Scientific Expert Witness Testimony – Where You Sue Can Make a Difference

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Testimony of scientific experts is common in both civil and criminal litigation. Juries are rarely comprised of individuals qualified to evaluate scientific evidence, and the testimony of experts with appropriate qualifications is often needed to help them reach a verdict. For example, the plaintiff in a medical malpractice case must ordinarily call upon a qualified physician expert to explain what was wrong about the defendant’s medical treatment. The defendant will ordinarily have contradictory expert testimony, and the jury is responsible for, in effect, deciding which of the two is more credible.

When May an Expert Testify?

Scientific expert testimony may be allowed in cases ranging from murder (think DNA identification) to negligent medical treatment, but in every instance the judge must first determine whether the evidence is legitimate under an applicable rule of evidence.

There are two main standards, both named after the cases in which they were first articulated.

The first is the so-called “Daubert” test. It governs in the federal courts cases and in about 80% of state cases. As distilled into Rule 702 of the federal rules of evidence, Daubert requires the judge to find that the following elements are present before permitting an expert to testify:

  • The expert’s testimony must help the jury understand specific evidence.
  • − The expert’s testimony must be adequately supported by   facts or data.
  • The testimony must be based on reliable principles and methods
  • The expert must properly apply his or her knowledge to the known facts in the case. 

Most other states follow a second standard, known as the “Frey” test. Under Frye, the technique by which the evidence as to which the expert will testify was gathered must be “generally accepted by experts in the field”. The evidence in question in that case was a precursor to the modern polygraph, the reliability of which the judge concluded had not yet achieved the requisite general acceptance by physiologists.

Daubert vs. Frye – Which Is Harder to Satisfy?  

Whether the Daubert test is more lenient or more restrictive than Frye has been the subject of debate in both state and federal cases in the more than twenty years since the adoption of federal evidence rule 702.

Many observers believe the “general acceptance” element in the Frye test presents an additional hurdle when the proffered testimony relates to emerging or developing science and contend that by ignoring it,  the Daubert court intended to create a more liberal standard.

On the other hand, some cases have found that the Supreme Court’s opinion in Daubert actually imposes a more rigorous standard because it limits the subject of an expert’s testimony to “scientific knowledge”; that is, conclusions derived only after formal application of the scientific method. Under this interpretation, testimony based solely on the expert’s observations or experience, no matter how extensive, is inadmissible.

The Frey and Daubert cases were decided in 1923 and 1993, respectively. What remains newsworthy is the ongoing debate regarding the requirements of each test, their application in specific cases and related state legislative action. For example, Florida amended its expert testimony rule in 2014 and Missouri followed suit in 2017, each in doing so ostensibly placing themselves in the Daubert camp. Other states may follow.

The one clear conclusion one can seemingly draw is that, regardless of whether suit is filed in federal court or in a Dauber or a Frey state court, disagreement surrounding the permissible content of and basis for scientific expert testimony is unlikely to be conclusively resolved any time soon.