 The Daubert standard is a rule of evidence regarding the admissibility of expert

witnesses' testimony during federal legal proceedings. Pursuant to this standard, a

party may raise a Daubert motion, which is a special case of motion in limine
raised before or during trial to exclude the presentation of unqualified evidence to
the jury. The Daubert trilogy refers to the three United States Supreme Court
cases that articulated the Daubert standard:

 Daubert v. Merrell Dow Pharmaceuticals, which held that Rule 702 did
not incorporate the Frye "general acceptance" test as a basis for assessing
the admissibility of scientific expert testimony;
 General Electric Co. v. Joiner,[1], which held that an abuse-of-discretion
standard of review was the proper standard for appellate courts to use in
reviewing a trial court's decision of whether expert testimony should be
admitted;
 Kumho Tire Co. v. Carmichael[2], which held that the judge’s gatekeeping
function identified in Daubert applies to all expert testimony, including
that which is non-scientific.

Two of the most important appellate level opinions that clarify the standard include Judge
Kozinski's opinion in Daubert on remand (Daubert v. Merrell Dow Pharmaceuticals, Inc.,
43 F.3d 1311 (9th Cir. 1995)), and Judge Becker's opinion in In re Paoli R.R. Yard PCB
Litig., 35 F.3d 717 (3d Cir. 1994).

Contents
[hide]
 1 Definition
 2 Usage
o 2.1 Daubert motion: timing
 3 History
 4 Commentary
 5 International influence
 6 References

 7 External links

[edit] Definition
In Daubert, seven members of the Court agreed on the following guidelines for admitting
scientific expert testimony:

 Judge is gatekeeper: Under Rule 702, the task of "gatekeeping", or assuring that
scientific expert testimony truly proceeds from "scientific knowledge", rests on
the trial judge.
  Relevance and reliability: This requires the trial judge to ensure that the expert's
testimony is "relevant to the task at hand" and that it rests "on a reliable
foundation". Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 584-587.
Concerns about expert testimony cannot be simply referred to the jury as a
question of weight. Furthermore, the admissibility of expert testimony is governed
by Rule 104(a), not Rule 104(b); thus, the Judge must find it more likely than not
that the expert's methods are reliable and reliably applied to the facts at hand.
 Scientific knowledge = scientific method/methodology: A conclusion will
qualify as scientific knowledge if the proponent can demonstrate that it is the
product of sound "scientific methodology"/derived from the scientific method.[3]
 Factors relevant:The Court defined "scientific methodology" as the process of
formulating hypotheses and then conducting experiments to prove or falsify the
hypothesis, and provided a nondispositive, nonexclusive, "flexible" test for
establishing its "validity":

1. Empirical testing: the theory or technique must be falsifiable, refutable,

and testable.
2. Subjected to peer review and publication.
3. Known or potential error rate and the existence
4. The existence and maintenance of standards and controls concerning its
operation.
5. Degree to which the theory and technique is generally accepted by a
relevant scientific community.

In 2000, Rule 702 was amended in an attempt to codify and structure the "Daubert
trilogy." Rule 702 now includes the additional provisions which state that a witness may
only testify 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."

[edit] Usage
Although the Daubert standard is now the law in federal court and over half of the states,
Frye remains the law in jurisdictions including California, Florida, Illinois, New York,
Pennsylvania, and Washington.[4]

Although trial judges have always had the authority to exclude inappropriate testimony,
previous to Daubert, trial courts often preferred to let juries hear evidence proffered by
both sides.[5] Once certain evidence has been excluded by a Daubert motion because it
fails to meet the relevancy and reliability standard, it will likely be challenged when
introduced again in another trial. Even though a Daubert motion is not binding to other
courts of law, if something was found not trustworthy, other judges may choose to follow
that precedent. Of course, a decision by the Court of Appeals that a piece of evidence is
inadmissible under Daubert would be binding on district courts within that court's
geographic jurisdiction.

[edit] Daubert motion: timing

To attack expert testimony as inadmissible, counsel may bringpretrial motions, including

motions in limine.[6] The motion in limine may be brought prior to trial, although counsel
may bring the motion during trial as well. [7]

You should bring a motion attacking expert testimony within a reasonable time after the
close of discovery if the grounds for the objection can be reasonably anticipated.[8] The
hearing should be made well in advance of the first time a case appears on a trial
calendar.

In one case where a Daubert hearing was conducted on the day of the trial, in which the
district court excluded all plaintiff's expert testimony, resulting in the dismissal of all
claims, the appellate court remanded the case because of multiple irregularities and a
defective record of lower court proceedings.[9]

The appellate court noted that in cases that rely heavily on expert testimony, a district
court should set a discovery [10] and trial schedule that realistically provides both sides
with an adequate opportunity to introduce necessary evidence. The application of Federal
Rule of Evidence 702 to proposed expert testimony can often be an uncertain process,
and is best conducted in such a manner that litigants have a reasonable opportunity to
locate experts who meet the rule's requirements.

In another case in which the defendant was apparently at fault for filing a motion to
exclude expert testimony one week before the trial date, the district court denied the
motion on that ground, but it advised the defendant that it might conduct its own voir dire
of the expert in question before he testified. The district court preliminarily found that
defendant's motion was predicated on a ruling made almost three months earlier by a
district court in another state, and that defendant had shown no good cause for waiting to
file the motion. The defendant ultimately lost that case, following the admission of the
disputed expert testimony, and ultimately failed in its appeal.[11]

An evidentiary hearing on the motion may not be necessary if the court finds that it
would not assist the court in ruling on any of the matters in the motion.

[edit] History
Prior to Daubert, relevancy in combination with the Frye test were the dominant
standards for determining the admissibility of scientific evidence in Federal courts. Frye
is based on a 1923 Federal Court of appeals ruling involving the admissibility of
polygraph evidence.[12] Under Frye, the Court based the admissibility of testimony
regarding novel scientific evidence on whether it has "gained general acceptance in the
particular field in which it belongs." The trial court's gatekeeper role in this respect is
typically described as conservative, thus helping to keep pseudoscience out of the
courtroom by deferring to those in the field.

In Daubert, the Supreme Court ruled that the 1923 Frye test was superseded by the 1975
Federal Rules of Evidence, specifically Rule 702 governing expert testimony. Rule 702
originally stated (in its entirety),

"If scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or 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."

In Daubert, the Court ruled that nothing in the Federal Rules of Evidence governing
expert evidence "gives any indication that 'general acceptance' is a necessary precondition
to the admissibility of scientific evidence. Moreover, such a rigid standard would be at
odds with the Rules' liberal thrust and their general approach of relaxing the traditional
barriers to 'opinion' testimony."

[edit] Commentary
The Daubert decision was heralded by many observers as one of the most important
Supreme Court decisions of the last century imparting crucial legal reforms to reduce the
volume of what has disparagingly been labeled junk science in the court room. Many of
these individuals were convinced by Peter Huber’s 1991 book Galileo’s Revenge: Junk
Science in the Courtroom[13] which argued that numerous product liability and toxic tort
verdicts were unjustly made on the basis of junk science. According to Huber, junk
science in the courts threatened not only justice but the workings of the American
economy. This threat rested on two premises:

1. Juries are not competent to recognize flaws in scientific testimony, especially

toxic tort or product liability suits where decisions on causation rested on complex
scientific issues.
2. The result of junk science is the issuance of jury awards that deter manufacturers
from introducing worthwhile products into the marketplace out of fear of
unwarranted tort liability for injuries their products have not caused.[14]

By requiring experts to provide relevant opinions grounded in reliable methodology,

proponents of Daubert were satisfied that these standards would result in a fair and
rational resolution of the scientific and technological issues which lie at the heart of
product liability adjudication.[15]

According to a 2002 RAND study, post Daubert, the percentage of expert testimony by
scientists that was excluded from the courtroom significantly rose. This rise likely
contributed to a doubling in successful motions for summary judgment in which 90%
were against plaintiffs.[16] Beyond this study, there is little empirical evidence of the
impact of Daubert. However, some critics argue that Daubert has disrupted the balance
between plaintiffs and defendants, “The exclusion of expert testimony affects plaintiffs
far more than defendants because plaintiffs may then not be able to meet their required
burden of proof. Furthermore, there is little point in plaintiffs going to the expense of
Daubert motions to exclude defendant’s experts until they know if their case will
proceed. So if more experts are now being excluded, then Daubert has undoubtedly
shifted the balance between plaintiffs and defendants and made it more difficult for
plaintiffs to litigate successfully.”[5] Similarly, Daubert hearings can be subject to various
abuses by attorneys attempting to bolster a weak case. These tactics can range from
simply attempting to delay the case to driving up the costs of the litigation forcing
settlement.[17]

A different pattern has emerged in criminal cases. In criminal cases, the prosecution has
the burden of proof and uses a host of forensic science methods as evidence to prove their
case. But, Daubert motions are rarely made by criminal defendants and when they do,
they lose a majority of the challenges.[18][19] Some critics of the use of unreliable science
in court argue that Daubert has had beneficial effects in civil litigation, but fails to
address the underlying pathologies of the forensic science system that leads to dubious
verdicts in criminal cases.[20]

Some commentators believe that Daubert caused judges to become—in the phrase used
in former Chief Justice William Rehnquist’s dissent in Daubert—amateur scientists,
many lacking the scientific literacy to effectively fulfill their role as gatekeeper of
scientific evidence.[21] Although “science for judges” forums have emerged in the wake of
Daubert in order to educate judges in a variety of scientific fields, many are still skeptical
about the usefulness of the Daubert standard in discerning valid science.[22][23][24]

To summarize, five cardinal points Daubert asks of every new technique in order to be
admissible in court are:

1. Has the technique been tested in actual field conditions (and not just in a
laboratory)? [e.g. fingerprinting has been extensively tested and verified not only
in laboratory conditions, but even in actual criminal cases. So it is admissible.
Polygraphy on the other hand has been well tested in laboratories but not so well
tested in field conditions]
2. Has the technique been subject to peer review and publication?
3. What is the known or potential rate of error? Is it zero, or low enough to be close
to zero?
4. Do standards exist for the control of the technique's operation? [e.g. the use of
penile plethysmography for sex offender risk assessment is being used by
different workers according to their own standards. Thus penile plethysmography
does not meet Daubert criteria]
5. Has the technique been generally accepted within the relevant scientific
community? [this test was earlier the only relevant criterion under Frye]

The Supreme Court explicitly cautioned that the Daubert list should not be regarded by
judges as “a definitive checklist or test…” Yet in practice, many judges regularly judge
the admissibility of scientific evidence using the "Daubert factors" as a checklist.[citation
needed]

[edit] International influence

In 2005, the United Kingdom House of Commons Science and Technology Committee
recommended the creation of a Forensic Science Advisory Council to regulate forensic
evidence in the UK and observed that:

The absence of an agreed protocol for the validation of scientific

techniques prior to their being admitted in court is entirely unsatisfactory.
Judges are not well-placed to determine scientific validity without input
from scientists. We recommend that one of the first tasks of the Forensic
Science Advisory Council be to develop a “gate-keeping” test for expert
evidence. This should be done in partnership with judges, scientists and
other key players in the criminal justice system, and should build on the
US Daubert test.[25]

[edit] References
1. ^ 522 U.S. 136 (1997)
2. ^ 526 U.S. 137 (1999)
3. ^ Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 589.
4. ^ Giannelli & E. Imwinkelried, Scientific Evidence §§ 1.06, 1.16 (4th ed. 2007).
5. ^ a b Berger, Margaret A. (2005). "What Has a Decade of Daubert Wrought"
(PDF). American Journal of Public Health 95(S1): S59.
doi:10.2105/AJPH.2004.044701. PMID 16030340.
http://www.defendingscience.org/loader.cfm?
url=/commonspot/security/getfile.cfm&PageID=2407. Retrieved 2006-07-12.
6. ^ The third circuit has emphasized the importance of conducting in limine
hearings under Fed. R. Evid. 104 (resolution of preliminary questions) when
making reliability determinations required by Fed. R. Evid. 702 and Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d
469 (1993). See Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 417 (3d Cir. 1999) ;
Voilas v. General Motors Corp., 73 F. Supp. 2d 452, 455 (D.N.J. 1999) (not
holding hearing in this case, however). See also 1 Weinstein's Federal Evidence,
Ch. 104, Preliminary Questions (Matthew Bender 2d ed.); Edward J.
Imwinkelried & David A. Schlueter, Federal Evidence Tactics, Ch. 1, Article I:
General Provisions, § 1.04 (Matthew Bender).
7. ^ See, e.g., Smoot v. Mazda Motors of America, Inc., 469 F.3d 675, 676 (7th Cir.
2006) (case dismissed after plaintiff expert's testimony excluded); Curtis v. M&S
Petroleum, Inc., 174 F.3d 661, 667 (5th Cir. 1999) ; United States v. Nichols, 169
F.3d 1255, 1265-1266 (10th Cir. 1999 ); Heller v. Shaw Indus., Inc., 167 F.3d
146, 155, 157-158 (3d Cir. 1999) ; Ruiz-Troche v. Pepsi Cola of Puerto Rico, 161
F.3d 77, 90 (1st Cir. 1998) ; Jack v. Glaxo Wellcome Inc., 239 F. Supp. 2d 1308,
 1319 (D. Ga. 2002) (rejecting objection of untimeliness of motion in limine to
exclude expert testimony on ground that motion in limine is not dispositive);
United States v. Lester, 234 F. Supp. 2d 595, 597-598 (E.D. Va. 2002) (criminal
defendant's motion to allow expert testimony regarding reliability of eyewitness
testimony denied); Lentz v. Mason, 32 F. Supp. 2d 733, 737 (D.N.J. 1999).
8. ^ See, e.g., Pineda v. Ford Motor Co., 520 F.3d 237, 241-242 (3d Cir. 2008) (after
deposition of plaintiff's expert, defendant filed alternative motions to exclude
testimony of plaintiff's expert and for summary judgment, and motion for Daubert
hearing).
9. ^ Webster v. Fulton County, Ga., 85 F. Supp. 2d 1375, 1377 (N.D. Ga. 2000)
(denying defendant's Daubert motion as untimely, when brought after court had
relied on plaintiff expert's report in denying defense summary judgment motion,
and within days of trial date). See also Alfred v. Caterpillar, Inc., 262 F.3d 1083,
1087 (10th Cir. 2001 ) (counsel should not sandbag Daubert concerns until close
of opponent's case; however, appellate court did not reach issue of late filing of
motion because district court chose to address defendant's Daubert objections on
merits, rather than deeming them waived); Pullman v. Land O'Lakes, Inc., 262
F.3d 759, 763 (8th Cir. 2001) (appellate court noted with disapproval that
defendant failed to bring Daubert motion until shortly before the trial began;
Daubert inapplicable to experimental test evidence not presented by expert
witnesses).
10. ^ See Smith v. Ford Motor Co., 215 F.3d 713, 722 (7th Cir. 2000) . See also
Goebel v. Denver and Rio Grande W. R.R., 215 F.3d 1083, 1087 (10th Cir. 2000)
(district court orally denied motion to exclude expert testimony on morning of
trial); McPike v. Corghi S.p.A., 87 F. Supp. 2d 890, 891 n.1 (E.D. Ark. 1999)
(court telephoned attorneys with ruling denying defendant's motion to exclude
plaintiff's expert testimony, because closeness of trial did not allow time for
formal written memo and order at that time; court later rendered substituted
memorandum and order, fully stating reasons for its decision in writing).
11. ^ See Clay v. Ford Motor Co., 215 F.3d 663, 674 (6th Cir. 2000)
12. ^ Frye v. United States, 293 F. 1013 (DC Cir. 1923)
13. ^ Huber, Peter W. (1991). Galileo’s Revenge: Junk Science in the Courtroom.
Basic Books. ISBN 0465026230.
14. ^ Gottesman, M. (1998). "For Barefoot to Daubert to Joiner: Triple Play or
Double Error?". Arizona Law Review 40: 753. ISSN 0004153X.
15. ^ Owen, D. G. (2002). "A Decade of Daubert". Denver University Law Review
80: 345. ISSN 08839409.
16. ^ Dixon, L, Gill B. Changes in the Standards for Admitting Expert Evidence in
Federal Civil Cases Since the Daubert Decision. RAND Institute for Civil Justice.
2002.
17. ^ Gutheil, Thomas G.; Bursztajn, Harold J. (01 Jun 2005). "Attorney Abuses of
Daubert Hearings: Junk Science, Junk Law, or Just Plain Obstruction?". Journal
of the American Academy of Psychiatry and the Law 33 (2): 150–152. PMID
15985655. http://www.jaapl.org/cgi/content/full/33/2/150.
 18. ^ Risinger, D. Michael (2000). "Navigating Expert Reliability: Are Criminal
Standards of Certainty Being Left on the Dock?". Albany Law Review 64: 99.
ISSN 00024678.
19. ^ Neufeld, P. (2005). "The (Near) Irrelevance of Daubert to Criminal Justice and
Some Suggestions for Reform". American Journal of Public Health 95 (S1):
S107–S113. doi:10.2105/AJPH.2004.056333.
20. ^ Bernstein, David E. (2007). "Expert Witnesses, Adversarial Bias, and the
(Partial) Failure of the Daubert Revolution". Iowa Law Review.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=963461.
21. ^ Gatowski, S. I.; et al. (2001). "Asking the gatekeepers: A National Survey of
Judges on Judging Expert Evidence in a Post-Daubert world". Law and Human
Behavior 25 (5): 433–458. doi:10.1023/A:1012899030937.
22. ^ Rothman, K. J.; Greenland, S. (2005). "Causation and Causal Inference in
Epidemiology". American Journal of Public Health 95 (S1): S144–S150.
doi:10.2105/AJPH.2004.059204.
23. ^ Melnick, R. (2005). "A Daubert Motion: A Legal Strategy to Exclude Essential
Scientific Evidence in Toxic Tort Litigation". American Journal of Public Health
95 (S1): S30–S34. doi:10.2105/AJPH.2004.046250.
24. ^ Jasanoff, S. (2005). "Law’s Knowledge: Science for Justice in Legal Settings".
American Journal of Public Health 95 (S1): S49–S58.
doi:10.2105/AJPH.2004.045732.
25. ^ House of Commons Science and Technology Committee (2005) Forensic
Science on Trial, London: The Stationery Office Limited, HC96-I, para.173

[edit] External links

 The Daubert Trilogy in the States
 Daubert on the Web
 Daubert-The Most Influential Supreme Court Decision You've Never Heard Of
 Project on Scientific Knowledge and Public Policy (SKAPP), collection of
original documents and commentary on the Daubert standard and the use of
science in public policy.
 Daubert Institute for Science & Law How Daubert applies to psychiatric and
psychological evidence.
 Barry Yeoman Putting Science in the Dock, The Nation
 The Daubert Tracker

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