Expert Testimony and the Quest for Reliability: The Case for a Methodology Questionnaire
Although Daubert and Kumho Tire provide some guidance regarding how judges should evaluate expert testimony for reliability, they leave too much to the discretion of the judge. Under the present system, the reliability determination remains highly dependent on the judge’s own views of what is methodologically important—an opinion that may be no more qualified than the opinion of the common juror. Consequently, Marta Chlistunoff argues that Daubert and other procedural tools currently available to judges alone fail to adequately test the reliability of expert testimony because they do not direct judges’ focus to an expert’s methodology—or at least not the correct aspects of that methodology—and fail to ensure that the judge has adequate information to accurately assess reliability. This Note instead contends that the legal community should adopt a mandatory disclosure list—a “methodology questionnaire”—which would highlight potential areas of concern and subjectivity in the subject expert’s methodology. This methodology questionnaire would serve to supplement mechanisms currently in place and to maximize the likelihood that judges and juries would be able to scrutinize expert testimony without being unduly swayed by the “expert” label or by the complicated nature of the testimony at issue.