DAUBERT TEST
In 1993, the U.S. Supreme Court handed down
the seminal decision of Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786,
125 L.Ed.2d 469, (U.S. Jun 28, 1993) (NO. 92-
102). The case involved the admissibility of
novel SCIENTIFIC EVIDENCE. But to begin to
understand the significance of Daubert, one
needs to view the case in its wider context, going
back 70 years to Frye v. United States, 293 F. 1013
(D.C. Cir. 1923).
Frye involved the admissibility of opinion
evidence based upon the use of an early version
of the POLYGRAPH. The D.C. Circuit Court held
that scientific evidence was admissible if it was
based on a scientific technique generally
accepted as reliable in the scientific community.
Thus, EXPERT TESTIMONY was admitted based
on the expert’s credentials, experience, skill, and
reputation. The theory was that deficiencies or
flaws in the expert’s conclusions would be
exposed through cross-examination. This decision
became known as the Frye test or the
general-acceptance test. By the 1990s, the Frye
test had become the majority view in federal and
state courts for the admissibility of new or
unusual scientific evidence, even in view of Federal
Rule of Evidence 702, passed in 1975, which
some courts believed to provide a more flexible
test for admissibility of opinion testimony by
expert witnesses.
Then, in Daubert v.Merrell Dow Pharmaceuticals,
Inc., the U.S. Supreme Court changed the
standard for admissibility of expert testimony.
Under Daubert, a trial judge has a duty to scrutinize
evidence more rigorously to determine
whether it meets the requirements of Federal
Rule of Evidence 702. This rule states, “If scientific,
technical, or other specialized knowledge
will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience,
training, or education, may testify
thereto in the form of an opinion or otherwise,
if (1) the testimony is based upon sufficient facts
or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness
has applied the principles and methods reliably
to the facts of the case.”
In Daubert, the Court stated that evidence
based on innovative or unusual scientific knowledge
may be admitted only after it has been
established that the evidence is reliable and scientifically
valid. The Court also imposed a gatekeeping
function on trial judges by charging
them with preventing “junk science” from entering
the courtroom as evidence. To that end,
Daubert outlined four considerations: testing,
peer review, error rates, and acceptability in the
relevant scientific community. These four tests
for reliability are known as the Daubert factors
or the Daubert test.
In 1999, the U.S. Supreme Court significantly
broadened that test and the trial court’s
gatekeeping role to include expert testimony
based on technical and other specialized knowledge.
Kumho Tire Co., Ltd. v. Carmichael, 526
U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (U.S.
Mar 23, 1999) (NO. 97-1709). In Kumho, the
Court held that the gatekeeping obligation
imposed upon trial judges by Daubert applies to
scientific testimony as well as to expert opinion
testimony. In order to meet its gatekeeping obligation,
a trial court may use the criteria identified
in Daubert only when they can be applied to
determine the reliability of either the underlying
scientific technique or the expert’s conclusions.
But inasmuch as the Daubert gatekeeping function
is meant to be a flexible one, it must necessarily
be tied to the particular facts of a case.
Thus, the factors identified in Daubert do not
constitute an exhaustive checklist or a definitive
litmus test.
In Kumho, the Court continued to grant trial
judges a great deal of discretion. The Court generally
permits trial judges to apply any useful
factors that will assist the trial court in making a
determination of reliability of proffered evidence
as deemed appropriate in the particular
case. The trial judge may use these factors
whether they are identified in Daubert or elsewhere.
Despite Daubert and the cases that have followed
in its aftermath, several issues involving
expert testimony remain unresolved, and courts
have reached various conclusions on these questions.
One such question arises from the U.S.
Supreme Court’s language defining scientific
knowledge. A related issue involves identifying
four specific factors by which reliability of such
knowledge was to be determined. In forming
this definition, the Court drew almost exclusively
from the physical sciences. But critics have
argued that the Daubert factors are not easily
applied to many other types of expert testimony,
particularly those that depended on unique
skills, generalized knowledge and experience,
technical prowess, or even on applied science or
clinical judgment. Another unresolved issue is
whether a Daubert inquiry would even be
required at all when a court is considering nonscientific
expert opinion evidence, or when a
particular technique already had gained widespread
judicial acceptance.
FURTHER READINGS
Dixon, Lloyd, and Brian Gill. 2001. Changes in the Standards
for Admitting Expert Evidence in Federal Civil Cases
Since the Daubert Decision. Santa Monica, Calif.: Rand
Corporation.
Florida Bar Continuing Legal Education Committee and the
Business Law Section. 1999. Daubert and Kumho Tire:
The Law, Science and Economics of Expert Testimony in
Business Litigation. Tallahassee, Fla.: Florida Bar.
Kramer, Larry, ed. 1996. Reforming the Civil Justice System.
New York: New York Univ. Press.
Smith, Frederick T. 2000. Daubert and Its Progeny: Scientific
Evidence in Product Liability Litigation. Washington,
D.C.:Washington Legal Foundation.
