Daubert Standard

Brien Roche

The Daubert standard was adopted in the federal system in 1993.  The case is Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). 

Daubert has never been adopted in Virginia.  In addition the Virginia Code at section 8.01-401.3 in an Editor’s note in the Lexis edition, says that the Code Commission has noted that nothing in the Virginia Code shall be construed as a codification of the Daubert rule.  

Daubert Standard: Look At The Method Not Facts Or Conclusions

What Daubert essentially says is that the court shall act as a gatekeeper to keep out of evidence what might otherwise be referred to as “junk science”.  In other words, what Daubert is looking at is reliability.  Is the expert testimony reasonably reliable?  

Many of the challenges to expert testimony go to the causation issue.  In looking at that issue in general, the question has to be asked:  Is the causation testimony based upon factual cause or legal cause?  The distinction being nearness.  That is, something may be a factual cause, yet a remote cause.  If something is a legal cause, then it is a near cause or a proximate cause of the injury.

In your run-of-the-mill injury case, Daubert is probably not going to be a factor.  Indeed if a Daubert-type challenge is raised to a run-of-the-mill injury case, then it may be that none of the Daubert factors set forth below apply.  

To the extent that there is a Daubert-type challenge, there typically would be no need for an evidentiary hearing.  All the court has to determine is whether the testimony is reasonably reliable.  If it is reasonably reliable, then it will pass the Daubert test.  

The same basic standard as applies to any expert evidence applies under the Daubert analysis.  In other words the evidence must assist the fact-finder in understanding the evidence or determining a fact in issue.  United States v. Young, 916 F.3d 368, 379 (4th Cir. 2019)

Facts

Also Daubert stands for the principle that the court will not necessarily be looking at the factual underpinnings of the expert’s opinion.  That goes to the issue of weight and credibility, not necessarily admissibility.  Bresler v. Wilmington Trust Co., 855 F.3d 178, 195 (4th Cir. 2017)

Conclusions

Also the court will not be guided by the conclusions that the expert generates.  Young v. Swiney, 23 F. Supp 3d 596, 611 (D. Md. 2014)  The conclusions are not what govern.  Instead what governs is the method.

In terms of proving compliance with Daubert, the standard of proof is preponderance of the evidence.  Fireman’s Fund Insurance v. Tecumseh Prods. Co., 767 F. Supp 2d 549, 553 (D. Md. 2011)

Factors

Finally what Daubert does is identify certain factors to consider in deciding on the admissibility of expert evidence.  These factors are not intended to be all-inclusive.  The Supreme Court in Daubert and then later in General Electric v. Joiner, 522 U.S. 137, 146 (1997) and then in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148 (1999) laid out ten (10) factors.  They are:

• Can the theory or technique be (and has been) tested.
• Whether a theory or technique has been subjected to peer review and publication.
• Whether a particular scientific technique has a known or potential rate of error.
• The existence and maintenance of standards and controls.
• Is the theory or technique generally accepted.
• Whether experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying.
• Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion.
• Has the expert adequately accounted for obvious alternative explanations.
• Whether the expert is being as careful as he (or she) would be in his (or her) regular professional work outside his (or her) paid litigation consulting.
• Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.

It may be that in some Daubert-type motions, all ten of those factors may apply.  It may also be that none of them apply.  Again the goal is to eliminate junk science from the courtroom.

Affirmative Daubert Motions

In some cases it may be worthwhile to file an affirmative Daubert motion asking the court to affirm that your expert designation passes the basic test of reliability.

The purpose of such a motion is to preempt the defense motion to the contrary.  

Call, or contact us for a free consult. Also for more info on experts see the Wikipedia pages. Also see the post on this site dealing with expert issues.