Damage Experts and Daubert/Frye Issues

• Author: Jim Wren
• Pages: 205-226

7-1

7. Damage

Experts and

Daubert / Frye

Issues

Chapter 7

Damage Experts and

Daubert / Frye Issues

I. Anticipate Daubert or Frye Objections

A. General Points

§7:01 The Daubert / Frye Dichotomy

§7:02 The Focus of Frye Objections

§7:03 Overview of Daubert Challenges

§7:04 Use Interrogatories to Discover Objections

§7:05 Manage the Coordination of Expert Testimony

B. Daubert Relevance Objections

§7:10 The Opinion Must Help the Jury

§7:11 The Probative Value Is Outweighed by Prejudice

C. Daubert Reliability Objections

§7:20 The Expert Is Not Sufficiently Qualified

§7:21 The Methodology Is Not Reliable

§7:22 There Is an Analytical Gap Between Facts and Opinion

§7:23 There Is an Inadequate Factual Foundation

§7:24 The Facts Are Not of a Type Upon Which Experts Reasonably

Rely

II. Selecting Specific Experts

A. General Points

§7:30 Credentials and Qualification Requirements Vary

B. Mental Health Professionals

§7:40 Psychiatrists

§7:41 Clinical Psychologists

§7:42 Psychiatric Social Workers

§7:43 Marriage and Family Counselors

§7:44 Other Counselors and Clinicians

C. Other Experts

§7:50 Life Care Planners

§7:51 Vocational Experts

§7:52 Economists

§7:53 Accountants

§7:54 Business Valuation Experts

§7:01 Proving Damages to the Jury

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7. Damage

Experts and

Daubert / Frye

Issues

I. Anticipate Daubert or Frye Objections

A. General Points

§7:01 The Daubert / Frye Dichotomy

In a large percentage of damages cases, damages presentations require experts. That, in

turn, places a premium on anticipating objections and motions to exclude expert testimony.

The stakes are high.

The United States Supreme Court has held that, in federal courts, trial judges act as

gatekeepers with regard to expert opinions. They are charged with keeping irrelevant and

unreliable opinions out of the courtroom. [Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).]

Furthermore, appellate courts may review the record and the decision of the trial court

to admit the expert testimony. They may render against a plaintiff rather than reversing and

remanding if the appellate court decides that expert testimony on which a verdict depends

was erroneously admitted. [Weisgram v. Marley Co., 528 U.S. 440, 120 S.Ct. 1011 (2000)

(reasoning that plaintiffs presumably have put forward the only evidence available and

would not have been able to shore up their cases by other means had they known their expert

testimony would be found inadmissible).]

Not all state courts apply the same standards as the federal courts for the admissibility

of expert testimony. Although the majority of state courts now follow Daubert standards in

the same or similar manner as federal courts, a minority of state courts still apply a version

of the older “Frye test” which was superseded by Daubert.

From 1923 to 1993, most state and federal courts decided challenges to expert testimony

in accord with Frye v. U.S., 54 App. D.C. 46, 293 F. 1013 (D.C. 1923). Frye held that expert

testimony, to be admissible, must be “deduced from a well-recognized scientific principle

or discovery [which is] sufficiently established to have gained general acceptance in the

particular field in which it belongs.” 54 App, D.C. at 47, 293 F. at 1014. The “Frye test”

essentially reduced the admissibility test to a simple determination of whether the expert

opinion was derived from a generally accepted methodology. [See §7:02 “The Focus of

Frye Objections” for a more complete discussion of the Frye test which is still applicable in

a number of state courts.]

In 1975, the new Fed. R. Evid. 702 introduced somewhat more amorphous language

governing the admission of expert testimony, providing that “a witness qualified as an

expert by knowledge, skill, experience, training or education” may offer an expert opinion

if it “will assist the trier of fact to understand the evidence or to determine a fact in issue.”

In 1993, in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786,

125 L.Ed.2d 469 (1993), the U.S. Supreme Court held that Fed. R. Evid. 702 had superseded

Frye. The Court unveiled a more nuanced and complex analysis in place of the simple, but

rigid, Frye test.

This new Daubert approach was subsequently codified to a significant extent in the

2000 amendments to Rule 702, which added these requirements to the federal rule for expert

testimony:

• The testimony is based upon sufficient facts or data;

• The testimony is the product of reliable principles and methods; and