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“Soft Sciences” and Expert Testimony

It has been almost 30 years since Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), liberalized the admission of scientific opinion evidence by shifting the inquiry away from general acceptance in the scientific community to an analysis of relevance and reliability of the underlying scientific theory or process. (i.e., methodology). Although Daubert is frequently used to attempt to exclude expert opinion testimony, there should be no mistaking the decision’s purpose. Daubert set a more inclusive standard that opened the possibility for parties to use new, novel, or controversial methodologies in litigation.

Massachusetts was among the States that followed the United States Supreme Court in this direction, and it did so early, a year after Daubert, in the decision Commonwealth v. Lanigan, 419 Mass. 15, 641 N.E.2d 1342 (1994). In Canavan’s Case, 432 Mass. 304, 733 N.E.2d 1042 (2000), the Supreme Judicial Court of Massachusetts (SJC) summarized the Commonwealth’s standard as follows:

“[A] proponent of scientific opinion evidence may demonstrate the reliability or validity of the underlying scientific theory or process by some other means, that is, without establishing general acceptance.” We noted, however, that in most cases, general acceptance will be the significant and “often the only, issue.” Thus, we have concluded that a party seeking to introduce scientific evidence may lay an adequate foundation either by establishing general acceptance in the scientific community or by showing that the evidence is reliable or valid through an alternate means.

One of the difficulties associated with Daubert and its progeny – both Federal and State – is that the analysis was born out of cases involving so-called “hard sciences,” but its framework applies to “soft sciences” as well. Even though. Specifically, the inquiry was intended to be flexible the earliest articulated standard considered factors associated with “hard sciences,” including: (1) whether the method can be (and has been) tested, (2) if the method has been subjected to peer review and publication, (3) the method’s known or potential error rate, (4) the existence and maintenance of standards controlling the technique’s operation, and (5) whether the method has achieved general acceptance.

This challenging issue was the focal point of the recent SJC decision, Commonwealth v. Hinds, 487 Mass. 212, 166 N.E.3d 441 (2021). In Hinds, the defendant was indicted for assault and battery by means of a dangerous weapon resulting in serious injury. He was convicted on both counts. The defendant, who was black, claimed that he was acting in self-defense after he was attacked out of racial animus by a white man.

The defendant sought to have two experts testify concerning the cultural significance of a tattoo on the white man’s arm, which the defendant claimed was a symbol affiliated with groups that espoused white supremacist ideology. The two experts were Dr. Sophie Bjork-James and Dr. Jesse De La Cruz. Dr. Bjork-James has a doctorate in cultural anthropology and studies the white nationalist movement. Dr. De La Cruz has a doctorate in educational leadership and is an expert on gangs. The trial court judge excluded both experts on reliability grounds. The SJC held that the court’s decision to exclude Dr. Bjork-James was an abuse of discretion, which resulted in prejudicial error. The SJC found no error concerning the trial court’s exclusion of Dr. De La Cruz.

The SJC’s analysis included some noteworthy points:

• The SJC started with the issue of relevance even though the judge did not base his ruling on that ground and neither party raised the issue at trial or appeal. The SJC did so because it appeared that the trial court made an inaccurate assumption about the purpose of the proffered experts’ testimony and their importance to the defendant’s theory of self-defense. Basically, if the trial court misconstrues or a party does not explain relevance of expert opinion evidence to a particular claim, then the analysis of reliability can be undermined. This, it seems, is part of what happened in this case based on the SJC’s reference to other decisions involving tattoos and motive.
• The SJC stated, “The soft sciences are not entitled to less consideration than their hard science counterparts, but the methodologies of each do differ.” It explicitly noted that Daubert’s nonexclusive factors are not easily imposed methodologies used in the “soft sciences.” The SJC cited Canavan’s Case as part of this discussion, which indicates that this is not a new wrinkle in Daubert-Lanigan analysis. Scientific opinion evidence based on findings that are based largely on nonrepeatable observation may be admissible, as it was in this case with respect to Dr. Bjork-James.
• In the case of “soft sciences,” the SJC suggests a wider path for admissibility and an allowance for expert opinion testimony that doesn’t revolve around a true/false or yes/no paradigm. It leaves room for “maybe” or opinions that are conditional upon a certain set of facts/assumptions. The following line from Hinds makes this apparent – “Because different subject matters allow for varying degrees of certainty, the metrics used to assess reliability understandably vary across areas of expertise.”

Hinds also highlights the challenges associated with a motion to exclude based on the “fit” requirement. The “fit” requirement is the idea that there must be a connection between scientific research or a test result and the facts in a case. It occasionally appears in decisions but is often difficult to articulate because “fit” objections come close to the line of challenging the conclusions themselves. The latter is not permitted. In Hinds, one expert fulfilled this requirement (Bjork-James) while the other did not (De La Cruz) because his opinion was “connected to existing data only by the ipse dixit of the expert.” The SJC did not make any definitive statements regarding the “fit” requirement but did suggest that details are important. For example, in the case of Dr. Bjork-James, the trial court erred because it focused on the wrong conclusions. However, with respect to Dr. De La Cruz’s his proposed testimony discussed his methodology in generalities and abstract terms, which opened him up to a successful challenge; qualifications are not a substitute for reliability or “fit.”

Hinds does not make challenging expert opinion testimony a futile endeavor. It does, however, demonstrate the need for these types of admissibility challenges to use a careful approach. When attempting to challenge expert opinion testimony, regardless of the area of specialty, the most effective challenges will be those that home in on the area of specialization or technical expertise. Simply checking off potential problems with the Daubert “factors” is unlikely to yield the desired results, especially if those factors do not fit the root of the objection to the opinion and testimony at issue. Daubert and its progeny require the courts to be flexible, so challenges need to meet courts where they are and be clear about the relevant facts, assumptions, and conclusions that are at issue.

This may mean more targeted admissibility challenges in some cases. In the case of “soft sciences” or expert option testimony that is more conditional in nature, it will likely require a more nuanced argument. In such a case, discovery depositions and expert reports (if allowed or required) is critical to allow proper framing of the issues. If an admissibility challenge is a close call, it may mean that educating the court about the issues about what is to come becomes a co-equal goal.