*Assigns to the trial court a gatekeeping function of ensuring that an expert witness= testimony both rests on a reliable foundation and is relevant to the task at hand.  Knowledge admissible under this rule must connote more than a subjective belief or unsupported speculation.

(b) Expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable.

*No specific "test" or "set of prongs" which must be considered by the Court to satisfy this requirement.  Indiana Courts may consider the five factors set forth in Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993).  Such factors include:
1.  Whether the theory or technique at issue can be and has been tested;
2.  Whether the theory or technique has been subjected to peer review and publication;
3.  The known or potential rate of error;
4.  The existence and maintenance of standards controlling the technique's operation; and,
5. Whether the Technique is generally accepted within the relevant scientific community.
The Daubert factors are not binding on the determination of issues under 702, but their utility is recognized by Indiana Courts.

*Focus on principles and methodology, not on conclusions.
*Opinion can not be based on mere coincidence.

Adopted effective Jan. 1, 1994.

Rule 703. Bases of Opinion Testimony by Experts

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. Experts may testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the field.

Adopted effective Jan. 1, 1994.

Rule 704. Opinion on Ultimate Issue

(a) Testimony in the form of an opinion or inference otherwise admissible is not objectionable merely because it embraces an ultimate issue to be decided by the trier of fact.
(b) Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.

Adopted effective Jan. 1, 1994.

Rule 705. Disclosure of Facts or Data Underlying Expert Opinion

The expert may testify in terms of opinion or inference and give reasons therefore without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

Adopted effective Jan. 1, 1994.

The United States Supreme Court issued its ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc., that was intended to "liberal[ize]" federal evidence practices and abolish the requirement that expert opinion must represent consensus views. It was anticipated that Daubert would reduce the frequency and intensity of judicial scrutiny of expert opinions.  In reality, it has had the opposite effect in Federal Court.

Trial lawyers throughout Indiana have carefully watched how the Indiana Supreme Court would respond to Daubert.  Thankfully, for both the plaintiff and defense bar the Indiana Supreme Court has taken a common sense approach to the admissibility of expert testimony, and has recognized that Daubert was intended to liberalize the rules concerning the admissibility of expert testimony.

 The Indiana Supreme Court has held that it is not bound to follow the Daubert approach, and recognized that Daubert was intended to liberalize the rules concerning the admissibility of expert testimony.  Further, unlike the approach that is often utilized in the federal courts, the Indiana Supreme Court has made it clear that it does not want Indiana trial judges to over-analyze every aspect of an expert=s testimony in making the initial admissibility determination.  The Court has recognized that it is the function of the jury in our system of justice that is empowered to determine the weight to be given to the testimony of all witnesses, including expert witnesses.

The nature and extent of the evidence that must be submitted to and Indiana trial court to satisfy the reliability analysis of Rule 702 depends on the nature of the testimony in question. Thus, the Indiana Supreme Court in McGrew v. State, 682 N.E.2d 1289 (Ind. 1997), decided that the complexity of the scientific principles underlying the subject matter of the expert testimony would determine the complexity of the foundation necessary to support the admissibility of the testimony.  The Court held that:
Inherent in any reliability analysis is the understanding that, as the scientific principles become more advanced and complex, the foundation required to establish reliability will necessarily become more advanced and complex as well.  The converse is just as applicable, as demonstrated by the trial court=s conclusion that "what we're talking about is not the traditional scientific evaluation.  We are talking about simply a person's observations under a microscope."

In its' decision in Sears Roebuck & Co. v. Manuilov, 742 N.E.2d 453 (Ind. 2000), the Indiana Supreme Court made it clear that it was not going to require the trial court to conduct "mini-trials" in making the reliability analysis under Rule 702.  Further, the Court emphasized that the general principles and general methodologies underlying the expert's testimony where to be examined, as opposed to an examination of every aspect of the expert's testimony.  Specifically, the Court cautioned trial courts in Indiana to not attempt to micro-manage the admissibility of expert testimony so as to eliminate the vital role assigned to the jury to ultimately determine the weight that any testimony will be accorded.

  In Sears, the testimony of two physicians was challenged at trial as unreliable and therefore inadmissable.  The physicians expressed the opinion that the plaintiff suffered from symptoms of post-concussion syndrome which adversely affected his ability to return to his former employment.  The defendant challenged this testimony on various grounds, including the allegation that the testimony was not scientifically reliable.  The trial court overruled the defendant's objections and the testimony was admitted at trial. 

On appeal, the Indiana Court of Appeals examined in great detail the testimony of each of the physician experts, and ruled that the testimony was not reliable under 702(b) and thus should not have been admitted into evidence by the trial court.  Sears Roebuck & Co. v. Manuilov, 715 N.E.2d 968 (Ind. Ct. App. 1999).  Further, the Indiana Court of Appeals encouraged trial courts to hold separate pre-trial Daubert hearings whenever a 702(b) challenge was made to expert testimony.  Id. at 993, n.20.  The scope of such a hearing would have required the party offering the expert testimony to bring his expert to the hearing and engage in a mini-trial in virtually every case.

The Indiana Supreme Court reversed the Court of Appeals decision in Sears and at the outset of its discussion concerning the admissibility of expert testimony implicitly rejected the suggestion by the Court of Appeals that trial courts should routinely conduct separate Daubert hearings before trial.  "In adopting evidence rule 702, this court did not intend to interpose an unnecessarily burdensome procedure or methodology for trial courts.  Sears Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 460 (Ind. 2001).

The Supreme Court next observed that the adoption of Rule 702 "reflected an intent to liberalize, rather than to constrict, the admission of reliable scientific evidence."  Id.  Further, the court reemphasized its earlier decisions that although potentially helpful, Federal Court opinions interpreting Daubert are not binding on Indiana Courts in deciding evidentiary issues.  Id. at n.5

In the most critical passage in the opinion, the Indiana Supreme Court instructed trial courts to consider the general principles and general methodology underlying the reliability of an expert=s testimony, leaving the accuracy, consistency, and credibility of the testimony to be determined by the trier of fact after testimony has been subjected to the adversarial process at trial.  If applied to separately evaluate every subsidiary point made during the testimony of a qualified expert regarding matters based on reliable science, Rule 702(b) can become excessively burdensome to the fair and efficient administration of justice.  It directs the trial court to consider the underlying reliability of the general principles involved in the subject matter of the testimony, but does not require the trial court to reevaluate and micro manage each subsidiary element of an expert's testimony within the subject.   Once the trial court is satisfied that the expert=s testimony will assist the trier of fact and that the expert's general methodology is based on reliable scientific principles, then the accuracy, consistency, and credibility of the expert=s opinions may properly be left to vigorous cross-examination, presentation of contrary evidence, argument of counsel, and resolution by the trier of fact.  Id. at 461.

Applying these principles to the physician=s testimony at trial, the Court held that the trial court did not abuse its discretion in admitting the testimony.  Likewise, the Court rejected the argument that the doctor's testimony about the affects of post-concussion syndrome on plaintiff's ability to return to work as a high-wire circus performer was unreliable.  Emphasizing the lack of complexity in the doctor's testimony in this regard, the Court stated as follows:
The doctor's testimony that the severe blow to the head from the plaintiff's fall resulting in continuing dizziness and headaches and preventing him from returning to his career as high-wire performer is not a matter necessarily restricted to the province of a vocational expert knowledgeable about the requirements of circus high-wire artistry.  That dizziness would substantially affect the plaintiff=s capacity to perform on the high-wire is a matter of common sense, and does not require  vocational expertise.
Id. at 461.

Following Sears, the Appellate Court in Pinkins v. State, 799 N.E.2d 1079, 1087 (Ind. Ct. App. 2003), summarized Sears into a two part test holding that:

Specifically, we note that for a witness to be qualified as an expert, two requirements must be met.  First, the subject matter must be distinctly related to some scientific field, business or profession beyond the knowledge of the average person.  Second, the witness must have sufficient skill, knowledge, or experience in that area so that th opinion will aid the trier of fact.

In Indiana, there are various combinations of characteristics of knowledge, skill, experience, training or education that an expert witness may possess that will be deemed sufficient to allow his testimony to be admissible.  An example of this can be found in Vaughn v. Daniels Company (West Virginia) Inc.,777 N.E.2d 1110, 1122 (Ind. Ct. App. 2002).  The Appellate Court in Vaughn held that:
Knowledge may be acquired through hands-on experience, formal education, specialized training, study of textbooks, performing experiments, and observation.  Id. (citing 13 W. MILLER, INDIANA PRACTICE ' 702.103 at 35-37 (1984)).  Contrary to Daniel's contentions, it was not necessary for MacCollum to have seen the sump in person for him to render an expert opinion in this case.  Also, any question as to his experience with coal plants would go to the weight and credibility of his opinions, not their admissibility.
Id. at p. 1121. (Emphasis Added).  The holding in Vaughn has been followed in Messer v. Cerestar USA, Inc., 803 N.E.2d 1240, 1248 (Ind. Ct. App. 2004).  The Court held that:
Evidence Rule 702 does not require that an individual have received formal education in a certain field before that person may be considered an expert, and we will not read such requirement into the rule.  Instead, Evidence Rule 702 acknowledges that one may acquire the requisite knowledge through means other than formal education.  From the information available to this court, we see that Puchalski has spent fourteen years as a construction safety supervisor for the Illinois Toll Authority, worked four years as a consulting safety engineer, owned his own construction safety consulting business, and investigated jobsite accidents.  This information is sufficient to permit the reasonable conclusion that Puchalski is an expert in worksite safety issues and accident investigation.

The Indiana Supreme Court allowed a nurse to testify that an Alzheimer=s patient was incompetent in Creasy v. Rusk, 730 N.E.2d 659, 669 (Ind. 2000).  The Court held in that case that:
Ayers=s affidavit states that she is a licensed practical nurse, which presumes that she received the medical training necessary to obtain that license.  The affidavit also verifies that Ayres had worked for the nursing home for nine years at the time Creasy was injured B the entire time Rusk had lived there.  Ayers=s certification, associated training, practical experience gained through working for the nursing home for nine years, and three years of working with Rusk qualified her as an expert for purposes of assessing Rusk=s mental state and rendering an opinion.

                                  When does expert testimony become "scientific"?

Indiana Evidence Rule 702(b) requires the court to ensure that the principles upon which the expert bases his opinion is reliable if the testimony is Ascientific@.  Unfortunately, the rule does not address when the testimony is Ascientific@ and when it is merely technical or some other form of specialized knowledge.  Justice Breyer in Kumho recognized this difficulty in differentiating between scientific testimony and other forms of expert testimony.  He wrote in Kumho that:
It would prove difficult, if not impossible, for judges to administer evidentiary rules under which a gatekeeping obligation depended upon a distinction between "scientific" knowledge and "technical" or "other specialized" knowledge.  There is no clear line that divides the one from the others.  Disciplines such as engineering rest upon scientific knowledge.  Pure scientific theory itself may depend for its development upon observation and properly engineered machines.  And conceptual efforts to distinguish the two are unlikely to produce clear legal lines capable of application in particular cases.
Kumho, 119 S.Ct. at 1174.

A Court of Appeals decision, Lytle v. Ford Motor Company, 814 N.E.2d 301, 309 (Ind. Ct. App. 2004), illustrates the difficulty in determining what is "scientific" for purposes of Rule 702(b) and what is not. The Lytle case involved a catastrophic injury caused when the plaintiff was thrown from a 1987 Ford Ranger pick-up truck.  The evidence assumed by the trial court was that the plaintiff was wearing her seat belt prior to the collision.  After the collision, the plaintiff was found outside the pick-up truck.  The plaintiff presented two experts with extensive backgrounds in automotive engineering. 

Lytle's first expert, Thomas Horton, had several years of experience, in industry, designing and testing seat belts systems.  Horton's opinions were based upon "(1) his examination of the vehicle and seatbelt assemblies, including the placement and photograph of two people in an exemplar vehicle in 2003, and (2) his uninstrumented hand manipulations of two exemplar assemblies, unattached to any vehicle, and without passenger load or any web tension whatsoever."  Id at 313.  The court noted that Horton could not replicate the forces that were involved in the roll over and that he "had performed no testing to support his theory that a longer center buckle stalk was a safer alternative design, and he had not done any testing and had no support for his opinion that the other buckle was a safer alternative design."  Id.  As such, the court held that:
In light of such a significant analytical gap between Horton=s data and his conclusions, his testimony was unreliable as a matter of law, and we must conclude that the trial court properly excluded his testimony.
Id.

Lytles other expert, Dr. Khadilkar, was a Ph.D. in automotive engineering who performed testing for the National Highway Traffic Safety Administration (NHTSA).  Dr. Khadilkar's "testimony regarding inadvertent unlatch was based primarily on observation and analysis of the geometry of the restraint system and its alternatives."  Id.  The court held that:
Dr. Khadilkar never documented the amount of depression that was necessary to release the seatbelt buckle in the accident. . . . [He] did not perform any research, and did not identify any literature in support of his theory. . . . Dr. Khadilkar engaged in less than ten minutes of "testing" to reach his opinion: he placed a buckle against a table in his office and "eyeballed" the depression necessary to release the latchplate. . . . [He] made [no] effort to measure the force, web tension, direction or rotation that would occur in this type of accident. . . . [He failed to show] that the seatbelt assemblies moved toward one another, moved with any particular force or load, twisted into position, or that any other object contacted the passenger=s button at all. . . [nor showed the] sufficient force, direction, duration, rotation, and load conditions to release the buckle.  As with Horton's testimony, we are compelled to conclude that the trial court properly excluded Dr. Khadilkar's testimony.
Id. at 314.

The plaintiff in Lytle argued that her experts= opinion that the seat belt was defective was based upon her experts' skilled observations, common sense, knowledge and experience and did not require a determination of reliability because the testimony was not "scientific".  Lytle relied on Malinski v. State, 794 N.E.2d 1071, 1084 (Ind. 2003), and PSI Energy, Inc. v. Home Insur. Co., 801 N.E.2d 705, 740-41 (Ind. Ct. App. 2004), for the assertion that plaintiff=s experts were not giving Ascientific@ testimony.
In Malinski v. State, 794 N.E.2d 1071, 1085-86 (Ind. 2003), the court held that:
The evidence before us does not appear to be a matter of "scientific principles" governed by Evidence Rule 702(b).  Rather, it is more a "matter of the observations of persons with specialized knowledge" than "a matter of scientific principles' governed by Indiana Evidence Rule 702(b)," . . . As a four-year veteran forensic pathologist, Dr Prahlow was qualified to make such observations.  Doctors often testify about the injuries depicted in photographs even though they were not present when the pictures were taken and did not personally examine the injuries depicted. . . . Dr. Prahlow's testimony regarding Lori's state falls into the area of specialized knowledge of anatomy and physiology.  Such area of specialized knowledge was within the scope of expertise and beyond the knowledge generally held by lay observers.  Prahlow's expertise in examining and evaluating wound, such as those depicted in the photos, was undoubtedly an aid to the jury.

In PSI Energy, Inc. v. Home Ins. Co., 801 N.E.2d 705, 741 (Ind. Ct. App. 2004), the court found that: