1. Daubert Overview Donald W. Stever Kirkpatrick & Lockhart Preston Gates Ellis LLP

2. Frye Test Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) Remains the rule in a majority of states –“…the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye at 1014. Elements of the Frye standard –Theory must be subjected to peer review –Peers must have generally accepted the theory

3. Underlying Federal Rules Rule 702. Testimony By Experts –Scientific, technical or other specialized knowledge –Assist trier of fact –Witness qualified by knowledge, skill, training, or education may testify if Testimony based on sufficient facts or data Product of reliable principles or methods Which witness applies reliably to the facts of the case

4. Rationale Behind Daubert Test Rules 702 and 703 adopted 1975 Supreme Court in Daubert v Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) ruled that these rules were intended to liberalize admissibility of expert evidence, effectively rejecting the Frye test. –Evidenced dislike of the “general acceptance” criterion.

5. Schematic of Daubert Test Evidence must be reliable and relevant –Underlying methodology & procedure must be based on scientific knowledge –District court is gatekeeper – determines whether reasoning or methodology is scientifically valid, applying several factors Has theory or methodology been tested Has it been subjected to peer review Has it been generally accepted

6. Post-Daubert Gloss In Kumho Tire Co. V. Carmichael, 526 U.S. 137 (1999), the Court articulated that the objective of Daubert was: –“to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”

7. Post-Daubert Gloss Four Daubert Criteria evolved – see, e.g., Moore v. Ashland,151 F.3d 269,275 (5 th Cir. 1998) –Whether the expert’s theory is testable –Whether an established rate or margin of error applies to the technique or theory used by the expert –Whether the method has been subject to peer review –Whether and to what degree the method or theory is generally accepted in the relevant scientific community

8. Criticisms of Daubert Most criticism of Daubert comes from the plaintiffs’ bar Note: More plaintiff-proffered expert testimony than defendant-proffered expert testimony is rejected by courts applying Daubert. –Gives trial judges opportunity to prevent a case from going to a jury –Pressure to reduce case loads –Trial judges ill-equipped to be scientific gate keepers Exclude evidence that is both peer reviewed and otherwise accepted in the scientific community due either to lack of ability to understand it or bias.

9. Comment Most testimony rejected under Daubert, as it is under Frye, involves novel theories or ultra- complex reasoning or methodologies. The Frye criterion of “general acceptance by the relevant scientific community” has the advantage of simplicity in its application by a gatekeeper. Apparent trend by federal trial judges to apply Daubert criteria with an emphasis on the last, Frye-like, element of the four-part test.

10. Comment It is interesting to speculate whether, if Daubert was applicable in the mid-1970s, opinion testimony to the effect that dense chlorinated solvents disposed of in a wastewater lagoon would migrate through the liner, down through the soil and saturated zone until they hit impervious strata, and then slowly dissolve into the groundwater would be admitted. Schwille’s experiments that proved his phenomenon had not yet been published.

11. Advice to Litigators Educate your expert not only as to the four factors, but also about the judicial gloss. Test your expert’s theory and methodology critically against the most conservative application of Daubert Look beyond the broad Daubert factors and test your expert’s testimony (or your opponent’s expert’s testimony) against the following additional factors (thanks to Allan Kanner for compiling these in his 2006 paper)

12. Additional Factors How does the expert’s reasoning and methodology differ from other, more “established” theories and methodologies? Did your expert read the relevant literature pertinent to the subject and his/her theory or methodology? Is your expert’s opinion based on a hypothesis still requiring proof? What supporting studies, research or literature exist to underpin the expert’s opinion?

13. Additional Factors Did your expert reason from known facts to reach a conclusion and not from an end result in order to hypothesize what needed to be known but what was not? Where has the “peer review” occurred. Was it in an established, unbiased scientific journal? Did the expert undertake a hands-on evaluation of the think at issue (e.g., the site) or simply perform a literature and indirect evidence evaluation? How much hands-on experience with the thing at issue has the expert had?

14. Judicial Decisions Parker v. Mobil Oil Corp., et.al., 793 N.Y.S.2d 434 (App.Div.2 nd Dept. 2005, aff’d 7 NY 3d 434,2006) Claar v. Burlington Northern RR CO., 29 F.3d 499 (9 th Cir. 1994) Porter v. Whitehall Laboratories, Inc., 9 F.3d 607 (7 th Cir.1993) Reynard v. NEC Corp., 887 F.Supp. 1500 (M.D.Fla.1995) Valentine v. Pioneer Chlor Alkali Co., 921 F.Supp. 666 (D.Nev.1996) Magistrini v. One Hour Martinizing Dry Cleaning, 180 F.Supp.2d.584 (D.N.J. 2002, aff’d 68 Fed.Appx.356 (3d Cir. 2003) General Electric Co. v. Joiner, 522 U.S. 136 (1997) Rider v. Sandoz Pharmaceuticals, 295 F.3d 1194 (11 th Cir. 2002) In re Commitment of Simons, 821 N.E.2d 1184 (Ill.2004)

15. A Word to the Wise Get your expert testimony right at the outset, because you may not get a chance to fix it up following a Daubert hearing –Weisgram v. Marley, 528 U.S. 440 (2000) –Lippe v. Bairnco Corp., 249 F.Supp.2d 357 (S.D.N.Y.2003) –Pride v. Bic Corp, 218 F.3d 566 (6 th Cir. 2000)