Missouri Court of Appeals Issues the First Opinion on the New Statute on Admissibility of Expert TestimonyOctober 2018
On August 21, 2018, the Missouri Court of Appeals for the Eastern District issued its decision in State ex rel. Gardner v. Wright, the first opinion that interpreted the state’s heightened standard for the admissibility of expert testimony in civil and criminal cases. That standard, passed in March 2017 through House Bill 153 and effective on August 28, 2017, requires that courts now undertake a more probing analysis into the reliability of an expert witnesses’ opinions that have been challenged by another party before that expert can testify at trial. The new standard theoretically gives trial court judges more control over the quality of expert opinion testimony presented at trial that could influence the jury. In Wright, however, the Eastern District described the new standard as simply requiring that trial courts determine if the proposed expert testimony is “relevant and reliable and proffered by a qualified expert.” The application of the standard, though, is not as simple as this statement might suggest.
Prior to the changes made by House Bill 153, Missouri courts followed the standard established under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). To be admissible under the “Frye standard,” an expert’s opinion only had to be of a type “reasonably relied upon by experts in the field,” as discussed in a 2003 Missouri Supreme Court ruling, State Board of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146 (Mo. banc 2003). This standard was codified in the prior version of Section 490.065 of the Missouri Revised Statutes (RSMo), which governs the admissibility of expert testimony.
House Bill 153 changed Section 490.065.2 by replacing the “reasonably relied upon” requirement with the following criteria for courts to consider in assessing the relevance and reliability of the proposed expert’s opinions:
- A witness who is qualified 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.
The revised text brings Missouri in agreement with the growing majority of states, in aligning word-for-word with the Federal Rules of Evidence and the so-called “Daubert standard” employed in federal court proceedings. Derived from the 1993 seminal case Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Daubert standard requires judges to act as “gatekeepers” when deciding whether to admit opinion evidence from a party’s expert witness. Under Daubert, an expert’s proposed opinions (if challenged by an opponent) must be both relevant and able to satisfy certain reliability thresholds before they can be admitted. This heightened scrutiny creates a judicial check on whether the proposed expert’s opinions are the product of sound and reliable methodology.
In Wright, the Circuit Attorney of the City of St. Louis challenged the trial court’s decision to exclude certain expert testimony in a child sex abuse case on relevancy grounds under the new Daubert framework. The Eastern District reversed, finding the trial court’s decision contrary to the plain language of new Section 490.065.2. Although Wright addresses the statute in the criminal context, the opinion sheds light on how Missouri’s trial and appellate courts will interpret the new standard going forward.
For example, to distill the courts’ new gatekeeping function into “a useful three-part test,” the appeals court drew from federal court decisions applying the Daubert standard. When faced with a Daubert challenge of a party’s expert, the court is essentially asked to determine (1) whether the expert is qualified; (2) whether the proposed testimony is relevant; and (3) whether the testimony is reliable. The appeals court in Wright summarized the new standard by explaining that the “admissibility of expert testimony under Section 490.065.2 requires simply that it be relevant and reliable and proffered by a qualified expert.” In answering these questions, the court was “guided by existing and still applicable Missouri law” as well as the wealth of federal case law applying the Daubert standard over the past two decades.
According to the appeals court in Wright, the relevancy determination remains unchanged under the new framework. As before, expert testimony is relevant if it will “assist the trier of fact” or, stated differently, if it is “helpful to the jury because it has a valid connection to the case.” Existing state court opinions analyzing whether expert testimony will assist the jury (and is thereby relevant) are therefore still applicable to the Daubert inquiry. Likewise, an expert is still qualified by her “knowledge, skill, experience, training, or education,” and case law regarding an expert’s qualifications is still useful in answering the “whether the expert is qualified” inquiry. The third element, reliability, is where the Daubert inquiry and the court’s gatekeeping role are tested.
To guide its inquiry on reliability, the appeals court in Wright again looked to federal cases applying Daubert and explained that a trial court’s analysis here must remain “flexible.” Reliability, according to the appeals court in Wright, “is determined by considering whether the testimony is based on sufficient facts or data, reliable principles and methods, and reliable application thereof.” And although Section 490.065.2(1)(b-d) enumerates factors for determining the reliability of expert opinions, these factors are not fixed or exclusive. “No single factor is necessarily dispositive of the reliability of a particular expert’s testimony. The trial court may consider Daubert factors or other factors depending on the nature of the testimony at issue.”
Wright provides an initial glimpse into how Missouri courts will interpret the state’s new standard on admissibility of expert opinions. Trial court judges now also have some appellate-level framework in which to operate when undertaking a Daubert analysis and to aid their decision-making to avoid being reversed on appeal (as was the case in Wright). The state’s case law interpreting the new language of Section 490.065 (particularly as it pertains to reliability) is sure to expand quickly, and Wright will likely shape these future interpretations and even the present appeals of trial court decisions. For additional information on the Wright decision, Missouri’s new Daubert standard, or any other litigation matter, please contact Douglas Nieder, Corey M. Schaecher, or Sarah L. Noonan.