WASHINGTON—``How do we know the expert isn't making it up?'' an attorney representing two tire companies asked in oral arguments before the U.S. Supreme Court in a landmark product liability case. At issue in the appeal brought by Kumho Tire Co. Ltd. and Hercules Tire & Rubber Co. is the evidentiary standards to which ``non-scientific'' expert witnesses must be held.
An attorney representing Patrick Carmichael, who brought the lawsuit against Kumho and Hercules, argued there are areas in expert testimony in which professional experience—in the absence of scientific fact—must be taken as the guide.
``You need to work in the field to know this (non-scientific) evidence, not a one-size-fits-all set of questions,'' said attorney Sidney Jackson III.
The case began in July 1993, when a tire on Mr. Carmichael's minivan blew out and caused a crash that killed a child and injured the seven other passengers. Mr. Carmichael sued Kumho, the manufacturer, and Hercules, the private brand company, charging the tire was defective.
Dennis Carlson, Mr. Carmichael's expert witness and a former tire testing engineer for Michelin North America, examined the blown tire one hour before his scheduled deposition.
At the deposition, Mr. Carlson testified that through a process-of-elimination methodology—eliminating minor signs of abuse and wear as causes of the tire's failure—he had determined the tire was defective, although he could not pinpoint the exact defect.
The district court judge granted Kumho and Hercules' motion to strike Mr. Carlson's testimony. Using the standards set by a prior Supreme Court case, Daubert vs. Merrell Dow Pharmaceuticals, the judge ruled Mr. Carlson's testimony lacked the verification necessary for acceptance as expert evidence. Because Mr. Carlson's testimony was the only evidence of a defect in the tire, the court granted the defendants' motion for summary judgment.
However, the 11th Circuit Court of Appeals reversed the district court, ruling that only testimony offered explicitly as ``scientific'' is subject to the Daubert criteria and that the lower court erred in applying them to the Kumho case.
The Supreme Court granted Kumho's and Hercules' motion for appeal, and heard oral arguments Dec. 7.
Joseph Babington, attorney for Kumho and Hercules, argued the appeals court should not be allowed to ``take away from the district court the logical, common-sense questions of Daubert.''
Expert testimony should not be limited to the Daubert guidelines, and sometimes can be accepted even if it doesn't meet them, Mr. Babington said, but district courts should be allowed to apply them in all cases.
Mr. Babington was joined at the hearing by Jeffrey Minear, assistant to the U.S. solicitor general, who argued that the Daubert precedent ``makes clear that the trial judge must make sure that expert testimony rests on solid ground.
``The problem with Mr. Carlson's testimony was that there was no way to validate his conclusion that there must be a defect,'' Mr. Minear said. ``That was simply not justified on a rational basis.''
Mr. Jackson, however, argued the Daubert criteria called for evidentiary standards that don't exist in the Kumho-Carmichael case.
There is no test to which you can subject a failed tire to discover or pinpoint a defect, Mr. Jackson said.
``Carlson candidly stated that he could not point to a specific defect,'' he said. ``That is almost impossible in a tire case. But he could testify there were no indicia of abuse; there are four definite signs he looks for in such cases, and he could rule those out.''
But Mr. Jackson was challenged on this point by Justice Antonin Scalia. ``He could say there were no signs of abuse, and that could go to the jury,'' Justice Scalia said. ``But he went on to say the tire was defective.'' Justice Anthony Kennedy made the same point, saying there was ``a big difference'' between a finding of no abuse and a finding of defect.
Mr. Babington also faced his share of sharp questioning. ``I thought you said it was always OK to use Daubert,'' said Justice Stephen Breyer at one point during Mr. Babington's argument. ``Are you going back on your brief?''
The Kumho-Carmichael case has received an extraordinary amount of interest because of the evidentiary issues involved. The Rubber Manufacturers Association earlier filed an amicus brief in support of Kumho and Hercules, as did the National Association of Manufacturers, the Society of Automotive Engineers and many other pro-business groups.