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I-O Psychology in the Courtroom: Implications of the Daubert Standard

Michael M. Harris
University of MissouriSt. Louis

There is no doubt that social scientists in general and I-O psychologists in specific continue to play an important role as expert witnesses in the courtroom (Thornton & Webb, 1998). I-O psychologists have been involved as expert witnesses in a variety of employment discrimination lawsuits, testifying on a range of topics including stereotyping, statistics, validation, and performance and appraisal systems, to name a few. Although there is a long history of expert witnesses in the courtroom, a recent Supreme Court decision (Daubert v. Merrell Dow Pharmaceuticals, 1993) has important implications for the admissibility of expert testimony. The purpose of this paper is to provide a brief background to I-O psychologists as to what the Daubert standard is, discuss some selected cases of direct relevance for I-O psychology, and offer suggestions regarding the Daubert standard for the practice of expert testimony by I-O psychologists. 

Admissibility of Expert Testimony: A Brief History

The question of admissibility of expert testimony has focused on three major turning points: the Frye standard, which dates back to 1923; the Federal Rules of Evidence, which date back to 1975; and the Daubert standard, which was considered in a 1993 Supreme Court decision. Each of these points is described in greater detail. 

Frye standard. The first major case involving an expert witness in the United States was decided in 1923 by the Court of Appeals for the District of Columbia. This case involved an accused murderer, Frye, who took a blood pressure deception test to help determine his innocence or lack thereof. According to the expert, the test indicated Fryes innocence. The prosecutors objection to the use of the test was sustained by the judge, who ruled that the test lacked sufficient general acceptance in the field to be considered admissible as evidence. This ruling was confirmed by the Court of Appeals. For many years, this became known as the Frye standard. (Interestingly enough, however, another person eventually confessed to the crime, and Mr. Frye was freed). One issue that continued to be discussed in terms of the Frye standard was its applicability to scientific, as opposed to non-scientific, areas. Given the context, the Frye standard was presumed to apply to nonscientific areas of inquiry, and debate took place over the role of the Frye standard with regard to scientific areas of inquiry.

Federal rules of evidence. In 1972, the Supreme Court endorsed a set of rules of evidence, which were subsequently approved by Congress and became effective in 1975. Of particular interest here is Rule 702, which states that:

If scientific, technical, or other specialized knowledge will assist the trier of fact [i.e., the judge or jury] 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. 

Essential to the understanding of Rule 702 was the absence of any mention of the expert opinion having to conform to general acceptance within the field. As a result, different courts came to different conclusions regarding the standard that should be applied to expert testimony. Some courts felt that Rule 702 provided a more lenient standard of admissibility than the Frye standard and ruled accordingly. Other courts felt that the Frye standard continued to hold sway, while yet other courts felt that the Frye standard was useful in a more limited way.

Daubert standard. In order to resolve the confusion resulting from Rule 702, the Supreme Court granted certiorari in a case referred to as Daubert v. Merrell Dow Pharmaceuticals. The case concerned women who had used an antinausea drug, Bendectin, during pregnancy. The plaintiffs, their progeny, asserted that they had suffered birth defects as a result of the drug. To prove their arguments, the plaintiffs used a number of experts, including a veterinarian, a biologist, and several medical doctors. The district court initially denied affidavits from these experts, but not for reasons relevant to Rule 702. Upon appeal, the court turned attention to Rule 702, emphasizing the importance of the Frye standard, and ruled against the plaintiffs experts on the grounds that the methodology was not generally accepted within the profession.

The Supreme Court decision in Daubert was reported in 1993. In a unanimous decision, the Court concluded that the Federal Rules of Evidence in general, and Rule 702 in specific, replaced the Frye standard. In addition, the Court observed that the trial judge had to make sure that the expert testimony was not just relevant, but reliable. In order to help determine both relevance and reliability, the Court offered four factors that a trial judge might consider in making these determinations: Whether the experts analysis derives from a scientific method that can be or has been tested; whether the experts method has been the subject of peer review and testing; the actual or potential rate of error in the experts methodology; and whether the relevant scientific community generally accepts the experts methodology.

The Daubert decision, as well as subsequent cases (e.g., Kumho Tire Co. v. Carmichael, 1999), have also provided the parties in a lawsuit with the right to request a pretrial hearing in which the judge can apply the Daubert criteria in determining whether to disallow the experts testimony. The judge, therefore, has a much greater role as a gate keeper in determining whether an experts opinion should be admitted. As a result, experts will be more carefully scrutinized by the judge before being allowed to testify.Daubert Standard Applied to I-O Psychologists: Selected Cases

I located three recent court decisions that specifically address the application of the Daubert standard to I-O psychologists. In the first two cases, the judge accepted their testimony. In the third case, the judge rejected the testimony of the I-O psychologist. A brief review of the facts in each of these three cases is offered next, followed by comments on two related court decisions. 

Bryant v. City of Chicago. This case involved an appellate court decision concerning race discrimination in a police lieutenant promotion examination for the city of Chicago. The district court ruled largely in favor of the city of Chicago on the grounds that while there was disparate impact, the examination was job related. The plaintiffs appealed the decision on the grounds that, among other things, the I-O psychologists testimony supporting the job relatedness of the examination should not have been admitted because it did not meet the Daubert standards. Specifically, the plaintiffs argued that his testimony on validity and rank-order decision making lacked scientific validity and asserted, therefore, that the I-O psychologists opinion was not reliable. In rejecting the plaintiffs argument, the judge focused on the fact that the key question was whether the expert used the same level of intellectual rigor in the courtroom as was used by experts in I-O psychology. In that light, the judge pointed out that the I-O psychologist had authored about 50 articles dealing with selection and promotion issues in peer-reviewed journals and that he had based his testimony on an appropriate scientific method, namely, a job analysis relating the skills measured in the test and the competencies required to perform the job. 

Gonzalez v. Conoco. This case involved a sex and national origin discrimination charge in a reduction in force (RIF) situation. An I-O psychologist had been asked to testify regarding the procedures and processes that were used in the layoff. A key point in the plaintiffs arguments for disallowing this testimony was that it was not of a scientific or specialized nature, and therefore, no expert opinion was appropriate or necessary. The judge largely ruled against the plaintiff, arguing that information about the layoff and why the plaintiff was included in the layoff were topics requiring specialized knowledge. In support of the I-O psychologists expertise, the judge noted that he has written and has testified as an expert numerous times in discrimination cases. 

Camp v. Lockheed Martin. Unlike the two previous cases, in this lawsuit the I-O psychologists testimony was dismissed. The case involved David Camp, manager of a human research facility, who was terminated from Lockheed Martin. Camp charged that he was discriminated against because of his age. The I-O psychologist, working on behalf of the plaintiff, used his previous research on age discrimination to testify about how Lockheed Martin made termination decisions, concluding that the decision process was probably influenced by the age of the plaintiff. In dismissing his testimony, the judge emphasized two issues. First, the judge observed that the I-O psychologist had disregarded his own disclaimer about generalizations from research, namely, that in certain circumstances older workers may be given better treatment than younger workers. As stated by the judge, [I]t is inconsistent with the scientific method for an expert to rely selectively on portions of a study which support the conclusion he has been hired to provide, while ignoring significant portions of the study which contradict the desired conclusion. Second, the judge noted that this testimony was not relevant to the case because while the I-O psychologist had concluded that unconscious stereotypes had been operating, the question in the case was whether intentional discrimination had occurred. Because the I-O psychologists testimony concerned a different kind of discrimination, it could possibly confuse the jury. 

Related cases. Two other cases involving I-O-related topics are worthy of examination. In Huey v. United Parcel Service, an expert with a human resource development doctorate testified that the plaintiff, who had been terminated, was the victim of retaliation. In rejecting the experts opinion, the judge observed that the expert based his decision on little more than a meeting with the plaintiff and an examination of the attorneys documents. The judge observed that an expert who merely provides an opinion, without offering the underlying analysis that led to the opinion, fails to meet the Daubert standard.In Kinnaman v. Ford Motor, the judge dismissed the testimony of the plaintiffs vocational expert. The vocational expert had combined information about job requirements with work limitations for the plaintiff in an Internet job database system to determine suitable employment. The judge in that case dismissed the expert on the grounds that this technique failed to meet any of the Daubert criteria for reliability. Key to the decision was the general lack of acceptance of the procedure in the scientific community. 

Implications of Court Cases Involving Daubert
Standard Applied to I-O Psychologists

I believe that the implications of these cases for I-O psychologists can be summarized as follows: 

Research publications are one means, but not the only means, of proving qualifications. Being the author of peer-reviewed publications would appear to help experts meet the requirement that their method has been the subject of peer review and testing. It seems clear, however, that having peer-reviewed articles is not a requirement. 

Be aware that publications can also be used against the expert. Experts should expect to have any apparent contradictions between their publications and their testimony to be raised by the opposing attorneys. For example, in the Lockheed Martin case discussed above, the I-O psychologists publications had noted various exceptions to the finding that older workers are rated lower than younger workers. In critiquing his testimony, the judge pointed out these inconsistencies. 

Experience and training may be used as indicators of the experts qualifications, but knowledge of the literature is important too. As indicated in some of the cases described above, it is clear that research publications are not a requirement for expert testimony. On the other hand, failure to use current techniques and methodologies will be problematic. It would appear that a good knowledge of current literature would be very helpful for the I-O psychologist who is serving as an expert witness. 

It will be essential to be able to demonstrate ones method of analysis. It appears that the expert will increasingly need to demonstrate how and why his or her conclusion was reached. Merely listing ones conclusions will not suffice. In some areas (e.g., validation research), I believe that basic, commonly accepted standards are more likely to exist. In other areas (e.g., reductions in force), I would submit that standardized, well-accepted procedures are less likely to exist; therefore, I-O psychologists must be even more vigilant to ground their findings in relevant research and practice. 

It will become increasingly important to understand the scope of the legal claim. As illustrated in the Lockheed Martin case, I-O psychologists must be aware of the fit between their testimony and the legal theory they are addressing. For example, the type of proof needed in a disparate treatment and a disparate impact case is quite different (Player, 1999). I-O psychologists should make sure that they understand how their testimony will apply to the legal issue being considered. 

Conclusions

While the Daubert standard would appear to impose a greater hurdle for all experts to jump, I do not consider this to be a bad outcome. I think that instead, the Daubert standard will compel I-O psychologists to perform higher quality work and to be more careful to ensure that their work meets the highest professional standards. The Daubert standard should also result in I-O psychologists staying abreast of current research. In that way, the Daubert standard will probably help rather than hurt us as a profession.

References

Player, M. (1999). Federal law of employment discrimination. St. Paul, MN: West Group.

Thornton, G., & Webb, J.R. Esq. (January, 1998). Can evidence on employment tests meet Daubert standards? Employment Testing: Law & Policy Reporter, 7, 19, 14.

Note: The author thanks Bob Kaiser for his comments on this article.


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