Goodyear Tire and Rubber Co. v. Thompson, 1998-SC-0054-DG.

Citation11 S.W.3d 575
Decision Date24 February 2000
Docket NumberNo. 1998-SC-0054-DG.,1998-SC-0054-DG.
PartiesThe GOODYEAR TIRE AND RUBBER COMPANY, Appellant, v. Dennis THOMPSON and Cigna Insurance Company, Appellees.
CourtUnited States State Supreme Court (Kentucky)

John M. Famularo, Daniel E. Danford, Stites & Harbison, Lexington, for appellant.

Carl R. Clontz, Clontz & Cox, Mt. Vernon, for appellee, Dennis Thompson.

Randall L. Hardesty, Richard M. Joiner, Mitchell, Joiner, Hardesty & Lowther,

Madisonville, for appellee, Cigna Insurance Company.

JOHNSTONE, Justice.

The Goodyear Tire and Rubber Company (Goodyear) appeals from a decision of the Court of Appeals, which reversed the trial court's granting of a directed verdict in a products liability case. We reverse and reinstate the judgment of the Madison Circuit Court.

The principal question raised on appeal is whether a trial court may apply the factors for determining the admissibility of expert scientific testimony set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Mitchell v. Commonwealth, Ky., 908 S.W.2d 100 (1995), overruled on other grounds, Fugate c. Commonwealth, Ky., 993 S.W.2d 931 (1999), to the testimony of engineers and other experts who are not scientists.

Appellee, Dennis Thompson, was injured in the course of his employment while changing a multi-piece tire rim manufactured by Goodyear. In addition to bringing a workers' compensation claim, he filed a products liability suit against Goodyear. In the suit, he alleged that Goodyear negligently designed the rim in question and that Goodyear failed to warn of dangers inherent in changing tires with multi-piece rims. Appellee, Cigna Insurance Company (Cigna), the workers' compensation carrier for Thompson's employer, intervened in the suit to recover by way of subrogation the benefits it paid Thompson.

Prior to trial, Goodyear moved for a hearing pursuant to KRE 104(a) to assess the qualifications of Thompson's proffered expert, Dr. O.J. Hahn, to testify concerning Goodyear's liability for negligent design and failure to warn. The trial court granted the motion and a hearing was held on the matter on May 7, 1996. Dr. Hahn was present at the hearing, was questioned by Thompson's counsel, and was cross-examined by counsel for Goodyear. At the conclusion of the hearing, the trial court excluded Dr. Hahn as an expert witness.

Subsequently, Thompson informed the trial court that, if Dr. Hahn was not allowed to testify as an expert witness, he had no other evidence to present. Goodyear moved for a directed verdict. A recess was called, after which the trial court denied Thompson's motion to continue. Thompson then moved to place Dr. Hahn's testimony into the record by avowal. The motion was granted. At the conclusion of Dr. Hahn's avowal testimony, the trial court granted Goodyear's motion for a directed verdict.

In his appeal to the Court of Appeals, Thompson argued that, in the hearing to determine whether Dr. Hahn was qualified to testify as an expert, the trial court misapplied the standard set forth in Daubert, supra. The Court of Appeals disagreed with this argument. Nonetheless, it reversed the trial judge and held that the trial court abused its discretion in excluding Dr. Hahn as witness. Relying on case law from the Ninth Circuit, the Court of Appeals held that Daubert and Mitchell only applied to testimony that is based on scientific knowledge and, thus, the trial court erred as a matter of law in applying the Daubert factors to Dr. Hahn's testimony which was based on his engineering knowledge.

WHETHER THE TRIAL COURT ERRED IN APPLYING DAUBERT AND MITCHELL TO DETERMINE THE ADMISSIBILITY OF DR. HAHN'S TESTIMONY

Subsequent to the rendition of the Court of Appeals' opinion in this case, the United States Supreme Court granted certiorari in a case to address the issue of whether Daubert was limited to testimony based on scientific knowledge. We abated oral argument in this case until the Supreme Court rendered its opinion, which it did on March 23, 1999. See Kumho Tire Compony v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). After careful review of the additional briefing on the issue, review of the Kumho decision itself, and consideration of the oral arguments presented, we adopt the reasoning of Kumho and hold that Daubert and Mitchell apply

not only to testimony based on "scientific" knowledge, but also to testimony based on "technical" and "other specialized" knowledge. [See KRE 702]. We also conclude that a trial court may consider one or more of the more specific factors that Daubert [and Mitchell mention[]S when doing so will help determine that testimony's reliability. But ... the test of reliability is "flexible," and Danbert's [and Mitchell's] list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Rather, the law grants [the trial] court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination. See General Electric Co. v. Joiner, 522 U.S. 136, 143, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) ([a trial court's reliability determination is reviewed for abuse of discretion]).

Kumho, 526 U.S. at 140-41, 119 S.Ct. at 1171, 143 L.Ed.2d at 246-47. Therefore, the Court of Appeals' central holding that Daubert and Mitchell only apply to testimony based on scientific knowledge is in error.

Next, we note that abuse of discretion is the proper standard of review of a trial court's evidentiary rulings. See Tumey v. Richardson, Ky., 437 S.W.2d 201, 205 (1969); Transit Authority of River City (TARO) v. Vinson, Ky.App., 703 S.W.2d 482, 484 (1985). The same standard applies under the Kentucky Rules of Evidence, including KRE 702. Mitchell, 908 S.W.2d at 102; accord United States v. Abel, 469 U.S. 45, 54, 105 S.Ct. 465, 470, 83 L.Ed.2d 450, 459 (1984). While the Kentucky Rules of Evidence allow a trial court "to admit a somewhat broader range of scientific testimony than would have been admissible under Frye,1 they leave in place the `gatekeeper' role of the trial judge in screening such evidence." General Electric Company v. Joiner, 522 U.S. 136, 141-142, 118 S.Ct. 512, 517, 139 L.Ed.2d 508, 516 (1997). A trial court's ruling on the admission of expert testimony is reviewed under the same standard as a trial court's ruling on any other evidentiary matter. Compare Fugate, 993 S.W.2d at 935 (the decision as to the qualifications of an expert rests in the sound discretion of the trial court and will not disturb such ruling absent an abuse of discretion) with Justice v. Commonwealth, Ky., 987 S.W.2d 306, 314-15 (1998) (a trial court's ruling on relevancy under KRE 403 is reviewed under an abuse of discretion standard). Thus, we are left with the question of whether the trial court abused its discretion in excluding Dr. Hahn's testimony.

KRE 702

For the sake of clarity, we begin with a brief review of the application of Daubert and Mitchell to a proffer of expert testimony pursuant to KRE 702.

"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." KRE 702.

When faced with a proffer of expert testimony, the trial judge must determine at the outset of trial, pursuant to KRE 104, "whether the expert is proposing to testify to (1) scientific [, technical, or other specialized] knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Daubert, 509 U.S. at 592, 113 S.Ct. at 2796, 125 L.Ed.2d at 482. In order to meet the above standard, proffered expert testimony, which is based on "scientific, technical, or other specialized knowledge," must be both relevant and reliable. Id. at 589, 113 S.Ct. at 2795, 125 L.Ed.2d at 480.

The consideration of relevance has been described as one of "fit."

"Fit" is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes .... The study of the phases of the moon, for example, may provide valid scientific [, technical, or other specialized] "knowledge" about whether a certain night was dark, and if darkness is a fact in issue, the knowledge will assist the trier of fact. However, (absent creditable grounds supporting such a link), evidence that the moon was full on a certain night will not assist the trier of fact in determining whether an individual was unusually likely to have behaved irrationally on that night.

Daubert, 509 U.S. at 591, 113 S.Ct. at 2796, 125 L.Ed.2d at 481-82 (internal citation omitted).

The consideration of reliability entails an assessment into the validity of the reasoning and the methodology upon which the expert testimony is based. It is the inquiry into the reasoning and methodology where application of the Daubert and Mitchell factors comes most into play. We emphasize that the inquiry into reliability and relevance is a flexible one. The factors enumerated in Daubert and Mitchell are neither exhaustive nor exclusive. A trial court may apply any or all of these factors when determining the admissibility of any expert testimony.

The factors set forth in Daubert and adopted in Mitchell that a trial court may apply in determining the admissibility of an expert's proffered testimony include, but are not limited to: (1) whether a theory or technique can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether, with respect to a particular technique, there is a high known or potential rate of error and whether there are standards controlling the technique's operation; and (4) whether the theory or technique enjoys general acceptance within the relevant scientific, technical, or other...

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