Besser No Title

• Publication year: 2002
• Citation: Vol. 2002 No. 06

Vermont Bar Journal 2002.

June 2002. Besser No Title

DAUBERT REVISITED

Albert G. Besser, Esq.

Most of us anticipated that Daubert v. Merrell Dow(Fn1)would liberalize the standard for admitting expert testimony by liberating us from the "general acceptance" legacy of Frye v. United States.(Fn2)However, anecdotal evidence and a very unscientific survey of post-Daubert decisions suggest the contrary result has occurred.

Every trial lawyer who has wrestled with expert testimony knows the "Daubert factors." They are cited by rote: (1) whether the technique or process with respect to which opinion evidence is offered "can be (and has been) tested"; (2) whether it has been "subjected to peer review and publication"; (3) the "known or potential rate of error . . . and the existence and maintenance of standards controlling the technique's operation"; and (4) the Frye "general acceptance" criterion.(Fn3)The courts have tended to interpret and apply these factors as mandatory prerequisites, rather than suggested, discretionary criteria to be employed as the trial court sees fit. If the court cannot check off most if not all of these sine qua nons, the chances are that the proffered opinion will be rejected. Overlooked is the Supreme Court's reference with approval to United States v. Downing.(Fn4)The Third Circuit in Downing suggested that when confronted with novel scientific evidence (of which the court cannot take judicial notice), a trial court should focus on: (1) the soundness and reliability of the process or technique used to generate the evidence; (2) the possibility that it will confuse or mislead the jury; and (3) the contended connection between the scientific testimony to be presented and the disputed factual issues - much more flexible criteria.

Also often overlooked is the Supreme Court's own admonition in Daubert, which it echoed in Kuhmo Tire Co. v. Carmichael,(Fn5)that a

trial court may consider one or more of the more specific factors that Daubert mentioned when doing so will help determine that testimony's reliability. But . . . the test of reliability is 'flexible' and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts in every case. Rather, the law grants a district court the same broad latitude when it defines how to determine reliability as it enjoys in respect to its ultimate reliability determination.(Fn6)

Kuhmo later repeated: "That is to say a trial court...