¶1concurring.
¶2Although I agree with the opinion in most respects and concur in the result, I disagree with its discussion of Daubert and Kumho Tire in Part IV.C.2. Specifically, the opinion seems to misunderstand how Daubert and Kumho would apply in this case. In my view, the superior court’s evidentiary rulings can easily be sustained as correct applications of Daubert and Kumho. The opinion’s categorical refusal to extend these cases to experience-based expert testimony is unnecessary, overbroad, and unsound.
¶3In'the court’s view, Daubert and Kumho need to be rejected if we wish to sustain the superior court’s ruling because, “[ujnder federal law, the manner in which the trial court admitted the testimony of Stirling and Dr. Rubenstein was probably erroneous,”
¶4But while the amicus brief in Kumho opened by broadly questioning the utility of extending Daubert to experience-based expertise,
But Daubert should not be extended to require the exclusion of all opinions drawing on any aspect of scientific or technical knowledge that in some measure involves the use of subjective judgment based on an expert’s experience. Such an expansion of Daubert would be inconsistent with Rule *1015702’s explicit acknowledgment of “experience” as a basis for expertise....
Nor is petitioners’ expansive reading of Daubert grounded in reality. In our everyday lives, we often obtain assistance from persons who, because of their past experience, have specialized knowledge and are able to reach reliable conclusions based on that experience. When such a person appears in court as an expert, the pertinent question should be whether, in light of such past experience, his or her opinions can assist the trier of fact — -not whether they have been validated by the factors set forth in Daubert bearing on the validity of an application of the scientific method. As Daubert emphasized, the inquiry under Rule 702 must be flexible. No bright-line test is feasible, because the circumstances under which an expert’s opinion can be deemed reliable depend on the specific field of expertise in question, and on the particular issue in dispute.[5 ]
¶5As the underscored wording shows, the amicus briefs basic position was not that Daubert should never apply to experience-based expert testimony, but that Daubert should not always control, and automatically exclude, such testimony.
¶6In keeping with this position, the amicus brief devoted most of its discussion to two practical points. In the first section of discussion, it argued that Daubert should be applied flexibly through the exercise of ease-by-case discretion by trial courts, with the four Daubert factors being treated as permissive and non-exclusive.
¶7In unanimously holding that Daubert applies to experience-based expert testimony, the United States Supreme Court’s opinion in Kumho carefully addressed the concerns raised in Professor Saltzburg’s amicus brief; though ruling against the result the petitioners favored, the Court favorably viewed most if not all of the specific points that the amici pressed.
¶8Kumho repeatedly emphasized that the Daubert test is a flexible one and draws no bright-line requirements; the opinion stressed that Daubert vests trial courts with broad discretion to use or ignore its four-factor analysis, depending on whether the court finds it helpful in deciding the specific issue at hand.
¶9At its core, then, Kumho views Daubert as a flexible, fact-specific, and non-exclusive approach that invites, rather than restricts, trial court discretion:
The conclusion, in our view, is that we can neither rule out, nor rule in, for all cases and for all time the applicability of the factors mentioned in Daubert, nor can we now do so for subsets of cases categorized by category of expert or by kind of evidence. Too much depends upon the particular circumstances of the particular case atissue.[11 ]
¶10This flexible and individualized reading of Daubert answers almost every practical concern raised in the Kumho amicus brief. Of course, as today’s opinion notes, Kumho did not end the debate over Daubert; some commentators and a handful of cases continue to criticize Daubert and Kumho.
¶11Given the flexible nature of Kumho’s holding, a sufficient answer to the Daubert questions raised here is that the superior court properly applied the broad discretion given to it by Kumho in declining to require objective verification of the experience-based testimony offered by Stirling and Dr. Rubenstein. Both witnesses had abundant experience in long-recognized, widely practiced, and thoroughly vetted disciplines. To the extent that they proposed to testify on matters beyond their particular expertise, the superior court appropriately limited the scope of their testimony. And although Marrón purported to challenge their basic methodologies, her supporting pleadings suggested only that their opinions at most might reflect incorrect applications of accepted principles in reliable fields of specialized knowledge. The superi- or court correctly recognized this kind of alleged inaccuracy as garden variety impeachment for cross-examination, so the -record suggests no abuse of the broad range of trial court discretion granted by Kumho. I would dispose of this case on these narrower grounds.
¶12Instead, today’s opinion goes out of its way to disclaim Kumho’s useful elaboration of Daubert. While professing to constrain its ruling “to the situation before us,” the opinion expansively describes “the situation” as encompassing all cases involving “the admission of expert testimony based on accrued wisdom and personal experience.”
¶13In my view, the opinion’s bright-line rejection of Daubert and Kumho is needless, and *1017it is sure to stir more trouble than it settles.
¶14. Op. at 1007.
¶15. Id. at 1004.
¶16. Id. at 1005 n. 50, 1006-07. The amicus brief was filed jointly by three law school professors: Margaret A. Berger; Edward J. Imwinkelried, and Stephen A. Saltzburg. See 1998 WL 739321 (U.S.).
¶17. Kumho, Amicus Brief at 2.
¶18. Kumho, Amicus Brief at *2-3 (emphasis added).
¶19. See, e.g., id. at *18-19 (emphasis added) (internal footnotes omitted):
Our point is there is an enormous range of scientific and technical fields in which experts apply their own personal experience and that of their colleagues in assessing case-specific facts, and reaching a somewhat subjective conclusion. Rule 702 still requires the trial court to determine that the witness’ “specialized knowledge will assist the trier of fact." But experience-based knowledge should not be automatically inadmissible because it cannot be verified by an objective test. The Eleventh Circuit was correct in ruling that such testimony "falls outside the scope of Daubert,” at least in the sense that its admissibility should not be gauged solely in terms of the four factors mentioned in Daubert.
¶20. See, e.g., id. at *24:
Common sense suggests that if an opponent has produced not a single expert prepared to testify that the testimony of the targeted expert is methodologically flawed, the district court should not be required to engage in Rule 104(a) factfinding, and should be permitted to deny the motion outright....
Where an opponent does file a motion in limine,, supported by proper record materials demonstrating one or more flaws that appear to undermine the reliability of the targeted expert's testimony, then a district court should act with equal dispatch in granting the motion unless the proponent comes forward[.]
¶21. Kumho, 526 U.S. at 149-50, 119 S.Ct. 1167.
¶23. Id. at 149, 119 S.Ct. 1167.
¶24. Id. at 150, 119 S.Ct. 1167.
¶25. Op. at 1005 n. 50.
¶26. Cf. Watson v. Inco Alloys Int'l, Inc., 209 W.Va. 234, 545 S.E.2d 294, 301 n. 11 (2001) (asserting that "it is the restrictive interpretation of Kumho anticipated by some commentators that is causing confusion” (emphasis added)).
¶27. Notably, as a justification for departing from the trial court’s more conventional rationale for its ruling, which accepted Daubert and Kumhoas applicable law, the opinion approvingly cites commentator Derek Mogck for the proposition that “Daubert's requirements can also be easily exploited by litigants, leading to mini-trials, a prolonged discovery process, and prohibitive costs to both parties and the court.” Op. at 1006 & n. 58 (citing Derek L. Mogck, Are We There Yet?: Redefining the Test for Expert Testimony Through Daubert, Kuhmo Tire and Proposed Federal Rule of Evidence 702, 33 Conn L.Rev. 303, 315-18). Yet one would be hard pressed to find support for this proposition in Judge Morse’s ruling here, which easily avoided being "exploited”: The judge properly recognized that no lengthy Daubert/Kumho hearing was required on the issue; and he correctly parsed the admissible portions of the expert testimony from the excludable ones without conducting "a mini-trial" on admissibility.
¶28. The opinion suggests that, as applied to experience-based testimony, Daubert's gatekeeping approach is needless because other evidence rules, including rules dealing with admission of non-expert testimony, are sufficient to protect against inadmissible expert testimony. Op. at 1007-08. But in contrast to fact witnesses, experts testify without any first-hand knowledge of a specific case. To do so, they must satisfy the trial court, as a threshold matter, that they are "qualified” to give expert opinions and that the expertise they offer will "assist the trier of fact.” Alaska R. Evid. 702(a). Because the court screens and accepts experts according to these criteria before allowing them to state their opinions, jurors naturally see experts as special witnesses who testify with the court's seal of approval, both as to their qualifications and their ability to be of assistance. These unique attributes counsel against treating expert and lay witnesses alike and put a premium on ensuring that courts
¶29.Op. at 1008. *1017get it right when they approve experts as qualified and capable of assisting the jury. Regardless of whether the expert's testimony purports to draw on experience or scientific training, how can a court go about deciding if the testimony can actually assist the trier of fact, Alaska Evidence Rule 702, or if its probative value will outweigh its prejudicial impact, Alaska Evidence Rule 403, if the basis of the expert’s opinion falls outside the common experience of the court and the jury and cannot be explained in understandable terms? Contraiy to the Kumhoamicus brief’s suggestions, Rule 703's "general acceptance” test by itself is hardly a satisfactory standard in these situations, since it' enables any circle of self-proclaimed experts to establish its own reliability by self-referentially declaring its expertise to be "of a type reasonably relied upon by experts in the particular field.” Op. at 1007 (quoting Alaska R. Evid. 703).