Daubert Overview
Donald W. Stever
Kirkpatrick & Lockhart Preston Gates Ellis LLP
Frye Test
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)
• Remains the rule in a majority of states
– “…the thing from which the deduction is made
must be sufficiently established to have
gained general acceptance in the particular
field in which it belongs.” Frye at 1014.
• Elements of the Frye standard
– Theory must be subjected to peer review
– Peers must have generally accepted the
theory
Underlying Federal Rules
• Rule 702. Testimony By Experts
– Scientific, technical or other specialized
knowledge
– Assist trier of fact
– Witness qualified by knowledge, skill, training,
or education may testify if
• Testimony based on sufficient facts or data
• Product of reliable principles or methods
• Which witness applies reliably to the facts of the
case
Rationale Behind Daubert Test
• Rules 702 and 703 adopted 1975
• Supreme Court in Daubert v Merrill Dow
Pharmaceuticals, Inc., 509 U.S. 579
(1993) ruled that these rules were
intended to liberalize admissibility of
expert evidence, effectively rejecting the
Frye test.
– Evidenced dislike of the “general acceptance”
criterion.
Schematic of Daubert Test
• Evidence must be reliable and relevant
– Underlying methodology & procedure must be
based on scientific knowledge
– District court is gatekeeper – determines
whether reasoning or methodology is
scientifically valid, applying several factors
• Has theory or methodology been tested
• Has it been subjected to peer review
• Has it been generally accepted
Post-Daubert Gloss
• In Kumho Tire Co. V. Carmichael, 526 U.S. 137
(1999), the Court articulated that the objective of
Daubert was:
– “to ensure the reliability and relevancy of expert
testimony. It is to make certain that an expert,
whether basing testimony upon professional studies
or personal experience, employs in the courtroom the
same level of intellectual rigor that characterizes the
practice of an expert in the relevant field.”
Post-Daubert Gloss
• Four Daubert Criteria evolved – see, e.g., Moore
v. Ashland,151 F.3d 269,275 (5th Cir. 1998)
– Whether the expert’s theory is testable
– Whether an established rate or margin of error
applies to the technique or theory used by the expert
– Whether the method has been subject to peer review
– Whether and to what degree the method or theory is
generally accepted in the relevant scientific
community
Criticisms of Daubert
• Most criticism of Daubert comes from the
plaintiffs’ bar Note: More plaintiff-proffered expert testimony than
defendant-proffered expert testimony is rejected by courts applying Daubert.
– Gives trial judges opportunity to prevent a
case from going to a jury
– Pressure to reduce case loads
– Trial judges ill-equipped to be scientific gate
keepers
• Exclude evidence that is both peer reviewed and
otherwise accepted in the scientific community due
either to lack of ability to understand it or bias.
Comment
• Most testimony rejected under Daubert, as it is
under Frye, involves novel theories or ultracomplex reasoning or methodologies.
• The Frye criterion of “general acceptance by the
relevant scientific community” has the advantage
of simplicity in its application by a gatekeeper.
• Apparent trend by federal trial judges to apply
Daubert criteria with an emphasis on the last,
Frye-like, element of the four-part test.
Comment
• It is interesting to speculate whether, if Daubert
was applicable in the mid-1970s, opinion
testimony to the effect that dense chlorinated
solvents disposed of in a wastewater lagoon
would migrate through the liner, down through
the soil and saturated zone until they hit
impervious strata, and then slowly dissolve into
the groundwater would be admitted.
• Schwille’s experiments that proved his
phenomenon had not yet been published.
Advice to Litigators
• Educate your expert not only as to the four
factors, but also about the judicial gloss. Test
your expert’s theory and methodology critically
against the most conservative application of
Daubert
• Look beyond the broad Daubert factors and test
your expert’s testimony (or your opponent’s
expert’s testimony) against the following
additional factors (thanks to Allan Kanner for
compiling these in his 2006 paper)
Additional Factors
• How does the expert’s reasoning and
methodology differ from other, more
“established” theories and methodologies?
• Did your expert read the relevant literature
pertinent to the subject and his/her theory or
methodology?
• Is your expert’s opinion based on a hypothesis
still requiring proof?
• What supporting studies, research or literature
exist to underpin the expert’s opinion?
Additional Factors
• Did your expert reason from known facts to
reach a conclusion and not from an end result in
order to hypothesize what needed to be known
but what was not?
• Where has the “peer review” occurred. Was it in
an established, unbiased scientific journal?
• Did the expert undertake a hands-on evaluation
of the think at issue (e.g., the site) or simply
perform a literature and indirect evidence
evaluation? How much hands-on experience
with the thing at issue has the expert had?
Judicial Decisions
• Parker v. Mobil Oil Corp., et.al., 793 N.Y.S.2d 434 (App.Div.2nd Dept.
2005, aff’d 7 NY 3d 434,2006)
• Claar v. Burlington Northern RR CO., 29 F.3d 499 (9th Cir. 1994)
• Porter v. Whitehall Laboratories, Inc., 9 F.3d 607 (7th Cir.1993)
• Reynard v. NEC Corp., 887 F.Supp. 1500 (M.D.Fla.1995)
• Valentine v. Pioneer Chlor Alkali Co., 921 F.Supp. 666 (D.Nev.1996)
• Magistrini v. One Hour Martinizing Dry Cleaning, 180 F.Supp.2d.584
(D.N.J. 2002, aff’d 68 Fed.Appx.356 (3d Cir. 2003)
• General Electric Co. v. Joiner, 522 U.S. 136 (1997)
• Rider v. Sandoz Pharmaceuticals, 295 F.3d 1194 (11th Cir. 2002)
• In re Commitment of Simons, 821 N.E.2d 1184 (Ill.2004)
A Word to the Wise
• Get your expert testimony right at the
outset, because you may not get a chance
to fix it up following a Daubert hearing
– Weisgram v. Marley, 528 U.S. 440 (2000)
– Lippe v. Bairnco Corp., 249 F.Supp.2d 357
(S.D.N.Y.2003)
– Pride v. Bic Corp, 218 F.3d 566 (6th Cir. 2000)