Cases at the Armed Services Board of Contract Appeals often require scientific or other technical evidence that is best explained by an expert witness. Though it conducts no jury trials and the rules do not expressly require it, the board generally considers itself the gatekeeper of junk scientific evidence. The board regularly considers motions challenging the admissibility of expert testimony. It also regularly grants them.
In the appropriate case, a pretrial motion to exclude an expert’s testimony can be an effective tool. Here we address the most common grounds for challenges to expert testimony at the ASBCA.
Expert testimony must be reliable.
The basic test for the admissibility of expert testimony in federal courts is set forth in Rule 702 of the Federal Rules of Evidence, which codifies the Supreme Court’s decisions in Daubert v. Merell Dow Pharmaceuticals, 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Under Rule 702, expert testimony must not only be helpful, it must be based on sufficient facts or data, and be the product of reliable principles and methods.
Parties in litigation at the ASBCA are not exempt from the reliability requirement. The board frequently refers to the standards set forth in Rule 702 as a prerequisite to the consideration of expert testimony. Even without a jury, the board will exclude expert testimony that the board finds unreliable. Board rules are generally more flexible than the federal rules when it comes to the admissibility of evidence, but an expert’s opinion must be sufficiently reliable for the board to consider it. Universal Yacht Services, Inc., ASBCA No. 53951, 04-2 BCA ¶ 32648 (May 24, 2004) [pdf].