2. The Federal Circuit Courts.
Of course, the Federal Courts follow the authority of the Supreme Court, but the reader may like some exposition of what the circuit courts have done.
Some Circuits seem to have felt it appropriate to dismiss the opinions of ordinary medical treating doctors because they have not verbalized studies and statistics. Fortunately the Fifth Circuit has been more sensible. In Moore v. Ashland Chemical, Inc., 126 F3d 679 (5th Cir. 1997) it was recognized that:
“…The Daubert factors, which are hard scientific methods selected from the body of hard scientific knowledge and methodology, generally are not appropriate for use in assessing the relevance and reliability of clinical medical testimony. Instead the trial court should determine whether the doctor’s proposed testimony as a clinical physician is soundly grounded in the principles and methodology of his field of clinical medicine.”
Before Daubert, the Eighth Circuit, like North Dakota, generally insisted that the trial judge should not weigh the expert’s opinion in determining admissibility. An illustrative case of reversal of the trial court is Hoomgren v. Massy Ferguson, 394 F.Supp. 910 (DCND 1974), reversed at 516 F2d 856 (8th Cir. 1974). The District Court found an engineer not to he qualified to testify as expert in design of agricultural implements. The District Court judge was reversed by the 8th Circuit, which felt that it was not the amount of expertise, but rather whether expertise exists, that determines admissibility of the opinion, and anyone who has some expertise should be allowed to testify as an expert.
But now, the Eighth Circuit has adopted the Daubert gatekeeper functions. E.g., Peitzmeier v. Hennessy Industries, 97 F3rd 293 (8th Cir 1996); Wright v. Willamette Industries, 91 F3rd 1105 (8th Cir. 1996); Sorensen v. Shaklee Corp., 31 F3rd 638 (8th Cir. 1994).
In February, 1999, the U.S. Supreme Court affirmed an 8th Circuit decision reversing a North Dakota Federal trial court case on a point of expert witness law. The point the U.S. Supreme Court made is one we for months had been warning attorneys and expert witnesses about.