Daubert Trilogy

Daubert v Merrell Dow Pharmaceuticals, Inc., 590 U.S. 579 (1993)

Here the Supreme Court looked at whether Frye survived the FRE and for the first time specifically looked at scientific expert testimony. The court established that Frye did not survive the FRE. The court attempted to clarify admissibility standards by indicating that the trial judges must act as “gatekeepers” to determine whether the proffered testimony was relevant and reliable (Petroski, H.). The Supreme Court gave “general observations” that a trial judge can consider to help them determine the reliability of the proffered expert testimony. These questions have come to be known as the “Daubert Factors” or the “Daubert Prongs”, which can be summarized as follows:

  • Can and has the theory or technique been empirically tested?
  • Has the theory or technique been subjected to peer review and publication?“
  • The court should ordinarily consider the known or potential rate of error and the maintenance of standards controlling the techniques operation”
  • Are the methods and techniques generally accepted within the scientific community?

General Electric Co. v Joiner, 522 U.S. 136 (1997)

The second case considered part of the “Daubert Trilogy.” In Joiner the Supreme Court held that the court of appeals must apply the “abuse of discretion” standard when it reviews the trial court’s admission (or exclusion) of expert testimony. The Joiner court also clarified the Daubert language stating that the focus has to remain on the methodology and the techniques and not on the conclusion. That, “A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.”

Kumho Tire Co., Ltd. v Carmichael, 526 U.S. 137 (1999)

In this third case in the Daubert Trilogy, again the Supreme Court tried to clarify admissibility issues brought up because of fallout from Daubert. The Kumho court held that the Daubert “gatekeeping” factors apply not only to scientific testimony but to all expert testimony. The court said that Rule 702 does not distinguish between scientific knowledge and technical knowledge factors may apply to the testimony of engineers and other expert who are not scientists. The court also stated that the considerations expressed in the Daubert ruling do not constitute a “checklist” for determining admissibility and that Rule 702 is a flexible rule. Daubert only offered a trial judge a list of things they might consider when trying to determine if the proffered testimony is reliable.

The “Daubert Prongs” are not accepted in all states but variations of the “prongs” are used in some states under different case names. Basically, any motion in limine that seeks to preclude an expert from testifying based on their expertise and/or the reliability of the evidence/testimony being proffered could be considered a “Daubert-style hearing”.