Subrogation and the Admissibility of Expert Testimony


By: Gary L. Wickert 

The use of expert witnesses has become an integral and indispensable aspect of American litigation, and it is often the side with the best expert who wins the day. The same holds true for subrogation files in which the subrogated carrier must invest in an expert to assist in meeting the plaintiff’s burden of proof. Experts can be expensive, so it is best to pick and choose an expert who will be able to withstand judicial scrutiny under the fast-changing laws of evidence regarding the admissibility of expert testimony. A subrogated carrier has saved little it if pays fees to an expert who is later barred from testifying. At the same time, subrogation is only successful if it is cost-effective. No carrier can spend itself into a successful subrogation program. Knowing a good expert from a bad expert goes a long way in holding down the bottom line and squeezing as much as possible out of each subrogation file.

The use of science in the courtroom to advise judges and juries on technical and scientific issues which bear on the arrival at a just and fair outcome was, and still is, a controversial subject. The earliest known use of an expert witness in English law came in 1782, when a court hearing litigation relating to the silting of Wells Harbor in East-Central England allowed evidence from a leading civil engineer named John Smeaton. The court’s ruling allowing Smeaton’s testimony is thought to be the genesis of the modern rules on expert evidence. The rise of the use of expert testimony and its perceived need in civil and criminal litigation went hand-in-hand with the culture of science which, along with the rise of the Industrial Revolution, became more and more confident in it’s ability to discern the hidden laws of nature, however subtle they were.

The use of expert testimony in American litigation has grown exponentially since it came into focus, and the use of experts is now frequently used to place into evidence opinions and circumstances related to opinion, which would not otherwise have been put into evidence. The sale of expert testimony began to grow during the mid-19th Century, adding fuel to the fire of a new litigation industry. In the early years of forensic history, there was great deference and importance placed on expert testimony. However, it didn’t take long for this credibility to dissipate. By 1870, a study on expert testimony identified an “unmistakable tendency on the part of eminent judges and jurists to attach less and less importance to testimony of this nature.” The new, lucrative forensic cottage industry went hand-in-hand with abuses. The English and the American legal systems were all too aware of the need to protect the credulous jury from con men and quick-buck “experts” eager to make a profit at all costs. Compounded by the generally universal distrust of juries to be able to do its job properly, the need for the court to become the “gate-keeper” of credible expert testimony grew quickly. This need became even more critical in America, because the English legal system granted its judges the freedom to take part in the questioning of the witnesses, advise counsel in the framing of their questions, and comment fully on the weight of the evidence and the credibility of the witnesses in their charge to the jury. The American system lacked these tools and tended to recognize the jury as the final adjudicator on the facts of the case, with the judge prohibited from commenting or questioning witnesses. For this reason, the problem of expert testimony and how to control it reached its zenith in America rather than in England.

Frye Standard

Throughout the 20th Century, American courts and legislatures made numerous efforts at reforming the business of selling forensic opinions which are truly not based in sound science, also known as “junk science.” In the 1922 murder trial of an African-American named James Frye in District of Columbia federal court, the court disallowed introduction of a lie detector test “proving” the innocence of the defendant. The defendant was found guilty and on appeal, the defendant claimed it was error not to allow the lie detector test. The logical relevance of the test and its potential helpfulness to the jury was obvious. So were the credentials of the test inventor, William Marston. In Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the court shifted the focus of the admissibility of the expert’s testimony from the expert’s credentials to the particular scientific knowledge his testimony would contain. The resulting Frye standardFrye test, or general acceptance test, as it became to be known, is a test to determine the admissibility of scientific evidence. It provides that expert opinion based on a scientific technique is admissible only where the technique is generally accepted as reliable in the relevant scientific community. A court applying the Frye standard must determine whether or not the method by which that evidence was obtained was generally accepted by experts in the particular field in which it belongs. In many, but not all jurisdictions, the Frye standard has been superseded by the Daubert standard. States still following Frye include California, Illinois, Maryland, Minnesota, New Jersey, New York, Pennsylvania, and Washington.

Daubert Standard

In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the Supreme Court held that the Federal Rules of Evidence superseded Frye as the standard for admissibility of expert evidence in federal courts. Some states, however, still adhere to the Fry standard. Standard used by a trial judge to make a preliminary assessment of whether an expert’s scientific testimony is based on reasoning or methodology that is scientifically valid and can properly be applied to the facts at issue. Under this standard, the factors that may be considered in determining whether the methodology is valid are: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community. The Daubert standard is the test currently used in the federal courts and some state courts. In the federal courts, it replaced the Frye standard. It is widely believed that this standard gives judges greater authority to evaluate and reject unreliable expert testimony. Federal Rule of Evidence 702 provides:

Rule 702. Testimony by Expert Witnesses.

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.

Rule 702 specifies, first, that the witness must be “qualified as an expert by knowledge, skill, experience, training, or education.” If so qualified, the witness may testify in the form of an opinion provided, first, that his testimony is relevant, meaning that it will aid the jury, and second, that it is reliable, meaning it is grounded in sufficient data, reliable methods, and the facts of the case. In re Scrap Metal Antitrust Litig., 527 F.3d 517 (6th Cir. 2008). The Supreme Court in Daubert provided a list of factors for trial courts to consider as they evaluate the reliability of scientific testimony. But, that list is not exhaustive, nor any one factor dispositive. Rather, district courts have “considerable leeway” in determining whether expert testimony is admissible. Meridia Prods. Liab. Litig. v. Abbot Labs, 447 F.3d 861 (6th Cir. 2006) (quotingKumho Tire, 526 U.S. at 152). But, the burden remains on the proponent of the testimony to establish its admissibility by a preponderance of the evidence. Pride v. Bic Corp., 218 F.3d 566 (6th Cir. 2000).

Under normal circumstances, a district court may resolve a Daubert motion without holding a hearing. Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244 (6th Cir. 2001). A hearing is required only if the record is inadequate to decide the motion. Jahn v. Equine Servs., PSC, 233 F.3d 382 (6th Cir. 2000). When the parties brief the admissibility of the experts’ testimony and develop an extensive record that includes depositions, a hearing is unnecessary.

The Politics of Forensic Testimony and Evidence

The push for the Daubert standard throughout the country is often political. Insurance companies and businesses that manufacture or sell products usually believe that the Daubert standard favors defendants in civil suits. For that reason, they lobby state legislatures and courts to adopt Daubert, because they often feel themselves to be the victim of junk science. On the other hand, plaintiffs’ lawyers usually oppose the adoption of Daubert on the ground that it favors the interests of businesses over those of victims. As a result, there is a continuous tug-of-war over the issue. Missouri’s governor recently vetoed the state’s legislative adoption of Daubert because he felt the standard hurts injury victims by increasing the cost of litigation. The governor felt that Missouri already had “well-established” criteria to guide judges in admitting expert testimony and that the new legislation would replace that criteria with a “complicated and costly procedure.” Some believe that, without Daubert, judges hold too much power in determining the admissibility of expert witnesses. On the other hand, some courts emphasize that Daubert and Federal Rule of Evidence 702 have greatly liberalized the admissibility of expert testimony, while Daubert’s detractors insist that the standard encourages judges to usurp the role of jurors in deciding whether expert opinions have merit.

Non-Scientific Expert Testimony

Up until 1999, the standards set forth in Frye and Daubert applied only to “scientific testimony.” In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999), the U.S. Supreme Court extended its Daubert reasoning to all expert testimony, not simply that which was considered “scientific.” It applies Daubert to expert testimony from non-scientists. Prior to Kumho, some litigants argued that Daubert did not apply to testimony based on “non-scientific” knowledge, such as technical and other specialized knowledge. A chart detailing the law in all 50 states regarding the admissibility of expert testimony may be found HERE.

The importance of choosing the right expert at the right price point is greater nowhere than it is in the area of subrogation. Claims professionals, in-house counsel, and outside subrogation attorneys should all be informed about the best practices in finding and selecting expert witnesses. Litigation guidelines which require the use of the same one-stop expert shop may critically injure a claim’s chance at subrogation success if the expert isn’t qualified or cannot get past the gatekeeper in litigation. In many claims, the key liability questions revolve around a particular science or study.

Experts provide an opportunity quite different than fact witnesses. Experts are allowed to base their opinions on hearsay and otherwise inadmissible evidence. They lay a framework based on their experience and expertise, and then assess and interpret broad types of relevant information and facts in the case. If you have a claim which involves the need for expert testimony, Matthiesen, Wickert & Lehrer, S.C. has, over the past 33 years, accumulated data on more than 25,000 experts, their areas of discipline, their geographical service areas, and their cost. Contact Gary Wickert at if you need help in obtaining the right expert at the right price. Your subrogation success may depend on it.

The foregoing was originally published on the Matthiesen, Wickert & Lehrer, SC Blog, and is reproduced here with permission of the author. No further republication is permitted without the author’s consent.

Commenting is not available in this channel entry.


There currently are no comments on this entry.

Advertise with WCI