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"What Every Trial Lawyer Should Know: The Impact of the Joiner and Carmichael Decisions On Expert Testimony"

MTLA Magazine
June 1999

Article Author: Paul E. Godlewski


I.  INTRODUCTION
 
The recent United States Supreme Court decisions of General Electric Co. v. Joiner  and Kumho Tire Co. Ltd. v. Carmichael  will immediately impact expert witness testimony under Federal and Minnesota Rules of Evidence 701 and 702.  Minnesota, like most states which have codified the rules of evidence, has adopted rules 701 and 702 which are drafted word for word after Federal Rules of Evidence 701 and 702.  The preliminary comments to the Minnesota Rules of Evidence reference the federal rules and refer to the advisory opinions under the federal rules for guidance.

The evidentiary analysis under Daubert v. Merrell Dow Pharmaceuticals, Inc.  is still viable to review and challenge the methodology for admissibility of expert testimony.  Following Joiner the trial court can now look beyond methodology and review the conclusions of the experts as a precondition to admissibility.  Under Carmichael, the trial court judge may now apply the Daubert analysis to both scientific and technical expert testimony, including, engineering testimony.

Although it is likely these decisions signal a trend toward a more careful review of expert testimony, every trial lawyer should be conversant with both sides of the issue because the application of Daubert, Joiner and Carmichael can be used both as a shield and a sword.  In order to understand the application of Joiner and Carmichael, I will briefly review past and recent developments on the issue of admissibility of expert testimony.

II.  HISTORICAL MILESTONES FOR
ADMISSIBILITY OF EXPERT TESTIMONY
 
It has been 76 years since the Frye v. United States  decision required that an expert's proffered opinion had to be generally accepted in the pertinent field before he or she could testify.  The standard of admissibility under Frye was based on the general acceptance of the proposed testimony by a relevant community of experts and permitted peer review and publication to substitute for any attempt by a trial court judge to analyze the opinion.  In practice, this allowed non-judicial personnel to make what was essentially a judicial policy decision and the judge did not have to necessarily understand the science involved as part of the admissibility decision-making process.

In 1975 the Federal Rules of Evidence introduced a more liberal approach to the question of admissibility of scientific evidence if the witness was qualified by knowledge, skill, training or education to testify in the form of an opinion or otherwise .  Notwithstanding the new rules, most courts continued to apply the "general acceptance" test with which they were familiar .  Minnesota has adopted Rule 702.

In 1993 the United States Supreme Court reviewed Rule 702 for the first time in the Daubert  decision and allowed the trial court judge to review the methodology of the studies upon which experts relied for their opinions before they were allowed to testify.  Specifically, the Court stated:  "The focus, of course, must be solely on principles and methodology, not on the conclusions they generate."   If an expert relies upon scientific studies which are based on sound principles and methodology which will assist the trier of fact, opinions drawn from this research are admissible under Daubert.

More recently, the United States Supreme Court has again reviewed Rule 702.  In December of 1997, the Court decided General Electric Co. v. Joiner  and allowed the trial court judge to review scientific studies relied upon for the opinions offered by qualified experts and to disagree with their opinions.  The trial court judge ruled the testimony inadmissible even though the studies relied upon by the experts were sound in principle and methodology.  The Joiner decision addressed the issue of scientific studies and allowed the court to look beyond methodology and question the conclusions of experts.

In March of 1999, the United States Supreme Court issued its decision in Kumho Tire Co. Ltd. v. Carmichael  allowing the application of Daubert analysis to engineering expert testimony.  This is the first time the Court confirmed that the Daubert analysis applies to engineering testimony, and also reconfirmed the Joiner decision by allowing the trial court judge to scrutinize technical engineering studies to determine whether or not the proffered opinion should be allowed into evidence.  Both the Joiner and Carmichael Courts excluded expert testimony.
 
As this article is going to press, the United States Congress is considering proposed amendments to the Federal Rules of Evidence 701 and 702 which embrace Daubert and Joiner, allowing for a more active judicial role in reviewing the foundation of proffered expert testimony.   It is likely that the comments to Rule 701 and 702 will also include references to the Carmichael decision.
 
Trial court judges are no longer limited in their review of the principles and methodologies of studies upon which experts rely as a precondition to admissibility.  A judge may also review the research data and studies upon which an expert relies and decide whether the studies support the opinion asserted.  A trial judge now has broad discretion to review scientific, engineering or other technical research for the opinions proffered.  It behooves the trial lawyer to be familiar with these significant evidentiary developments because of the many pitfalls and obstacles to admissibility for the unprepared.

III.  THE JOINER AND CARMICHAEL DECISIONS

A. Joiner
 
The facts relied upon by the United States Supreme Court in its Joiner decision were simple and focused on Rule 702.  Plaintiff Joiner claimed his exposure to polychlorinated biphenyls (PCB's) over a long period of time caused him to develop small cell lung cancer.  Plaintiff's experts relied in part for their opinions of causation on research studies, some of which involved mice.  Plaintiff's experts drew conclusions for their opinions from this research, together with other data and their own experience, education and training, to render their opinions that plaintiff's long term exposure to PCB's was a cause of his cancer.

After removal from state to federal court, defendants successfully moved for summary judgment by arguing plaintiff's expert's opinions were not sufficiently supported by the studies upon which they purported to rely.  Although this appears to be a classic weight versus admissibility argument, the court read the studies relied upon by plaintiff's experts and agreed with defendants!  Summary judgment was granted  because, with the exclusion of this expert testimony, plaintiff could not prove causation.   Plaintiffs appealed to the 11th Circuit, which reversed the trial court,  and in turn, defendants appealed to the U. S. Supreme Court.

B. Clarification of Post Daubert Standard of Review
 
In reversing the 11th Circuit, the Supreme Court answered a question left open after Daubert regarding the standard an appellate court applies when reviewing a trial court's ruling on expert testimony.
 
The Joiner court held that abuse of discretion, the standard ordinarily applicable to evidentiary rulings, is the proper standard to review a trial court's decision to admit or exclude expert testimony based on scientific evidence.17  For those who followed the history of Daubert, this was predictable.  Daubert never did find its way back to the trial court judge.  After remand by the United States Supreme Court, the Ninth Circuit reviewed the record and found that plaintiff's expert could not meet the Daubert analysis which would allow them to link the drug Benedictine with birth defects.18

C. Carmichael

The procedural and substantive history of Carmichael was very similar to Joiner, except that Carmichael specifically involved the admissibility of technical engineering expert testimony.  The trial court judge excluded the engineering testimony,19 the 11th Circuit reversed the trial court20 and the United States Supreme Court reversed the 11th Circuit Court of Appeals reinstating the trial court's decision to exclude the testimony.21
 
The Carmichael decision involved a tire failure which was claimed to cause a van to roll over and crash killing one passenger and severely injuring four other occupants.  Plaintiff's tire expert proffered his conclusion that a defect in the design or manufacturing of the tire caused the tread to become separated from the inner steel belted carcass and that this separation caused the tire failure and crash.  In rendering his opinion, plaintiff's expert relied upon a visual and tactile inspection which occurred just before his deposition, and by the absence of at least two of four recognized physical signs of abuse.
 
In Carmichael, there was no question about the qualifications of plaintiff's expert.  Even though the court conceded that there may have been widespread acceptance of visual inspection as a method for some relevant purpose, the court found insufficient indications of reliability under the Daubert analysis:  "namely the methodology employed by the expert in analyzing the data obtained in the visual inspection, and the scientific basis, if any, for such analysis."22
 
In reaffirming the continued viability of Daubert and applying its analysis to exclude engineering testimony, the court stated that "engineering testimony rests upon scientific foundations, the reliability of which will be at issue in some cases."23  Under Carmichael, the trial court judge is granted wide latitude in applying some, all or none of the Daubert two-prong analysis in ruling on the admissibility of expert testimony.

 IV.  ADMISSIBILITY:  METHODOLOGY AND CONCLUSIONS

A. The Judge as Gate Keeper, Fact Finder and Surrogate Scientist
 
The most basic framework to begin analysis of the admissibility of expert testimony under the rules of evidence includes the concepts of relevance, admissibility, weight and sufficiency of the evidence.  Because expert testimony is evidence, it is subject to analysis under each of these categories.  It may be relevant or not, admissible or not, sufficient or not, and will be given a certain deliberative weight by those evaluating it.24
 
When it comes to expert testimony and the application of Daubert, reliability is a threshold matter first presented to the trial court judge.  Under Joiner and Carmichael, the judge's role is expanded considerably.  If asked, the trial court judge gets first look at this testimony and makes the initial threshold decision about what evidence is admissible.  This decision is made as a matter of law and is reviewable by an appellate court under an abuse of discretion standard.  If a judge is persuaded that the evidence is relevant and reliable, it then can be admissible.  If a judge reviews scientific studies as did the judge in Joiner, and engineering testimony as did the judge in Carmichael, he or she may or may not be persuaded by the weight of the evidence as a threshold issue.  The question then becomes:  What proof is required to persuade a judge when ruling on admissibility of expert testimony?

B. Threshold Burden of Proof
 
Daubert confirms that preliminary questions about admissibility require the application of Federal Rule of Evidence 104(a).  This is true in Minnesota and other states that have codified the rules of evidence.  Under Joiner and Carmichael, the application of 104(a) now extends to any expert testimony including that of scientists and engineers.25
 
A hearing may or may not be required but the challenge raised by counsel to proffered expert testimony allows an opportunity to educate the judge about the substantive issues involved in the case and why an expert should or should not be allowed to testify.  Rule 104(a) allows the trial judge to consider the admissibility of evidence under a preponderance of proof test.26  The judge has more latitude in a Rule 104(a) inquiry than under other rules of evidence.
 
If you are the proponent of the proffered testimony, this is your opportunity to educate the judge with studies, articles and affidavits of other experts and any other resources available which support your expert's opinion.  Now, more than ever before, it is absolutely mandatory that a trial lawyer meet with his or her expert and review carefully the basis of the expert's opinions and the studies upon which the expert relies.  This is especially true in cases involving difficult scientific or novel engineering issues of causation.
 
Because Carmichael unequivocally extends the Daubert analysis to all expert testimony, product liability cases which include engineers and human factors experts are also subject to this level of review.  In two recent post-Carmichael decisions, plaintiffs' engineering, alternative design, human factors and medical experts were not allowed to testify.27
 
There is no requirement that Daubert, Joiner and Carmichael be applied solely to complex litigation.  These decisions have equal application in all cases from the simple to complex.  For example, when plaintiff's counsel is confronted with engineering studies by experts claiming to rely upon studies which prove no one can get injured in a low speed rear-end impact, the trial judge should be presented with clear and concise documentation, including affidavits from opposing experts and other research articles pointing out the weaknesses in the studies relied upon by defense engineering experts for a favorable ruling excluding this testimony.28

C. The Daubert Analysis:  Admissibility Issues Considered by a Trial Court Judge
 
Daubert set forth a two-prong test with very specific criteria for a trial court to consider when ruling on the admissibility of expert testimony.  In Daubert, the United States Supreme Court held that Federal Rule of Evidence 702 imposes a special obligation upon a trial judge to ensure that any and all scientific testimony is not only (1) relevant, but (2) reliable.29  Under the relevancy prong, a trial court judge must decide whether the expert is proposing to testify as to scientific knowledge (and under Carmichael, technical knowledge) that will assist the trier of fact in understanding or determining a fact in issue.30
 
Unlike the Frye court, Daubert did not limit its analysis to the admissibility of novel scientific evidence,31 although it did limit itself to Rule 702's scientific evidence test.32  Joiner and Carmichael broaden the Daubert analysis to all expert testimony, and under the relevancy considerations of Daubert, the issue is now whether or not the expert is proposing to testify on a subject that will assist the trier of fact to understand or determine a fact in issue.
 
Under Daubert's second prong (reliability), a trial court may consider the application of four general observations as part of his or her gate keeping function in deciding the admissibility of expert testimony.  The following factors are neither necessary or sufficient for any particular expert testimony consisting of or informed by theory or technique to be admitted into evidence:  (1) whether the scientific evidence can be (and has been) tested, (2) whether it has been subjected to peer review and publication, (3) whether it has a high-known or potential rate of error and whether there are standards controlling the techniques operation, and (4) whether the evidence is generally accepted within a relevant scientific community.33
 
The essence of Frye still exists in observations (2) and (4) above.  In fact, some scholars have observed that many state and federal courts still gravitate back to the Frye test.34  Carmichael specifically reaffirms the flexible application of the Daubert second prong (reliability) four-part analysis.35 It is important to note, however, that even if the studies relied upon by experts are methodologically sound and otherwise pass the Daubert analysis, the expert may still not be able to testify as to inferences from these studies if the trial court is not persuaded that the inferences may be reliably drawn from the studies.

D. The Ipse Dixit Doctrine
 
The first prong "relevancy" of the Daubert test has been referred to as "fit."36   Fit is not always obvious.  Scientific or engineering validity for one purpose may not necessarily be scientific or engineering validity for other unrelated purposes.  That is to say, the studies relied upon by experts must fit the facts of the case.  This is where Joiner and Carmichael substantially expand the legal inquiry by the court as a preliminary matter under Rule 104(a).
 
The operative language initially found in the Joiner decision which serves as a basis for challenging an expert's opinion based upon research studies is as follows:

 [C]onclusions and methodology are not entirely distinct from one another.  Trained experts commonly extrapolate from existing data.  But nothing in Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data by the ipse dixit of the expert.  A court may conclude there is simply too great an analytical gap between the data and the opinion proffered.37

Translated literally, ipse dixit means:  "He himself said it; a bare assertion resting on the authority of an individual."38
 
The Carmichael court reaffirmed the ipse dixit doctrine, while recognizing that there may be cases where testimony from experienced experts may survive a Daubert analysis and be admissible.39  The Carmichael court further stated that the objective of Daubert's gate-keeping requirement "is to make certain that an expert, whether basing testimony upon professional studies or personal experience employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in a relevant field." 40
 
The Carmichael court affirmed the wide latitude given to trial court judges when applying the Daubert relevance and reliability analysis to proffered expert testimony.  In recognizing the flexible approach of Daubert, the Court recognized that a claim may be made by a scientific witness which has never been the subject of peer review and concerning a topic which has never previously interested any other scientists.41
 
Not only did Carmichael confirm that a trial court judge must have considerable leeway in deciding how to go about determining whether particular expert testimony is reliable, the trial court is also given considerable leeway in deciding how to decide to test an expert's reliability.  Specifically:

 the trial court must have the same kind of latitude in deciding how to test an expert's reliability, and how to decide whether or when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides whether or not that expert's relevant testimony is reliable.42
 
This analysis applies to all cases, whether they are complex and embrace novel theories of liability, or whether they are simple and straightforward.  The Rule 104(a) hearing can be as broad or narrow as the trial court deems necessary.

E. Evidentiary Hurdles For The Pioneering Trial Lawyer
 
The potential that trial courts may apply Joiner and Carmichael to exclude expert testimony offered by plaintiffs is a very serious concern.  This is especially true in novel areas such as toxic chemical insult and product liability cases.  Indeed, there is some evidence that following the Daubert decision, many courts were excluding expert testimony.43
 
This particular issue was a very serious concern to Justice Breyer in his concurring opinion and Justice Stevens in his dissenting opinion in Joiner.44  Both justices observed there may be future scientific discoveries concerning things such as toxic chemicals and other harmful agents, which cause injuries to people and the environment.  Justice Breyer noted that, as cases presenting significant science-related issues increase, trial court judges must exercise their gate keeper function cautiously.
 
Citing research studies by the United States Department of Health and Human Services which identify more cancer causing agents, Justice Breyer stated:

 Modern life, including good health as well as economic well-being, depends upon the use of artificial or manufactured substances, such as chemicals.  It may, therefore, prove particularly important to see that judges fulfill their Daubert gate keeping function, so that they help assure that the powerful engine of tort liability which can generate strong financial incentives to reduce, or to eliminate, production points toward the right substances and does not destroy the wrong ones.  It is, thus, essentially in this science-related area that the courts administer the Federal Rules of Evidence in order to achieve the "end[s]" that the Rules themselves set forth not only so that proceedings may be "justly determined" but also so, "that the truth may be ascertained." 45
 
Ultimately, this is the challenge to all trial lawyers:  The ascertainment of truth and justice for your clients.  Justice Breyer's concern in this regard apparently was satisfied in Carmichael because he delivered the majority opinion of the court.  The Carmichael decision made clear that the Daubert list of factors was meant to be helpful, not definitive:

 Indeed, those [Daubert] factors do not all necessarily apply even in every instance in which the reliability of scientific testimony is challenged.  It might not be surprising in a particular case, for example, that a claim made by a scientific witness has never been the subject of peer review, for the particular application at issue may never previously have interested any scientist.  Nor, on the other hand, does the presence of Daubert's general acceptance factor help show that an expert's testimony is reliable where the discipline itself lacks reliability, as, for example, do theories grounded in any so-called generally accepted principles of astrology or necromancy.46
 
Also, experience-only based expert testimony or expert testimony based on skill, experience or observation may be admissible if the trial court is satisfied as to its relevance and reliability under Daubert.  This is a clear signal that an advocate involved in a case which presents a new theory or novel issue must be prepared with scientific and/or engineering research that supports the inferences drawn by the expert.
 
Conversely, as part of your discovery, it is absolutely essential to request specific information from your opposing expert as to any research or engineering studies relied upon for opinions proffered.  A thorough review of these studies by plaintiff's counsel and expert is important to demonstrate the inferences drawn by the opposing expert are frail, or "that the expertise is fausse and the science is junky."47

V.  JOINER AND CARMICHAEL
APPLIED IN STATE COURT

Because Minnesota, as well as other states that have codified rules of evidence, follows the wording of Federal Rules of Evidence 701 and 702, there is every reason to expect Daubert, Joiner and Carmichael will be applied to evidentiary rulings in state courts.  As mentioned previously, the preliminary comments to the Minnesota Rules of Evidence reference the federal advisory comments to the federal rules for guidance.
 
The only case this author has found applying Joiner in Minnesota is an unpublished court of appeals opinion, Monette v. K.M. Clinch, M.D.48  Monette is a medical malpractice case involving ulnar nerve injuries suffered by plaintiff during surgery due to his claim of malpositioning of his arm by the anesthesiologist.  Although the trial court judge found that plaintiff's expert was competent to testify as an expert in anesthesiology regarding the standard of care, his opinion was excluded because the court relied on research articles submitted by defendants in finding that plaintiff's expert's opinion has no foundation in medical science.
 
The Minnesota Court of Appeals, in this unpublished opinion overturned the trial court and applied the Joiner abuse of discretion standard of review.  Citing Minnesota's long-standing preference for admitting all relevant evidence under Minnesota Rule of Evidence 702, the court considered both the degree of the witness's scientific knowledge and the extent of the witness's practical experience with the subject of the offered opinion when determining whether the expert witness was competent to provide a medical opinion.  The ultimate question of admissibility is whether the expert testimony will assist the jury in resolving the fact issue presented.  The trial court judge may take into account whether the probative value of the evidence is outweighed by its unfair, prejudicial or misleading nature.49
 
Consequently, at least for now, it appears that Minnesota courts may take a more conservative approach than federal courts in applying Joiner and Carmichael.

VI.  CONCLUSION

The legal environment in which we now practice is in constant evolution.  Case law and courtroom decisions reflect a changing judicial attitude.  This requires vigilance on the part of trial lawyers to be aware of these trends and to react to change as we counsel our clients through this process.  A more diligent preparation of experts is absolutely essential to a successful case.  This is particularly true in the area of forensic testimony, whether it is scientific or technical.  Forensic science or technical forensic testimony is, by its very nature, fact specific.  The cautions raised by Justice Breyer in his Joiner concurring opinion still apply very aptly to forensic testimony.  Forensic testimony may not satisfy all or any of the Daubert four-part reliability test, yet may be very much supportable by the specific experience of the particular expert offering opinions.  This is why Justice Breyer, in writing for the majority in Carmichael, insisted that Daubert be applied flexibly and the trial court judge be given considerable leeway in deciding the procedural hearing requirements to challenge expert testimony.
 
Consequently, when selecting an expert for a particular case, counsel should make sure to review with the expert the legal criteria required by Daubert, Joiner and Carmichael.  The chosen forensic expert must be prepared to demonstrate his or her opinions and conclusions with the same level of intellectual rigor that characterizes the practice of an expert in a relevant field.
 
Also, careful preparation and thorough discovery of opposing experts is more important now than ever before given the guidance of Joiner and Carmichael and the wide latitude allowed trial judges to exclude or admit expert testimony.  Because of the unlimited applications of Daubert, Carmichael and Joiner to any given factual scenario, this article can only begin to scratch the surface of the potential consequences of these decisions.  It is my hope that this article will at least alert the trial lawyer to the potential application of these major evidentiary decisions for the benefit of their clients and in so doing, provide a safer environment for all of us.
______________________

1. General Electric Co. v. Joiner, 522 U.S. 136 (1997).
2. Kumho Tire Co. Ltd. v. Carmichael, 119 S. Ct. 1167 (1999).
3. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
4. 293 F. 1013, (D.C. Cir. 1923).
5. Erica Beecher-Monas, Blinded by Science:  How Judges Avoid The Science In Scientific Evidence, 71 TEMPLE L. REV, 55, 60 at n.29 (1998).
6. FED. R. EVID. 702 Pub. L. 93-595, § 1, Jan. 2, 1975, 88 Stat. 1937.
7. Joiner v. General Electric Co., 78 F.3d 524, 529 (11th Cir. 1996); Scott Brewer, Scientific Expert Testimony and Intellectual Due Process, 107 YALE L. J. 1535, 1626 at n.329 (1998).
8.  Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 594-95 (1993).
9. Id. at 594-95 (emphasis added).
10. General Electric Co. v. Joiner, 522 U.S. 136 (1997).
11. Kumho Tire Co. Ltd. v. Carmichael, 119 S. Ct. 1167 (1999).
12. Preliminary Draft of Proposed Amendments to the Federal Rules of Evidence 701 and 702.  Committee on Rules of Practice and Procedure of the Judicial Conference of the United States (August 1998).
 
 I think it is important to review the language of the proposed amendments to Rules 701 and 702 (amending language italicized):
 
 Rule 701.  Opinion Testimony By Lay witnesses
 If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and in its, and  (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue and (c) not based on scientific, technical or other specialized knowledge.

 Clearly, Rule 701 has been amended to eliminate the risk that the reliability requirement set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness's clothing.

 Rule 702.  Testimony By Experts
 If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, provided that (1) the testimony is sufficiently based upon reliable facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
13. Joiner v. General Electric Co., 864 F. Supp. 1310 (D. Ga. 1994).
14. After Appeals to the 11th Circuit and United States Supreme Court, Joiner was remanded on the separate question of whether or not exposure to furans and dioxins was a cause of his cancer.  General Electric Co. v. Joiner, 522 U.S. 136, 147 (1997).
15. Joiner v. General Electric Co., 78 F.3d 524, (11th Cir. 1996).
16. General Electric Co. v. Joiner, 522 U.S. 136 (1997).
17. Id. at 141-43.
18. Daubert v. Merrell Dow Pharm, Inc., 43 F.3d 1311 (9th Cir. 1995); Brewer, supra note 7 at 1550 n.67.
19. Carmichael v. Samyang Tire, Inc., 923 F. Supp. 1514 (S.D. Ala. 1996).
20. Carmichael v. Samyang Tire, Inc., 131 F.3d 1433 (11th Cir. 1997).
21. Kuhmo Tire Co. Ltd. v. Carmichael, 119 S. Ct. 1167 (1999).
22. Id. at 1173.
23. Id. at 1174.
24. Brewer, supra, note 7 at 1542.
25. Carmichael,  119 S. Ct. at 1169.
26. Fed. R. of Evid. 104(a).  ("In making its determination [the trial court judge] is not bound by the rules of evidence except those with respect to privilege."); Daubert, 509 U.S. at 592 n.10 (requiring that judgment under Rule 104(a) "should be established by a preponderence of proof."); Brewer, supra note 7 at 1546 n.32.

 Minn. R. Evid. 104(a) and Fed. R. Evid. 104(a) are identical:

Rule 104.  Preliminary Questions

  (a)  Questions of admissibility generally.  Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b).  In making its determination it is not bound by the rules of evidence except those with respect to privileges.

 Fed. R. Evid. 104(a); Minn. R. Evid. 104(a) (emphasis added).
27. Jaurequi v. Carter Mfg. Co. Inc., ____ F.3d ____, 1999 WL 185046 (8th Cir. 1999); Black v. Food Lion, Inc., ______ F.3d _____, 1999 WL 173001 (5th Cir. 1999).
28. See, e. g, Paul Godlewski, Low Speed Crashes:  Challenging and Excluding From Evidence the Defense Engineer, Vol I & II (Mn. Trial Lawyers Assn. 1998).  These materials include research studies, detailed articles and affidavits critiquing the studies, transcripts of proceedings, motions, and trial and appellate court decisions excluding engineering testimony.  Available through the Minnesota Trial Lawyers Assn, 706 Second Avenue S., 140 Baker Building, Minneapolis, MN  55402, (612) 375-1707; see also Paul Godlewski, Low Speed Impacts:  Does No Property Damage Equal No Injuries?  22 MN TRIAL LAWYER 10 (Spring 1997); Paul Godlewski, The Best Laid Plans Of the Insurance Industry:  Strategic Nation Wide Planning To Fuel Declining Automobile Collision Verdicts, .Vol. II REFERENCE MATERIALS 2715 (ATLA Annual Convention, Washington D.C., July 10-14, 1998).
29. Carmichael, 119 S. Ct. at 1174, citing Daubert, 509 U.S. at 589, 592-93.  See also Beecher-Monas supra note 5 at 62.
30. Id.
31. Id. at 592.
32. Id. at 590 n.8.
33. Id. at 592-94, cited in Carmichael, 119 S. Ct. at 1175.
34. Brewer, supra, note 7 at 1626 and n.329.
35. Carmichael, 119 S. Ct. at 1175.
36. Joiner v. General Electric Co., 864 F. Supp. 1310, 1320 (D. Ga. 1994).
37. General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997) (emphasis added).
38. BLACK'S LAW DICTIONARY, 743 (5th Ed. West 1979).

 Although not yet doctrinal in the strictest sense, this phrase does identify the linchpin of the court's reasoning in Joiner and Carmichael.  Just because an expert has an opinion to offer does not mean the opinion is admissible, which begs a question beyond the scope of this Article:  "What effect, if any, will Joiner and Carmichael have on the learned treatise exception to the hearsay rule?"  This exception is satisfied based on the ipse dixit of an expert.

 The Minnesota and Federal Rule contain identical language:
Rule 803(18) Hearsay Exceptions:
Availability of Declarant Immaterial.

  (18)  Learned treatises.  To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice.  If admitted, the statements may be read into evidence but may not be received as exhibits.

 Fed. R. of Evid. 803(18); Minn. R. of Evid. 803(18) (emphasis added).
39. Carmichael, 119 S. Ct. at 1176.
40. Id. at 1176.
41. Id. at 1175.
42. Id. at 1176.
43. Jonathan Hoffman, A Briefcase and an Opinion:  Post Daubert Expert Testimony - A Major Shift, 22 PROD. SAFETY & LIABILITY REP. (BNA) 379 (Apr. 8 1994).  (A survey indicating that two thirds of post-Daubert products liability cases citing Daubert excluded expert testimony).  But see, Jay P. Kesan, Note, An Autopsy Of Scientific Evidence in a Post-Daubert World, 84 GEO. L. J. 1985, 2013 (1996) (Observing that post-Daubert courts are more liberal and are admitting more scientific evidence); also, McKnight Ex. Rel. Ludwig v. Johnson Controls, Inc., 36 F.3d 1936 (8th Cir. 1994), where plaintiffs argued that Daubert makes expert testimony more readily admissible, while defendants argued Daubert makes expert testimony less readily admissible.  Id. at 1406.  Beecher-Monas supra note 5 at 75 n.134 and 136.
44. General Electric Co. v. Joiner, 522 U.S. 147, 150 (1997).
45. Id. at 148-49.
46. Carmichael, 119 S. Ct. at 1175.
47. Id. at 1179.
48. Monette v. K.M. Clinch, M.D., Slip Op. CA-9A-329 (MN. Ct. App. Aug. 18, 1998), Finance and Commerce at 37 (Aug. 21, 1998).
49. Id., citing Gross v. Victoria Station Farms, Inc., 578 N.W.2d 179 (MN 1998); Kwapien v. Starr, 400 N.W.2d 179, 183 (MN. Ct. App. 1987).
PAUL GODLEWSKI is a former 10 year member of the MTLA Board of Governors, certified by the National Board of Trial Advocacy and the Minnesota State Bar Association as a civil trial specialist.  Paul is currently the chairperson of the Education Committee, and is a member of the Minnesota Million Dollar Round Table.  Paul Godlewski is a member of the Schwebel, Goetz, and Sieben Law Firm.  His practice is limited to the representation of injury victims, and surviving family members in product liability, negligence, premises liability, and wrongful death cases.