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Articles From Brisbane Consulting Group

Warning: Expert Admissibility Standards May Vary

In federal court, the admissibility of expert testimony is governed by the strict Daubert standard. The U.S. Supreme Court decided this landmark case in 1993.

For more than 25 years, it’s become routine for litigants in federal cases to challenge the methodologies of their opponents’ experts under Daubert. Courts in most states have also adopted the Daubert standard, but others may apply the less stringent Frye standard. Which one applies in your case?

Daubert vs. Frye

For 70 years, federal courts turned to the Frye standard when deciding whether to admit expert testimony. Under this standard, expert testimony is admissible if the expert’s methods are generally accepted as reliable in the relevant scientific community.

Criticism of Frye, in particular, its focus on consensus rather than scientific validity, led the Supreme Court in Daubert to establish a new test starting in 1993. In ruling on the admissibility of expert testimony, a trial judge must determine “whether the reasoning or methodology underlying the testimony is scientifically valid, and … whether that reasoning or methodology properly can be applied to the facts in issue.”

The Court listed several factors, including general acceptance, that a judge should consider in assessing whether an expert’s methods are scientifically valid. In its 1999 decision in Kumho Tire Co. v. Carmichael, the Court clarified that similar principles apply to financial and other non-scientific expert testimony.

Determine the Relevant Standard

Often, the admissibility of expert testimony can make or break a case. So, it’s critical to understand the applicable standard in state court. Just because a standard is memorialized in a state’s evidence rules doesn’t necessarily mean it will hold up in court.

For example, in the personal injury case Delisle v. Crane, Florida’s Supreme Court upheld the trial court’s admission of expert medical testimony regarding whether the plaintiff’s cancer was caused by exposure to asbestos. The court applied the Frye standard — even though Florida’s legislature had amended the state’s evidence code five years earlier to incorporate the more rigorous Daubert standard. The legislature’s amendment was unconstitutional, the court said because it encroached on the court’s authority to establish procedural rules.

Be Prepared

It’s important to ascertain the relevant standard early in the litigation process. This dictates the steps you must take to ensure that your experts are permitted to testify. Establishing general acceptance under Frye generally requires less work than demonstrating scientific validity under Daubert. Therefore, the standard that applies may affect the scope of your expert’s work and, ultimately, the cost of litigation.

 Warning: Expert Admissibility Standards May Vary

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Bill is a Principal with Brisbane Consulting Group Business Valuation Division, providing business valuation, forensic accounting and litigation support services. His valuation experience includes the valuation of closely held companies, covering a wide range of industries and engagements including: marital dissolution, dissenting shareholder disputes, estates and gift tax planning, merger/acquisition and due diligence reporting.

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