Daubert Institute for Forensic Psychology

                                         An Expert's New Role under Daubert

 Judges in Daubert jurisdictions may require psychologists and psychiatrists to submit declarations
to the court defending the reliability of their methods and how they comply with Daubert criteria.
These experts must know the various validity and reliability studies underlying their methods including
psychological testing and be able to write a compelling declaration for the court before being
permitted to proceed with an IME.


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Published in:
                                                            Focus
                                   San Francisco Daily Journal. April 26, 2006.  

                   Litigators Need To Use Science To Debunk Expert Testimony

                                                                By

                                                  John F. Fielder, Ph.D.

"...a critical attitude toward a subject can only be adopted when a complete mastery of its content
has been attained. As long as the pupil is in the textbook stage he is prepared to accept, and is
usually only too ready to accept, statements without any very searching inquiry into their foundation."
                                                                                -Norman Robert Campbell
                                                                                  Foundations of Science

Introduction
It is of central importance that litigators understand and deal effectively with expert testimony in cases
that contain claims for emotional distress.  Attorneys have long struggled to cope with the arcane
testimony of psychiatric and psychological experts with varying degrees of success.  The problem
has stemmed from inadequate standards of evidence and the fact that they have not used the tools
of science to analyze and differentiate between reliable and unreliable psychiatric and psychological
testimony as is now required by Daubert. Using relevant concepts in statistics, probability theory and
experimental design attorneys can successfully challenge and exclude unreliable psychiatric and
psychological testimony.  One cost-effective way to learn how to use these tools is through the use of
consultant experts during the discovery process.

Evolving Legal Standards for Scientific & Expert Testimony
It has been thirteen years since the U.S. Supreme Court unanimously set a new Federal standard for
scientific expert testimony in Daubert v. Merrell Dow Pharmaceuticals, Inc. and since embodied in
the Federal Rules of Evidence.  Subsequently, in General Electric Co.v. Joiner, the Court, in
recognizing that the methodology and conclusions of an expert are inextricably interrelated, allowed
lower courts to exclude an expert’s conclusions if they are unreliable.  And, in Kumho Tire Co. v.
Carmichael, the Court also specifically held that the non-inclusive checklist for assessing whether or
not proffered expert testimony meets the Daubert criteria of reliability also “applies not only to
testimony based on ‘scientific’ knowledge, but also to knowledge based on  ‘technical’ and ‘other
specialized’ knowledge.  The fact is, however, that research has revealed that only 5% of state court
judges have the scientific literacy necessary to properly apply Daubert.  It is therefore in the best
interests of litigators to take the lead in challenging the expert testimony of psychologists and
psychiatrists.  This does not mean, however, that they must become experts in statistics, probability
theory and experimental design.  They need only learn the concepts of these subjects that pertain to
clinical psychology and psychiatry and the relevant literature that supports the exclusion scientifically
unreliable testimony in additions to changing the focus of the discovery process.

Discovery of Expert Qualifications is Vital
  An in depth discovery of expert qualifications is vital for challenging psychiatric and psychological
testimony in this post-Daubert era and specifically requires an inquiry into an expert’s formal
education in statistics, probability theory and experimental design.  This is relevant as it speaks to
his or her ability to critically evaluate the validity and reliability of theories and methods in addition to
research upon which they may rely upon in forming an opinion(s).  This is of particular importance
because most psychiatrists and many clinical psychologists, especially those with a Psy.D. degrees
have at the most a minimal education in these subjects and are therefore unable to form accurate
judgments regarding the validity and reliability of the methods, theories and diagnoses they use in
their clinical assessments.  

 Lines of questioning in this area should elicit undergraduate and graduate courses completed in
statistics, probability theory and experimental design in addition to questions about relevant
concepts to the subjects themselves.  For example, what are Type I and Type II errors?  Alpha and
beta?  What is Construct Validity?  Inter-rater reliability?  What is a t-test or a standard deviation?  
What is the difference between experimental designs and quasi-experimental designs?  What is the
difference between random selection and random assignment?  Lines of inquiry should of course be
framed within the context of the work performed in a particular case, the methods and theories used
and proffered opinions.  If there is a diagnosis of Post Traumatic Stress Disorder, for example, what
is the construct validity of this particular Diagnostic and Statistical Manual of Mental Disorders - IV
(DSM-IV) disorder?  What is the inter-rater reliability for diagnosing this disorder?  The testimony of
an expert who cannot answer these questions should be excluded.

Discovery of the Validity and Reliability of Expert Methods & Theories
  In the practice of psychiatry and clinical psychology there are only two methods available to
clinicians for obtaining data from patients and they are the structured and/or unstructured diagnostic
clinical interview and psychological testing.  There are currently no medical tests that can be reliably
used in the diagnosis of mental disorders.  Discovery in this area should go to the clinician’s
knowledge of the validity issue in the diagnostic process.  It is a well-known fact that the diagnostic
process as represented by the DSM-IV that validity has been sacrificed for inter-rater reliability and
that diagnostic categories are viewed as hypotheses by the creators.  Validity in this context means
how well the instrument (clinician) measures what it is supposed to be measuring.  Studies designed
to establish the construct validity of diagnostic categories are totally absent with regard to the DSM-
IV.   With regard to the diagnostic interview, lines of questioning should also address the issue of
clinician bias and the effect of different theoretical orientations on the collection of data from
patients.  One clinician may see depression being caused by a real or perceived loss while another
may view the cause the result of a putative  “chemical imbalance”.  There are in fact so many different
theories of mental functioning and causes of mental disorders that have no scientific support as to
make the entire discipline incomprehensible to an outsider.

 The second method, psychological testing, has been greatly misused in an attempt to answer
forensic questions.  Results of tests designed for clinical purposes have been relied upon to form
opinions regarding the existence and cause of emotional distress and psychological damage   
causes of action.  Lines of questioning should go to an expert’s formal education and training in the
construction, administration, scoring and interpretation of tests.  For a particular test, inquiry into the
purpose for which the test was designed and how it was developed as well as its norms and
predictive and external validity. There is only one psychological test, excluding certain concurrently
validated neuropsychological tests, that should ever be admitted into evidence and that is the
Minnesota Multiphasic Personality Inventory (MMPI-2) and this is with strict limitations.  The MMPI-2
has seven well-studied validity scales and if someone is faking or exaggerating it is likely to catch
that since it is very difficult to fake consistently.  The test provides a means to cross check for
inconsistent or contradictory statements within the test itself and against other evidence in a case.  

The Majority of Psychological & Psychiatric Expert Testimony is Unreliable
  An expert’s opinions are based on data obtained by the methods and guided by the theories
particular to the discipline.  Theories determine what you can see.  If those methods and theories are
flawed and do not produce scientifically valid data then reliability is moot.  Using the tools of science
described here it will be discovered that the vast amount of psychiatric and psychological testimony
is unreliable for forensic purposes and therefore should be inadmissible as evidence.  Attorneys
have the means to exclude unreliable evidence through in limine and Daubert motions or if that
approach is unsuccessful through the use of a rebuttal expert if a case goes to trial.  There is a
voluminous scientific research literature to support a motion or rebuttal.

Recommendations
  1.  Hire a consultant expert early to evaluate a plaintiff’s claim of emotional distress and analyze the
opposing expert’s methods and report before deposing either.  The consultant can suggest lines of
questioning for the depositions of the plaintiff and expert that could provide useful evidence.

 2.  Schedule a two-part deposition of the opposing expert.  This provides an opportunity to analyze
any research the expert is relying upon and generate additional lines of questioning regarding his or
her previous testimony.

 3.  Avoid competing experts at trial.  This model introduces far too many extraneous and potentially
prejudicial factors such as persuasiveness and likeability of an expert.  The overwhelming population
of jury members will not understand scientific issues and will believe the expert who appears more
credible.  

4.  Above all, stay focused on what is scientific, i.e., valid and reliable.  Do not get caught up in the
superficial, speculative and unsubstantiated theories that make up almost all psychological and
psychiatric testimony.

References
1.  Daubert v. Merrell Dow Pharmaceuticals, Inc. 113 S. Ct. 2786 (1993).
2.  Diagnostic and Statistical Manual of Mental Disorders (1994). American
Psychiatric Association. 4th Ed.
3.  Gatowski, S.I., et. al., (2001). Asking the gatekeepers: A national survey of judges on judging
expert evidence in a post-Daubert world. Law and Human Behavior, 25(5), 433-458.
4.  General Electric Company v. Joiner. 522. U.S. 136 (1997).
5.  Kumho Tire Company v. Carmichael, 526 U.S. 137 (1999).

Dr. John Fielder is a clinical and forensic psychologist.  He can be reached at (916) 878.0355 or at
drfielder@daubertinstitute.com for questions about this article.

--------------------------------------------------------
John F. Fielder, Ph.D.
(916) 878.0355
"The history of medicine is full of examples of ingenious but almost completely false theories about various ills
and their treatments, put forward in pseudo-scientific guise by qualified medical examiners."
                                                                                                 John K. Wing, M.D., Ph.D.
                                               NEW ARTICLE
Fielder, J. (August 11. 2011) Chasing Daubert: Excluding Unscientific & Unethical
Psychiatric & Psychological Testimony. The Recorder Online: Practice/Litigation
Section.

Porter, S. & ten Brinke, L. (2010). The truth about lies: What works in detecting
high-stakes deception? Legal and Criminological Psychology, 15, 57-75.