Weighing Daubert Admissibility Factors Under FRE 702

In trial for aggravated sexual abuse of a child, FRE 702 admissibility did not rank a witness' "academic training over demonstrated practical experience," admitting expert testimony under FRE 702 on the emotional and behavioral characteristics of sexually abused children; despite his lack of formal training on this issue, the witness qualified as an expert because he "regularly examine[d] and evaluate[d] sexually abused children" as a board-certified pediatrician and medical director of a child abuse center; in United States v. Roach, __ F.3d __ (8th Cir. July 14, 2011) (No. 11–1132)

The reception of FRE 702 expert testimony depends upon an assessment of two basic issues: First - is the witness sufficiently experienced to opine as an expert, and second - if the witness qualified, is the witness' testimony entitled to any weight? These dual questions pre-date the establishment of the admissibility standards outlined by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See, e.g., United States v. Baker, 553 F.2d 1013, 1024 (6th Cir. 1977) (noting that expert witness need not be an “outstanding practitioner” in the field of his purported expertise, so that witness's testimony on fingerprints should not be excluded simply based on the witness's experience of a training course and several years work for public agencies in fingerprint analysis). In a recent case, the Eighth Circuit succinctly reiterated this same proposition.

In defendant's appeal of his conviction of aggravated sexual abuse of a child, he raised only one issue. According to the Eighth Circuit, defendant "Roach's sole issue on appeal is that the district court abused its discretion when it allowed Dr. Edward Mailloux to describe to the jury the emotional and behavioral characteristics often observed in sexually abused children." Roach, __ F.3d at __. According to the defendant, the court's action in allowing a prosecution witness to testify as an expert was unfounded. He argued that "Dr. Mailloux was not qualified to testify about the emotional and behavioral characteristics of sexually abused children because he lacked formal education or training in child psychology and child psychiatry" as illustrated by the fact that the witness's knowledge of “child abuse pediatrics” was derived solely from on-the-job observations and attendance at conferences and seminars.

This limited and remarkably focused assertion by the defendant was rejected by the circuit, which noted that the defendant:

[A]rgues that the government failed to establish a proper foundation at trial to support the reliability of Dr. Mailloux’s testimony. We find Roach’s arguments to be without merit. Rule 702 does not rank academic training over demonstrated practical experience. United States v. Anderson, 446 F.3d 870, 875 (8th Cir. 2006); Fox v. Dannenberg, 906 F.2d 1253, 1256 (8th Cir. 1990). Dr. Mailloux is a board-certified pediatrician who has served as Medical Director for Child’s Voice, a child abuse evaluation center in Sioux Falls, South Dakota, since 2003. He has regularly examined and evaluated sexually abused children over the past seven years. At trial, Dr. Mailloux testified that in 2010 alone, he personally examined approximately 200 children following allegations of sexual abuse. We conclude there was a sufficient basis for the district court’s conclusion that Dr. Mailloux was qualified to testify about the general characteristics of sexually abused children.
Roach, __ F.3d at __.

Federal Rules of Evidence