Experience-Based Expert Testimony Need Not Meet Daubert’s Requirements: Alaska Supreme Court
In a recent decision (Thompson v. Cooper), the Supreme Court of Alaska held that admissibility of expert testimony based on experience does not need to be subjected to the Daubert Test. While the Court did a great job of explaining why it doesn’t, Expert Witness Guru’s Research Attorney, Sanandita Chakraverty, takes a look at the case and the Court’s interpretation of the application of Daubert in the state.
Defendant, Michael Cooper caused a car accident that injured Plaintiff, Samuel Thompson. Thompson sued Cooper and Cooper’s employer for compensatory and punitive damages. The jury returned a verdict for the Plaintiff for compensatory damages, but not for punitive damages. The parties appeal rulings on evidentiary issues, jury instructions, and denied motions. The Appellate Court affirmed most of the superior court’s rulings, but reversed its exclusion of Plaintiff’s treating physicians’ opinion testimony on medical causation, and denial of a jury instruction on additional harm. The case was remanded for a new trial on compensatory damages. The Appellate Court held that the Plaintiff’s treating physicians should have been allowed to testify about causation, and that Plaintiff was also entitled to an additional harm instruction. The Court upheld, however, the trial court’s dismissal of all but one of Defendant’s punitive damages claims.
Plaintiff appealed the superior court’s exclusion of his treating physicians’ opinion testimony on medical causation. This testimony consisted of the physicians inferring, based on Plaintiff’s statements that his symptoms began after the accident, that his discs were injured in the accident. Plaintiff contended that the superior court had incorrectly found that a Daubert analysis (Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589-95 (1993) – establishing test for assessing admissibility of scientific expert testimony) was required for the admission of his treating physicians’ testimony. The Appellate Court concurred with the Plaintiff’s view on this point.
Daubert in Alaska
The Daubert analysis was adopted in Alaska by State v. Coon (974 P.2d 386, 395-98, Alaska 1999), in determining the admissibility of scientific evidence along with the Alaska Rules of Evidence. In this case, Petitioner asked the Court to abandon the scientific evidence test discussed in Frye v. United States, (54 App. D.C. 46, 293 F. 1013, D.C. Cir. 1923) and adopt the “more flexible” standard announced in Daubert. The Supreme Court of Alaska held that in order to adopt a new standard for admitting evidence, the interpretation of the Alaska Rules of Evidence was involved and therefore it was a legal question to which the court applied its independent judgment in adopting the rule most persuasive “in light of reason, precedent and policy.” (M.R.S. v. State, 897 P.2d 63, 66 (Alaska 1995); see also Hernandez-Robaina v. State, 849 P.2d 783, 785 n.2 (Alaska 1993); Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)
Daubert required the trial courts to ensure that scientific evidence was both relevant and reliable. The opinion was widely regarded as imposing a more rigorous “gatekeeper” function on trial courts than Frye did. (John M. Conley & David W. Peterson, Essay, The Science of Gatekeeping: The Federal Judicial Center’s New Reference Manual on Scientific Evidence, 74 N.C. L. Rev. 1183, 1186, 1996)
The Court’s Analysis
In Thompson v. Cooper, Plaintiff argued that his treating physicians should have been allowed to testify about the cause of his injuries, which the physicians inferred from the timing of his complaints of pain after the accident. The trial court had ruled that such testimony would have to meet Daubert’s test for admission of scientific evidence.
The Alaska Supreme Court noted that there are “two general categories of expert testimony.” The first, is expert opinion based on technical or scientific research; the second, is based on “practical experience in the relevant field.” Under Alaska law, the first must meet Daubert’s test, the second need not. Instead the test for admissibility for expert testimony based upon practical experience is “when the expert witness has substantial experience in the relevant field and the testimony might help the jury.”
In the present case, the Appellate Court admitted that there was not a “clear divide” between the two categories, but found that, at least in this case, the treating physicians were experience-based experts. All had experience in treating injuries like Thompson’s and they were familiar with his injury in particular. All three doctors relied on this experience in developing an opinion on causation, subjectively applying their practical experience to the particular facts of Thompson’s injury. As such, “their opinions on causation were neither empirically verifiable nor objectively testable,” and not subject to the Daubert test for admissibility. It therefore was error to exclude such evidence under Daubert and Coon.
Defendant argued that a Daubert analysis was required here based on the decision in Marron v. Stromstad (123 P.3d 992 Alaska 2005). The Appellate Court stated that it had recognized that many federal courts have applied Daubert to exclude causation testimony by treating physicians, but the Appellate Court had explicitly stated that the expert opinion in that case concerned Marron’s course of treatment and did not address causation. Therefore, the Appellate Court expressly declined to extend the Daubert rule to all expert testimony, and instead limited Daubert to “expert testimony based on scientific theory, as opposed to testimony based upon the expert’s personal experience.” This was later reiterated in Marsingill v. O’Malley (128 P.3d 151, 160 Alaska 2006) that physicians who derived their expertise from experience did not have to meet Daubert’s requirements.
Defendant nonetheless argued the exclusion of this evidence was proper under two other theories. First, Defendant claimed the exclusion of this evidence was proper because Plaintiff did not comply with Rule 26(a)(2)(B)’s disclosure requirements. The Court held that the treating physician’s testimony – as hybrid, or fact and expert testimony – did not have to meet the disclosure requirements of Alaska Rule of Civil Procedure 26(a)(2)(B), and that it was more relevant evidence on a disputed point of fact. The Appellate Court held that Rule 26(a)(2)(B) did not apply when the expert is the party’s treating physician because a treating physician’s testimonial role is “unique.” “Retained experts are presumed to be under the control of the party retaining them and are thus presumed to be cooperative,” (Fletcher v. S. Peninsula Hosp., 71 P.3d 833, 844-45 Alaska 2003; see also Miller v. Phillips, 959 P.2d 1247, 1250 Alaska 1998) but no such presumption is justified regarding a treating physician, whose testimony is based on experience attending to the patient rather than being hired to review a file and develop an opinion.
Defendant next argued that the physicians’ causation testimony was properly excluded under Evidence Rule 403 because the probative value of the testimony was outweighed by the danger of confusion of the issues or misleading the jury. But the superior court did not engage in this weighing and so could not have based its decision on Rule 403. The Appellate Court did not believe that the claimed risks outweighed the probative value of the evidence in this case.
The Appellate Court also disagreed with Defendant’s additional argument that the treating physicians’ testimony could not “assist the trier of fact to understand the evidence or determine a fact in issue,” and therefore was inadmissible under Evidence Rule 702(a).
Finding that the causation was a central issue of Plaintiff’s trial, the Appellate Court reversed and remanded for a new trial on damages.