Expert Challenges in Missouri Civil Cases After McDonagh

Michael D. Murphy1

Ross D. McFerron1

In State Board of Registration for Healing Arts v. McDonagh, the Supreme Court of Missouri clarified the standard for the admissibility of expert testimony in Missouri.² But what does McDonagh really mean to Missouri trial attorneys faced with expert admissibility questions? This article looks at McDonagh and its progeny, with an emphasis on its practical implications, and closes with an examination of what to challenge under Missouri law, and how to make that challenge.

I. The Statutory Standard – Section 490.065, RSMo

The Missouri General Assembly enacted §§ 490.065, RSMo, in 1989. The section was intended to govern the admissibility of expert testimony in Missouri civil cases. It provides:

1. In any civil action, 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.

2. Testimony by such an expert witness in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

3. The facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable.

4. If a reasonable foundation is laid, an expert may testify in terms of opinion or inference and give the reasons therefor without the use of hypothetical questions, unless the court believes the use of a hypothetical question will make the expert’s opinion more understandable or of greater assistance to the jury due to the particular facts of the case.³

The statute, by its own terms, is relatively simple. It clearly applies to “any civil action.”⁴ Its standard for expert testimony can easily be broken down into five requirements: (1) “scientific, technical or … specialized” testimony; (2) witness qualification; (3) assistance to the trier of fact; (4) reasonably relied on “facts or data”; and (5) otherwise reliable facts or data. Finally, § 490.065 is nearly identical to the federal standard for expert testimony set forth in Rules 702 and 703 of the Federal Rules of Evidence.⁵

There are, however, three primary differences between § 490.065 and the applicable federal rules. First, § 490.065 purports to apply only to “civil actions,” while Federal Rules of Evidence 702 and 703 apply to all federal cases.⁶ Second, § 490.065 does not include the additional reliability requirements that were added to Federal Rule of Evidence 702 in 2000.⁷ Finally, § 490.065.3 “require[s] that the facts or data on which an expert bases an opinion or inference ‘must be of a type reasonably relied upon by experts in the field in forming opinions or inferences on the subject.’”⁸ Under Federal Rule of Evidence 703, however, such a requirement exists only if the facts or data are not themselves admissible as evidence.⁹

Despite the explicit difference between § 490.065 and the federal rules, Missouri courts, prior to McDonagh, struggled to decide what standard governed the admissibility of expert evidence. Even after the General Assembly enacted the section in 1989, Missouri appellate courts were split as to the proper standard.¹⁰ Some courts applied the Frye general acceptance standard.¹¹ Other courts expressed the belief that the adoption of § 490.065 mandated application of the Daubert approach that is used to interpret the Federal Rules of Evidence.¹² Ultimately, this confusion led to the Supreme Court of Missouri’s important decision in McDonagh.¹³

II. The McDonagh Decision

A. Facts

In McDonagh, the State Board of Registration for the Healing Arts (the “board”) filed a complaint against Dr. McDonagh, an osteopathic physician.¹⁴ The complaint alleged that Dr. McDonagh endangered his patients’ health through the inappropriate provision of chelation therapy.¹⁵ The board sought to suspend Dr. McDonagh’s medical license at a hearing before the Administrative Hearing Commission (the “commission”). At the hearing, the board’s expert testified “that the use of chelation therapy to treat vascular disease is not generally accepted” and falls short of the standard of care.¹⁶ Dr. McDonagh then offered expert testimony that supported the use of chelation therapy for treating vascular disease.¹⁷ The board objected to the testimony’s admission, but the commission ruled that it was admissible.¹⁸ The circuit court affirmed the decision of the Administrative Hearing Commission.¹⁹ Ultimately, the Supreme Court of Missouri granted transfer to determine the appropriate standard for the “admission of expert testimony in civil and administrative cases.”²⁰

B. Holding

The Supreme Court of Missouri reversed the decision of the Administrative Hearing Commission, holding that the commission failed to use the proper standard in determining whether the testimony of Dr. McDonagh’s expert was admissible.²¹ The Court further held that the correct “standard for the admission of expert testimony in civil [and administrative] cases is that set forth in section 490.065.”²² This holding, according to the Court, was merely a reaffirmation of its prior holding in Lasky v. Union Electric Co., which mandated the use of § 490.065.²³ But because Missouri courts had expressed confusion²⁴ as to the proper standard for the admissibility of expert testimony, the Supreme Court used McDonagh as an opportunity to clarify the proper standard. According to the Court, civil cases since Lasky that applied a standard other than § 490.065 were incorrectly decided.²⁵

Much of the Supreme Court’s decision focused on the differences between § 490.065 and the standard used in federal court.²⁶ The Court emphasized that because there were key differences in the two standards, federal cases were not controlling.²⁷ The Court did, however, recognize that only a few cases had interpreted § 490.065.²⁸ As a result, the Court said that “cases interpreting [the] federal rules provide relevant and useful guidance in interpreting” the state standard to the extent that the state statute mirrors the federal rules.²⁹ To the extent that the state statute differs from the federal rules, however, the Court held that the state standard must govern.³⁰

The Court’s decision ultimately turned on one of the differences between the state and federal standards. That difference is found in § 490.065.3. Under that subsection, “[t]he facts or data …upon which an expert bases an opinion or inference…must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject.” Accordingly, the identity of the particular scientific field is important in evaluating all expert testimony in Missouri civil cases.³¹

The identity of the relevant field to which the expert belonged was one of the key issues in McDonagh.³² Dr. McDonagh argued that the relevant field was those practitioners who use chelation therapy.³³ The commission appeared to accept this argument.³⁴ The Supreme Court reasoned that limiting the field to doctors who already approve of the therapy at issue would make the inquiry required under the statute meaningless. Instead, the Court held that “[t]he relevant field [is] determined not by” the particular approach (i.e., chelation therapy) a “doctor chooses to take, but by the standards in the field in which the doctor has chosen to practice.”³⁵ Therefore, the Court determined that the relevant field in McDonagh was all physicians who treat patients with vascular disease, not just those who use chelation therapy to provide such treatment.³⁶

Because its decision focused heavily on the relevant field of experts, the Court was careful to explain that it was not “readopting the Frye [general acceptance] standard.”³⁷ The Court clearly stated that § 490.065.3 does not require that an expert’s conclusions be generally accepted in the relevant field.³⁸ Instead, the statute simply requires that the underlying facts or data used by the expert are “reasonably relied on by experts in that field.”³⁹

C. Practical Implications

The lesson that McDonagh provides for Missouri attorneys is clear. When a court is faced with a decision as to whether expert testimony is admissible, Frye does not apply. Neither, necessarily, does Daubert. Instead, courts must simply apply § 490.065.⁴⁰ This does not mean that cases decided under the Daubert standard are worthless. Rather, courts may refer to the Daubert standard when interpreting Missouri’s statutory language that is identical to language in the federal rules. Decisions applying Daubert are especially helpful in interpreting §§ 490.065.1 and 490.065.2. But Daubert decisions are less helpful when applying the requirement in § 490.065.3.

Under the statute, a court must use a two-part test to evaluate the underlying facts or data on which an expert’s opinion is based.⁴¹ First, the court must find that the facts or data are of the type reasonably relied on in the relevant field. Second, the court must itself accept the facts or data as otherwise reasonably reliable. As a practical matter, this means that Missouri’s statutory standard for expert admissibility is more stringent than Daubert and the federal rules.⁴² Why is the Missouri standard more stringent? Because the relevant scientific community must be defined in every case. In all cases, the underlying facts or data “must be … reasonably relied upon” by the appropriate “field,”⁴³ and even if a court finds that those in the appropriate field rely on the facts or data, the court itself must make the final determination that the testimony offered is “otherwise reasonably reliable.”

II. Post-McDonagh Opinions Addressing Expert Admissibility

The McDonagh Court acknowledged that few decisions have interpreted § 490.065.⁴⁴ Since McDonagh, new decisions in the area of expert testimony have been relatively limited and generally unremarkable. A few recent decisions, however, do provide a glimpse of how Missouri appellate courts view the role of the trial judge as the gatekeeper for potential expert testimony.

A. McGuire v. Seltsam

The Supreme Court of Missouri took a relatively hard-line approach in evaluating the basis for an expert’s testimony in McGuire v. Seltsam.⁴⁵ The plaintiff in McGuire was injured when her vehicle was struck by the defendant’s tractor-trailer truck.⁴⁶ The plaintiff received a judgment after trial, but appealed.⁴⁷ On appeal, the plaintiff argued that the testimony of the defendant’s expert witness was improperly admitted.⁴⁸

More specifically, the plaintiff argued that the defense expert’s testimony was inadmissible because her diagnosis was based upon the “assumption” that certain medical records existed, even though the expert did not review those particular records.⁴⁹ The defendant’s expert was a forensic psychiatrist.⁵⁰ “She testified [that the plaintiff] suffered from a somatization disorder.”⁵¹ This finding was based solely on a “review of some of [the plaintiff’s] medical records.”⁵² The expert acknowledged that for a patient “to be diagnosed with [a] somatization disorder, the person must have…some somatic complaints…prior to the age of 30.”⁵³ She also conceded that she did not review any medical records dating back to when the plaintiff was 30 years old or younger.⁵⁴ Rather, the expert claimed that the records she did review showed some complaints that the plaintiff said had “been around for a number of years.”⁵⁵ She also argued that if she could have gained access to earlier medical records, they would have supported her conclusion.⁵⁶

The Supreme Court held that the trial court abused its discretion in admitting the defendant’s expert’s testimony because “[t]he records reviewed by [the expert]…[did] not contain evidence from which [the expert] could reasonably have made her assumption.”⁵⁷ In reaching its decision, the Court cited § 490.065.3. The Court did not specify which prong of reliability formed the basis of its opinion.⁵⁸

B. Goddard v. State

In Goddard v. State, the Missouri Court of Appeals for the Southern District attempted to clarify the difference between evaluation of the facts or data on which an expert relies and “the underlying scientific principles of an expert’s opinion.”⁵⁹ The defendant in Goddard appealed from a verdict finding that he was a sexually violent predator under Missouri’s Sexually Violent Predator Act.⁶⁰ At trial, the state’s expert, a psychiatrist, “testified [that] it was his opinion, [to] a reasonable degree of medical certainty,” that the defendant would be “more likely than not to engage in future predatory acts of sexual violence.”⁶¹ The expert based this opinion, in part, on two “actuarial instruments” that were derived from studies of sex offenders throughout the country.⁶² This testimony was admitted over the defendant’s objection. On appeal, the defendant argued that the expert’s opinion was inadmissible because the actuarial instruments were not “reasonably relied upon by experts in the field in forming opinions” as required by § 490.065.3.⁶³

The court rejected the defendant’s argument, holding that use of the actuarial instruments was governed by § 490.065.1 instead of § 490.065.3.⁶⁴ The court stated that § 490.065.3, by its explicit language, applies only to the “facts or data” that an expert relies on in the “particular case.”⁶⁵ The actuarial instruments, according to the court, were not “facts or data,” but “scientific evidence.”⁶⁶ Because it was the scientific validity of the instruments, rather than the underlying facts or data, that was being challenged, the court decided the case under § 490.065.1. This section is nearly identical to Federal Rule of Evidence 702. Accordingly, the court acknowledged that the Daubert standard applied, requiring scientific reliability of the principles underlying the expert testimony.⁶⁷

The court in Goddard made clear that a different standard applies when the underlying scientific principles, as opposed to the facts and data underlying an expert’s opinion, are challenged. The court was not as clear, however, in explaining the practical difference between “underlying principles” and the underlying facts or data. Instead, the court acknowledged that “the line distinguishing the two can be difficult to ascertain.”⁶⁸

C. Scott v. Blue Springs Ford Sales, Inc.

In Scott v. Blue Springs Ford Sales, Inc.,⁶⁹ the Western District Court of Appeals applied § 490.065.3 more broadly than the Southern District had in Goddard. The Scott court also expressed a more pro-admissibility interpretation of the statute than the Supreme Court seemed to sanction in McDonagh and McGuire.

In Scott, the plaintiff sued a car dealership that sold him a used truck after learning that the truck had a salvaged title and was not covered by a warranty as promised.⁷⁰ On appeal, the dealership argued that the trial court improperly admitted expert testimony regarding the safety of the salvaged vehicle.⁷¹ The expert’s testimony, according to the dealership, was not supported by the foundation required by § 490.065.3.⁷² The dealership based this argument solely on the fact that the expert had not performed certain “crashworthy testing” on the plaintiff’s vehicle, claiming that in the absence of such testing, the “facts and data” were not sufficient to render the opinion.⁷³

The court rejected this argument, holding that the facts and data were sufficient, under § 490.065.3, to allow the expert to draw his eventual conclusion.⁷⁴ In reaching its decision, the court noted that the statutory test contained two separate prongs: the facts or data must be (1) “reasonably relied upon by experts in the…field,” and (2) “otherwise reasonably reliable.”⁷⁵ Under the first prong, the court showed great deference to the expert. The court said: “As a general rule, questions concerning the first [prong] of reliability . . . ‘affect the weight, rather than the admissibility, of the opinion, and are properly left to the jury.’ It is only ‘when the source upon which the expert relies for his opinion is so slight as to be fundamentally unsupported, that the jury may not receive the opinion.’”⁷⁶

When compared to the Southern District’s decision in Goddard, the Scott decision appears to provide a much broader application of § 490.065.3. Scott applied the section in determining whether there were sufficient facts or data to support an expert’s underlying opinion.⁷⁷ It seems likely that the Goddard court would have applied § 490.065.1 to reach the same result.

It is also unclear whether, after McDonagh, the basis and sources of an expert’s opinion go primarily to the weight, rather than the admissibility, of the expert’s opinion. The McDonagh court did not appear to give the expert this level of deference. Under McDonagh and § 490.065, the expert opinion is either based on facts or data reasonably relied on by those in the relevant field or it is not. If the trial court, performing its gatekeeping function, determines that it is not, then the opinion is inadmissible. Therefore, it appears that under McDonagh the old “it goes to the weight and not the admissibility” argument often made in response to expert challenges is less persuasive.

III. The McDonagh Process – How to Properly Challenge an Expert in Missouri

After McDonagh, it is clear that § 490.065 governs the admissibility of expert testimony in Missouri civil cases. The average litigator, however, is just as concerned with the process for challenging an expert witness as he or she is with the governing standard. Unfortunately, the process in Missouri is not well-defined at this juncture. In each case, the attorney must make two important decisions: (1) decide what to challenge and (2) decide when to make the challenge.

A. What to Challenge

Section 490.065 offers Missouri trial lawyers a number of options for challenging experts.⁷⁸ The testimony of an expert witness can be challenged based on: (1) witness qualification, (2) assistance of the testimony to the trier of fact, (3) the reliability of the underlying scientific principles, (4) the requirement that the underlying facts or data must be “reasonably relied on by experts in the field,” and (5) the overall reliability, as determined by the trial court, of the facts or data presented.

1. Witness Qualification

While the issue of witness qualification was not extensively discussed in McDonagh, a brief discussion is merited here. Pre-McDonagh cases held that a witness is qualified as an expert as long as he or she has “some qualifications.”⁷⁹ According to the Scott court, the key question is whether the expert “possesses superior knowledge [regarding] a subject about which persons having no particular training are incapable of forming an accurate opinion.”⁸⁰ As noted above, however, it is unclear whether the Supreme Court, in McDonagh, intended for the old weight versus admissibility argument to persist. Certainly the basis and reasons for the opinion go to admissibility.

2. Assistance to the Trier of Fact

The question of whether expert testimony assists the trier of fact is closely connected to the question of expert qualification. An expert provides the requisite “assistance” when it is clear that the jurors are “not capable, for want of experience or knowledge of the subject, to draw correct conclusions from the facts proved.”⁸¹ Accordingly, Missouri courts have held that expert testimony should be excluded when the expert seeks to testify on subjects within the common knowledge of the general population.⁸² Expert testimony has also been excluded as “not helpful” when it invades the province of the jury.⁸³

3. Reliability of the Underlying Scientific Principles

According to the court in Goddard, attorneys may challenge the reliability of the underlying scientific principles relied upon by experts.⁸⁴ This type of challenge must be based on the “scientific evidence” requirement of § 490.065.1, not upon § 490.065.3.⁸⁵ If a party challenges an expert under this section, the federal Daubert standard is helpful.⁸⁶ While the Daubert “factors” have not been specifically adopted in Missouri, they are persuasive. Those factors are: (1) whether the expert’s technique or theory can be or has been tested, (2) whether the technique or theory has been subject “to peer review and publication,” (3) “the known or potential rate of error” of the technique or theory when applied, (4) “the existence and maintenance of standards” and controls, and (5) whether the technique or theory has been generally accepted in the scientific community.⁸⁷

4. Facts or Data Reasonably Relied On By Experts

As discussed at length above, expert testimony in Missouri can be successfully challenged if the facts or data upon which the testimony is based is not of a kind “reasonably relied upon by experts in the [relevant] field.”⁸⁸ As the Goddard decision demonstrates, it is difficult to distinguish between a challenge based on the underlying “facts or data” and a challenge to the “scientific principles [guiding] an expert’s opinion.”⁸⁹ When possible, it is certainly best to challenge expert testimony under both theories. Under the language of the statute, there is one significant distinction between them. If testimony is challenged based on its “underlying scientific principles” under § 490.065.1, the level of acceptance in the scientific community is but one factor among many.⁹⁰ If the facts or data underlying an expert opinion are challenged, however, whether experts in the field reasonably rely on those facts or data is dispositive.⁹¹

5. Otherwise Reasonably Reliable Facts or Data

Finally, Missouri lawyers can challenge expert testimony by arguing that the underlying facts or data are not “otherwise reasonably reliable,” as determined by the trial court.⁹² Arguably, this requirement provides the best argument for a challenge to the sufficiency of the facts or data relied on. This provision of the statute also provides a final opportunity to convince the court that facts and data should not be presented to the jury, even if “experts” in the field rely on them routinely.

B. When to Challenge

While there is no Missouri appellate court precedent as to when and how to challenge experts under McDonagh and § 490.065, federal court practice under Daubert provides guidance here. Two policies are particularly important. First, the timing of a federal Daubert challenge has tremendous consequences. Second, federal trial courts probably have the responsibility to perform their gatekeeping role under Daubert even in the absence of any challenge by the parties.

Federal courts have rather broad latitude in determining when parties must present Daubert challenges. There are, however, three main options: (1) a challenge shortly after the close of discovery, (2) a challenge shortly before trial, and (3) a challenge at trial. Each of these options has obvious advantages and disadvantages. In a case where the result of an expert challenge may have a direct impact on a summary judgment motion, an early challenge to expert admissibility is preferable, as both time and judicial resources can be saved.⁹³ Early expert challenges may also help speed up the settlement process, as an early ruling will provide litigants with a clearer picture as to what the admitted evidence will look like. There are some disadvantages to early expert challenges, however. Saving the challenges until closer to trial, or for the trial itself, may eliminate expert challenges in cases that settle despite the absence of a McDonagh hearing, and thus save judicial resources.⁹⁴ Resolving McDonagh challenges at trial will allow an expert to make only one appearance before the court, which will save the expert’s time and decrease the expert’s fee.⁹⁵

Even if an attorney fails to mount a Daubert reliability challenge, federal courts have held that the trial court must still determine whether the expert testimony is reliable.⁹⁶ While these federal court holdings are certainly not controlling in Missouri state courts, they are persuasive since they apply statutory language identical to that in § 490.065.1. As a result, Missouri trial courts at least arguably have a duty to evaluate expert reliability sua sponte.

Generally, however, Missouri practitioners should not rely on a court to make such a determination on its own. Instead, attorneys should generally aim to challenge the reliability of expert testimony as early as possible.⁹⁷ When a litigant waits until trial to make a complex challenge to a witness’s testimony, it is more difficult for the judge to fully examine the expert challenge on its merits.⁹⁸ Additionally, waiting until trial prevents resolution of the case through pre-trial motions for summary judgment in cases where expert testimony is required.

IV. Conclusion

It is clear that the Supreme Court of Missouri, in McDonagh, intended that § 490.065, RSMo, provide Missouri trial judges with a meaningful standard by which they can and should exercise their gatekeeper function regarding experts. Therefore, Missouri trial lawyers facing expert admissibility questions should not hesitate to challenge irrelevant or unreliable expert testimony under the statutory standard.

While no Missouri cases address the time for making such a challenge, or the specific mechanism for doing so, the federal court experience under Daubert provides guidance. In most cases, the optimal time for posing such a challenge is probably at the pretrial/motion in limine stage. And in most cases it does not appear necessary to have a full-blown evidentiary hearing. Of course, the ultimate resolution of these questions will depend on the specific facts of the case, and particularly on the preferences of the trial judge. Counsel anticipating such a challenge would be wise to confer with their trial judge on the issue as early as possible.

Footnotes

1 Michael D. Murphy is a member of Osburn, Hine, Kuntze, Yates & Murphy, L.L.C. in Cape Girardeau. He received his J.D. from the University of Missouri-Columbia in 1991, and is licensed to practice in Missouri, Texas, and Colorado. Ross D. McFerron is an associate at Osburn, Hine, Kuntze, Yates & Murphy, L.L.C. He received his J.D. from the University of Missouri-Columbia in 2007 and is licensed to practice in Missouri.

2 123 S.W.3d 146, 148 (Mo. banc 2003).

3 Section 490.065, RSMo 2005.

4 Id.

5 Fed. R. Evid. 702 provides:

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, if (1) the testimony is based upon sufficient 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.

Fed. R. Evid. 703 provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.

6 See McDonagh, 123 S.W.3d at 155 n.12.

7 These requirements were added to the language of Rule 702 in 2000 to provide greater detail as to how the trial court was to perform its “gatekeeping” role. McDonagh, 123 S.W.3d at 155 n.12.

8 McDonagh, 123 S.W.3d at 156.

9 Id.

10 Jaime M. Nies, Say Goodbye to Frye: Missouri Supreme Court Clarifies Standard for Admitting Expert Testimony in Civil and Administrative Cases, 69 Mo. L. Rev. 1203 (2004). The Missouri Court of Appeals-Western District applied the Frye test and § 490.065. Id. at 1207. The southern district “continued to follow Frye for scientific evidence but applied Section 490.065” to evidence that was not scientific. Id. at 1208. The eastern district continued to follow Frye. Id. at 1209.

11 The Frye standard was proper before the enactment of § 490.065. Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). Frye remains the proper standard for Missouri criminal cases. See Alsbach v. Bader, 700 S.W.2d 823, 828-30 (Mo. banc 1985). Under Frye, expert testimony was admissible if the basis of the expert’s opinion was “sufficiently established to have gained general acceptance in the particular field in which it belongs.” Id. State v. Daniels, 179 S.W.3d 273, 281 (Mo. App. W.D. 2005); State v. Keightley, 147 S.W.3d 179, 187 (Mo. App. S.D. 2004).

12 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1933); Long v. Mo. Delta Med. Ctr., 33 S.W.3d 629, 642-43 (Mo. App. S.D. 2000).

13 See McDonagh, 123 S.W.3d at 153.

14 Id. at 148, 151.

15 Id. at 151 n 4. Chelation therapy “involves the intravenous administration of a … solution containing” ethylenediaminetetraacetic acid (“EDTA”). Chelation theraphy proponents believe that “EDTA ‘chelates’ – or bonds – with substances that accumulate and block arteries, and, then, flushes these compounds from the body through urine.” Id.

16 Id at 151.

17 Id.

18 Id.

19 Id.

20 Id. at 152.

21 Id. at 157-58.

22 Id. at 149.

23 936 S.W.2d 797 (Mo. banc 1997).

24 See McDonagh, 123 S.W.3d at 153 n. 9.

25 Id. at 149.

26 Id. at 155-56.

27 Id. at 156.

28 Id. at 155.

29 Id.

30 Id.

31 This requirement differs from the standard under Fed. R. Evid. 703, where the relevant scientific field is only important if the underlying facts or data are not themselves admissible in evidence.

32 McDonagh at 156.

33 Id.

34 Id.

35 Id.

36 Id. at 156-57.

37 Id. at 157.

38 Id. (emphasis added).

39 Id. (emphasis added).

40 Id. at 160 (Wolff, J., concurring) (“Forget Frye. Forget Daubert. Read the statute.” Id.).

41 Scott v. Blue Springs Ford Sales, Inc., 215 S.W.3d 145, 176 (Mo. App. W.D. 2006).

42 See Jaime M. Nies, Note, Say Goodbye to Frye: Missouri Supreme Court Clarifies Standard for Admitting Expert Testimony in Civil and Administrative Cases, 69 Mo. L. Rev. 1203, 1212 (2004).

43 Section 490.065.3, RSMo 2005.

44 McDonagh, 123 S.W.3d at 155.

45 138 S.W.3d 718 (Mo. banc 2004).

46 Id. at 719.

47 Id.

48 Id.

49 Id. at 720.

50 Id. at 719.

51 Id. at 722. Somatization is defined as: “In psychiatry, the conversion of anxiety into physical symptoms.” The American Heritage Stedman’s Medical Dictionary 770 (Houghton Mifflin 2002).

52 138 S.W.3d at 722.

53 Id. at 721.

54 Id.

55 Id.

56 Id. at 722.

57 Id.

58 See Scott v. Blue Springs Ford Sales, Inc., 215 S.W.3d 145 (Mo. App. W.D. 2006) (“the test of § 490.065.3 is a two-fold reliability test.”). Id. at 176.

59 144 S.W.3d 848, 855 (Mo. App. S.D. 2004).

60 Id. at 848-849. The Sexually Violent Predator Act (SVPA) is found in §§ 632.480-632.513, RSMo. 2005. Proceedings under the SVPA are deemed civil, rather than criminal, in nature and are therefore governed by the standard for expert testimony set out in § 490.065, RSMo. 2005.

61 Goddard, 144 S.W.3d at 850.

62 Id.

63 Id. at 851.

64 Id. at 852.

65 Id.

66 Id.

67 Id. at 853

68 Id. at 855. The court explained that the expert’s use of prior conviction information in the actuarial instrument would have been subject to an objection for not meeting the requirements of § 490.065.3, rather than § 490.065.1, if the expert’s source of the prior conviction was not of a kind “reasonably relied on” by experts in the field (for example, if the expert would have learned of the prior offense from a stranger on the street rather than official court records). Id.

69 215 S.W.3d 145 (Mo. App. W.D. 2006).

70 Id. at 157-58.

71 Id. at 172.

72 Id.

73 Id. at 175.

74 Id. at 177.

75 Id. at 176.

76 Id. (citations omitted).

Although a trial court has the independent responsibility to decide if the foundational facts meet the minimum standards of reliability as a condition of the admissibility of the opinion, . . . it is only in those cases where the source upon which the expert relies for opinion is so slight as to be fundamentally unsupported, that the jury may not receive the opinion.

Id. (citations omitted).

77 The court’s analysis that the facts and data were “sufficient” appears to go beyond the usual “gatekeeping role” of the trial court. See, e.g. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) (holding that trial courts should focus “solely on principles and methodology, not on the conclusions they generate.” Id. at 580); McDonagh, 123 S.W.3d at 157 (“Nothing in section 490.065 suggests that the conclusions . . . must be in conformity with the general medical consensus or must be generally accepted.”).

78 See, e.g., Harvey Brown, Eight Gates for Expert Witnesses, 36 Hous. L. Rev. 743 (1999), for an outstanding law review article in which Judge Harvey Brown, Jr., a Texas trial judge, uses eight “gates” of admissibility to evaluate expert witness testimony under Texas law.

79 Donjon v. Black & Decker (U.S.), Inc., 825 S.W.2d 31, 32-33 (Mo. App. E.D. 1992).

80 Scott, 215 S.W.3d at 174 (holding that an expert may testify as to the danger of defective automobile repairs even though he is not an engineer because he has “some qualifications as to the issue in question”). The court held that “[t]he fact that [the expert] was not an engineer [went] to the weight,” rather than the admissibility, of his testimony. Id. at 175.

81 State v. Sloan, 912 S.W.2d 592, 596 (Mo. App. E.D. 1995).

82 Stucker v. Chitwood, 841 S.W.2d 816, 818 (Mo. App. S.D. 1992); see also Van Meter v. Dahlsten Truck Line, Inc., 943 S.W.2d 680, 682 (Mo. App. W.D. 1997) (what a driver should have been “able to see with his mirrors” is not “specialized or removed from the scope of common knowledge” and therefore expert testimony was unnecessary); Collins v. Trammell, 911 S.W.2d 635, 638 (Mo. App. E.D. 1995) (“value of [towing] services [is] a matter of common knowledge” “trier of fact [can] determine without the aid of [an] expert”).

83 See e.g., State v. Davis, 32 S.W.3d 603, 698 (Mo. App. E.D. 2000) (expert testimony on witness credibility encroaches on the province of the jury).

84 Goddard, 144 S.W.3d at 852.

85 Id.

86 McDonagh, 123 S.W.3d at 155. It should be noted that Fed. R. Evid. 702 (on which Daubert is based) was amended in 2000. The following requirements for admissibility were added: “(1) the testimony [must be] based upon sufficient facts or data, (2) the testimony [must be] the product of reliable principles and methods, and (3) the witness [must apply] the principles and methods reliably to… the case.” Fed. R. Evid. 702 (2000). Whether these requirements affect the interpretation of § 490.065.1, which mirrors the pre-amendment language of Fed. R. Evid. 702, remains to be seen.

87 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993).

88 Section 490.065.3, RSMo.

89 Goddard, 144 S.W.3d at 851-55. The former is governed by § 490.065.3 while the latter is governed by § 490.065.1.

90 Id. at 855. See Daubert, 509 U.S. at 594 (‘“[G]eneral acceptance’ can yet have a bearing on the inquiry.”).

91 Section 490.065.3, RSMo.

92 Id.

93 See Celotex Corp. v. Catrett, 477 U.S. 317, 320 (1986); American Int’l Adjustment Co. v. Galvin, 86 F.3d 1455, 1464 (7th Cir. 1996) (Posner, C.J., dissenting).

94 See David F. Herr, Annotated Manual for Complex Litigation § 23.352 (4th ed. 2006).

95 See id.

96 See Daubert, 509 U.S. at 592-93. (Before admitting expert testimony the judge must make a “preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid”).

97 The authors recognize that in many instances it is not possible to resolve expert witness issues prior to trial.

98 This is not only because the inquiry can be complicated, but also due to the demands of a trial.