, taxes can be as high as 85 percent. However, if you use a portion of your retirement assets to establish a Charitable Remainder Trust, you can preserve much of the value of your retirement plan and direct a significant amount to your family.

Q: I know my home is worth much more today than I paid for it. I would like to continue living in it for the foreseeable future, but I have heard there is a way I can donate my home and receive a break on taxes. Is this true?

A: Yes. Most of us retirees own our homes, which are worth much more today than when we bought them. You can make a Gift of Residence with Retained Life Estate, which would allow you to receive a current income tax deduction while living in your home for the rest of your life.

Q:You have told us about several effective ways to give. What about what we are giving for. What will our donations support?

A:Pure and simple: The work of the Foundation is about supporting and enhancing the discipline of psychology. Donations to APF allow us to do such things as give a scholarship to a gifted psychology student; provide a grant to a scholar conducting important research; or give an award to a talented early-career psychologist to recognize and encourage continued contributions to the field.

Editor?s note: For more information about estate planning opportunities available through the American Psychological Foundation, contact Elisabeth Straus at (800) 374-2721.