In most cases, attorneys may be able to successfully use Daubert challenges to exclude scientific expert witness testimony and testimony based on technical or other specialized knowledge as well. In evaluating the reliability of an expert’s testimony, the Daubert court would consider whether the expert’s theory can and has been tested; whether the technique or theory used by the expert is supported by peer review and publication; a quantitative analysis that requires the expert’s testimony must be based on sufficient facts or data to include reliable opinions of other experts in the same field; and, the rate of error or fabrication in the expert witness’s testimony. However, it is important to note that these factors are neither exclusive nor dispositive since not all of the specified Daubert factors can apply to every type of expert’s testimony as it depends upon the particular circumstances of the case at issue.
Additionally, in determining whether the expert’s testimony is sufficiently reliable, the jury may consider other relevant factors, such as: 1) whether the expert formed an opinion and produced a report out of research they have conducted independently of the present litigation, or whether they have formed their opinions especially for purposes of testifying; 2) whether experts extended their methods or conclusions to an unknown situation by assuming that an existing tendency will continue or similar methods will be applicable; 3) whether the expert failed to consider other obvious causes for the injured party’s condition; 4) the expert’s standard of care as a reasonable, prudent expert would be in his regular professional practice independently of his paid litigation consulting; and 5) whether the expert’s specialized area is known to reach reliable results based on the type of the expert’s opinion given.
Although, as of July 1, 2013, any trial judge in a pending case must use the Daubert standard when determining the admissibility of an expert’s testimony at trial, Florida courts and a minority of jurisdictions, such as California, Illinois, Maryland, New York, New Jersey, Washington and Pennsylvania continued to apply the older Frye standard to expert testimony based on “new or novel” or “tried and true” scientific principles of procedures.
Under Frye, in a Florida products liability case Ramirez v. State, the court concluded that the expert witness’ testimony was not admissible based on the fact that the record did not show that the expert witness’ methodology and specifically his claim of infallibility had ever been properly tested or otherwise verified, nor did the record show that the expert witness’ test has ever been subjected to meaningful peer review or publication as a prerequisite to scientific acceptance. Actually, the expert’s testimony was contradicted by his own published article that sustained his methodology.
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Finally, the record did not establish that the error rate for the expert’s method has ever been quantified, nor did it show that the method was governed by objective scientific standards. In fact, the record contained no written authority, including the expert’s own published article where he upheld his current methodology. Consequently, the Ramirez court concluded that the expert witness’ testimony was not admissible.
See Daubert vs. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kannankeril v. Terminix Int’l Inc., 128 F.3d 802, 806 (3d Cir. 1997); General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)
Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999); Ramirez v. State, 810 So. 2d 836 (Fla. 2002); United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004); Take Primiano v. Cook, 598 F.3d 558 (9th Cir. 2010); American Auto. Ins. Co. v. Omega Flex, Inc., 783 F.3d 720 (8th Cir. 2015).
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