Digital Forensics. assignment 15

ADMISSIBILITY OF EXPERT TESTIMONY IN STATE COURTS

By: James W. Hunt1

I. INTRODUCTION

Given the technical and engineering complexity involved in the litigation of aviation lawsuits, the admission and presentation of testimony by experts in many different disciplines is essential. This is true for both plaintiffs and defendants, and the ‘‘battle of the experts’’ is thus an important part of almost every aviation trial, particularly one involving product liability issues. The admission of a defendant’s expert testimony is crucial to the defense, of course, but the exclusion or limitation of a plaintiff’s expert testimony can also be a highly effective tool. It is no wonder, then, that litigants prosecuting or defending aviation lawsuits regularly bring—and vigorously press—challenges to exclude expert testimony under the jurisdiction’s applicable evidentiary rules.2 While standards governing the admissibility of expert testimony are well-settled in federal courts, state courts often apply different tests for determining the admissibility of expert testimony. State court litigants should, therefore, be aware of the evidentiary standard that will apply to their case.

This article will briefly review the applicable standards controlling the admission and exclusion of expert testimony in federal court, and will then survey the current rules in the various state courts. The guidelines discussed in this article chiefly pertain to the subject of the reliability of the methodology supporting the

1 Thanks to Los Angeles summer associate Jennifer Vagle, Pepperdine University School of Law, for her assistance in preparing this article.

2 For recent challenges to expert testimony in aviation cases, see Eberli v. Cirrus Design Corp., 615 F. Supp. 2d 1357 (S.D. Fla. 2009); In re Air Crash at Lexington, Ky., Aug. 27, 2006, 2009 WL 1764738 (E.D. Ky. 2009); In re Cessna 208 Series Aircraft Prods. Liab. Litig., 2009 WL 1357234, 2009 WL 2912611, 2009 WL 3756980, 2009 WL 1272139, 2009 WL 1649773, 2009 WL 3190458 (D. Kan. 2009).

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proffered evidence. In addition, the qualifications of the proposed expert in the pertinent field of expertise, and the relevancy of the offered evidence to the case need be established by the proponent of expert evidence. These areas also offer opportunities for attacking the opponent’s case by excluding the evidence on grounds of lack of expert qualification of the witness or lack of relevance of the testimony to the facts of the case.

II. THE ADMISSIBILITY OF EXPERT TESTIMONY: FROM Frye TO Daubert

In 1923, the U.S. District Court for the District of Columbia announced the Frye test, which required a proponent of scientific evidence to establish that the expert witness’s theory and method were generally accepted within the relevant scientific community. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). In Frye, the court explained:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, 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, 293 F. at 1014. Essentially, the Frye test involves a two-step analysis: (1) defining the relevant scientific community, and (2) evaluating the testimony and publications to determine the existence of a general consensus. At its core, the purpose of the Frye test is to ensure that ‘‘the scientific theory or discovery from

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which an expert derives an opinion is reliable.’’ Hildwin v. State, 951 So. 2d 784 (Fla. 2006).

Although criticized, the Frye test was adopted by many states and federal courts, remaining the dominant test until 1993, when the U.S. Supreme Court announced a new standard for determining the admissibility of scientific evidence in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In Daubert, the Court reviewed the Frye test ‘‘in light of sharp divisions among the courts regarding the proper standard for the admission of expert testimony’’ and held that Federal Rule of Evidence 702 (‘‘FRE 702’’) superseded the Frye test. Id. at 585–87.

Establishing a ‘‘gate keeping’’ role for the trial judge, the Daubert Court identified several factors to be considered in determining the admissibility of scientific evidence. Id. at 592-94. The Court retained ‘‘general acceptance’’ within the relevant scientific community as one factor, but it was no longer the exclusive test for determining admissibility; additional factors to be considered include whether the method can and has been tested, whether it has been subjected to peer review and publication, and the known or potential error rate. Id. at 593-94. Emphasizing the new standard’s flexibility, the Court explained that ‘‘[i]ts overarching subject is the scientific validity and thus the evidentiary relevance and reliability of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.’’ Id. at 594–95.

Because the Daubert decision was based on the language of FRE 702, rather than constitutional grounds, states were not required to adopt its standard for the admissibility of expert testimony. Since Daubert, some states have continued to apply Frye, others have explicitly rejected Frye and adopted the more liberal Daubert standards or a similar test, and others still have adhered to their own unique tests.

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III. A COMPARISON OF STATE APPROACHES

Fourteen states3 and the District of Columbia continue to apply Frye or a similar test. See Appendix A. State courts applying Frye have clarified their interpretations of the scope of the test. For instance, in State v. Gregory, the Washington Supreme Court explained that ‘‘[b]oth the scientific theory underlying the evidence and the technique or methodology used to implement it must be generally accepted in the scientific community for evidence to be admissible under Frye.’’ 147 P.3d 1201, 1238 (Wash. 2006). Florida has explicitly distinguished the methods to be evaluated under Frye from the conclusions reached using such methods: ‘‘when the expert’s opinion is based upon generally accepted scientific principles and methodology, it is not necessary that the expert’s deductions based thereon and opinion also be generally accepted as well.’’ U.S. Sugar Corp. v. Henson, 823 So. 2d 104, 109-10 (Fla. 2002). California’s version of the Frye test even permits ‘‘general acceptance’’ to be established as a matter of law: ‘‘Once a published appellate decision has affirmed admission of a scientific technique, the technique’s general acceptance [is] established as a matter of law. Further hearings on general acceptance [are] unnecessary ‘at least until new evidence is presented reflecting a change in the attitude of the scientific community.’’’ People v. Doolin, 198 P.3d 11, 53 (Cal. 2009) (quoting People v. Kelly, 549 P.2d 1240, 1245 (Cal. 1976)).

3 Because Michigan applies a hybrid test which combines the Frye and Daubert tests for purposes of determining the admissibility of testimony based on science, Michigan is included both in the list of states applying Frye and in the list of states applying Daubert. See Clerc v. Chippewa County War Mem’l Hosp., 729 N.W.2d 221, 221 (Mich. 2007) (explaining that ‘‘the court ‘shall’ consider all of the [Daubert] factors listed in MCL 600.2955(1). If applicable, the proponent must also satisfy the requirement of MCL 600.2955(2) to show that a novel methodology or form of scientific evidence has achieved general scientific acceptance among impartial and disinterested experts in the field.’’).

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Thirty-five states4 have adopted Daubert or a similar test that treats the Daubert factors as ‘‘helpful’’ or ‘‘instructive.’’ See Appendix B. States adopting Daubert often observe that their rules of evidence are ‘‘essentially identical’’ to the federal rules. See, e.g., State v. Brooks, 643 A.2d 226, 229 (Vt. 1993). Other states acknowledge that the relevant state rule of evidence was ‘‘amended explicitly to incorporate Daubert’s standards of reliability.’’ Gilbert v. DaimlerChrysler Corp., 685 N.W.2d 391, 408 (Mich. 2004). Some states decline to expressly adopt Daubert, but set forth similar standards. See, e.g., State v. Council, 515 S.E.2d 508 (S.C. 1999). Others simply acknowledge that Daubert is consistent with their existing interpretation of their rules of evidence. See, e.g., DiPetrillo v. Dow Chem. Co., 729 A.2d 677 (R.I. 1999); Nelson v. State, 628 A.2d 69 (Del. 1993); Hutchinson v. Amer. Family Mut. Ins. Co., 514 N.W.2d 882 (Iowa 1994). Even courts that decline to expressly adopt Daubert often recognize that the Daubert factors are useful to the trial courts. See, e.g., McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 265.

Two states, Virginia and Wisconsin, neither follow Frye nor Daubert, but have instead developed their own unique tests for determining the admissibility of expert testimony. See Appendix C. When presented with novel scientific evidence, Virginia vests broad discretion in the trial court to determine ‘‘whether the evidence is so inherently unreliable that a lay jury must be shielded from it, or whether it is of such character that the jury may safely be left to determine credibility for itself.’’ Spencer v. Commonwealth, 393 S.E.2d 609, 621 (Va. 1990). Wisconsin, on the other hand, applies a relevancy test which does not require any reliability determination: ‘‘Scientific evidence is admissible under the relevancy test regardless of the scientific principle that underlies the evidence.’’ State v. Swope, 762 N.W.2d 725 (Wis. Ct. App. 2008).

4 See, supra, note 2.

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IV. CONCLUSION

While federal courts continue to apply the Daubert standard, state courts vary widely in their tests for determining the admissibility of expert testimony regarding scientific, technical, or other specialized knowledge. Due to the importance of expert testimony to the successful litigation of aviation cases, state court litigants should remain aware of the jurisdictional standard for admission of expert testimony that will apply to their case. Although both Frye and Daubert remain alive and well in state courts, litigants may still benefit from the advice of Judge Wolff of the Supreme Court of Missouri:

Forget Frye. Forget Daubert. Read the statute. Section 490.065 is written, conveniently, in English. It has 204 words. Those straightforward statutory words are all you really need to know about the admissibility of expert testimony in civil proceedings. Section 490.065 allows expert opinion testimony where ‘‘scientific, technical, or other specialized knowledge will assist the trier of fact . . . .’’

State Bd. of Registration for Healing Arts v. McDonagh, 123 S.W.3d 146 (Mo. 2003) (en banc) (Wolff, J., concurring in part and dissenting in part).

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APPENDIX A

STATES CONTINUING TO APPLY THE FRYE TEST

State Post-Daubert Case Retaining Frye or Similar Test

Alabama5 Courtaulds Fibers, Inc. v. Long, 779 So. 2d 198 (Ala. 2000)

Arizona Logerquist v. McVey, 1 P.3d 113 (Ariz. 2000)

California6 People v. Leahy, 882 P.2d 321 (Cal. 1994)

District of Columbia Bahura v. S.E.W. Investors, 754 A.2d 928 (D.C. 2000)

Florida Flanagan v. State, 625 So. 2d 827 (Fla. 1993)

Illinois People v. Basler, 740 N.E.2d 1 (Ill. 2000)

Kansas Pullen v. West, 92 P.3d 584 (Kan. 2004)

Maryland7 Hutton v. State, 663 A.2d 1289 (Md. 1995)

Michigan8 Gilbert v. DaimlerChrysler Corp., 685 N.W.2d 391 (Mich. 2004)

Minnesota Goeb v. Tharaldson, 615 N.W.2d 800 (Minn. 2000)

New Jersey9 Hisenaj v. Kuehner, 942 A.2d 769 (N.J. 2008)

New York People v. Wesley, 633 N.E.2d 451 (N.Y. 1994)

North Dakota Fargo v. McLaughlin, 512 N.W.2d 700 (N.D. 1994) (continuing to apply Frye); but see State v. Hernandez, 707 N.W.2d 449, 461 (N.D. 2005) (Crothers, J., concurring) (urging the adoption of Daubert)

Pennsylvania Grady v. Frito-Lay, Inc., 839 A.2d 1038 (Pa. 2003)

Washington State v. Riker, 869 P.2d 43 (Wash. 1994)

5 Alabama’s version of the Frye test, known as the ‘‘Perry/Frye test,’’ was adopted in Perry v. State, 586 So. 2d 242 (Ala. 1991).

6 California’s slightly modified version of the Frye test, known as the ‘‘Kelly/Frye test,’’ was adopted in People v. Kelly, 549 P.2d 1240 (Cal. 1976).

7 Maryland’s version of the Frye test, known as the ‘‘Frye-Reed test,’’ was adopted in Reed v. State, 391 A.2d 364 (Md. 1978).

8 Michigan’s version of the Frye test, known as the ‘‘Davis-Frye test,’’ was adopted in People v. Davis, 72 N.W.2d 269 (Mich. 1955).

9 New Jersey’s admissibility test, which is similar to the Frye test, is discussed in State v. Kelly, 478 A.2d 364 (N.J. 1984).

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APPENDIX B

STATES APPLYING DAUBERT OR A SIMILAR TEST

State Test Explanatory Case Law

Alaska State v. Coon, 974 P.2d 386 Samaniego v. City of (Alaska 1999) (adopting Kodiak, 80 P.3d 216 (Alaska Daubert) 2003) (identifying factors

for relevance and reliability)

Arkansas Farm Bureau Mut. Ins. Co. Graftenreed v. Seabaugh, of Ark. V. Foote, 14 S.W.3d 268 S.W.3d 905 (Ark. 2007) 512 (Ark. 2000) (adopting (Daubert factors only Daubert) applicable to novel

evidence, theory, or methodology)

Colorado People v. Shreck, 22 P.3d 68 Shreck (trial court may, but (Colo. 2001) need not, consider Daubert

reliability factors)

Connecticut State v. Porter, 698 A.2d 739 Message Ctr. Mgmt., Inc. v. (Conn. 1997) (adopting Shell Oil Prods. Co., 857 Daubert) A.2d 936 (Conn. 2004)

(identifying factors for reliability)

Delaware Nelson v. State, 628 A.2d 69 M.G. Bancorporation, Inc. v. (Del. 1993) Le Beau, 737 A.2d 513

(Del. 1999) (expanding the application of Daubert to technical and specialized knowledge); New Haverford P’ship v. Stroot, 2001 WL 493216 (Del. 2001) (trial court has flexibility in deciding whether Daubert reliability factors are appropriate)

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State Test Explanatory Case Law

Georgia Mason v. Home Depot USA, Mason (finding it ‘‘proper 658 S.E.2d 603 (Ga. 2008) to consider and give weight

to constructions placed on the federal rules by federal courts when applying or construing a statute based on those rules’’)

Hawaii State v. Montalbo, 828 P.2d State v. Vliet, 19 P.3d 42 1274 (Haw. 1992) (Haw. 2001) (expressly

declining to adopt Daubert, but finding ‘‘construction of the federal counterparts of the HRE by the federal courts [to be] instructive’’)

Idaho State v. Merwin, 962 P.2d Weeks v. E. Idaho Health 1026 (Idaho 1998) Servs., 153 P.3d 1180 (Idaho

2007) (explaining that Idaho has adopted some, but not all, Daubert standards)

Indiana Steward v. State, 652 N.E.2d McGrew v. State, 682 490 (Ind. 1995) N.E.2d 1289 (Ind. 1997)

(stating that ‘‘Daubert is ‘‘helpful, but not controlling’’)

Iowa Ganrud v. Smith, 206 In re Detention of Holtz, N.W.2d 311 (Iowa 1973) 653 N.W.2d (Iowa Ct. App.

2002) (identifying factors that trial courts may consider, at their discretion, in determining admissibility of expert testimony)

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State Test Explanatory Case Law

Kentucky Mitchell v. Commonwealth, Toyota Motor Corp. v. 908 S.W.2d 100 (Ky. 1995) Gregory, 136 S.W.3d 35 (Ky. (adopting Daubert) 2004) (identifying a

non-exclusive list of factors for determining admissibility of expert testimony)

Louisiana State v. Foret, 628 So. 2d State v. Williams, 974 So. 2d 1116 (La. 1993) 157 (La. Ct. App. 2008) (adopting Daubert) (identifying relevant factors

for determining admissibility of expert testimony)

Maine State v. Williams, 388 A.2d Searles v. Fleetwood Homes 500 (Me. 1978) of Pa., Inc., 878 A.2d 509

(Me. 2005) (identifying reliability factors)

Massachusetts Commonwealth v. Lanigan, Commonwealth v. Patterson, 641 N.E.2d 1342 840 N.E.2d 12 (Mass. 2005) (Mass. 1994) (general acceptance in the

relevant community is, on its own, sufficient to establish reliability regardless of other Daubert factors)

Michigan Gilbert v. DaimlerChrysler Edry v. Adelmani, --- Corp., 685 N.W.2d 391 N.W.2d --- (Mich. 2010) (Mich. 2004) (acknowledging that Mich.

R. Evid. 702 incorporates the Daubert standards of reliability)

Mississippi Miss. Transp. Comm’n v. McLemore (stating that the McLemore, 863 So. 2d 31 Daubert factors are (Miss. 2003) ‘‘helpful, not definitive’’)

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State Test Explanatory Case Law

Missouri State Bd. of Registration for McDonagh (indicating that Healing Arts v. McDonagh, Daubert provides useful 123 S.W.3d 146 (Mo. 2003) guidance in interpreting (en banc) and applying

section 490.065, but where the approaches differ, the statute’s standard must govern)

Montana State v. Moore, 885 P.2d 457 Hulse v. State, Dept. of (Mont. 1994) (adopting Justice, Motor Vehicle Div., Daubert) 961 P.2d 75 (Mont. 1998)

(Daubert standard should be limited to novel scientific evidence); State v. Price, 171 P.3d 293 (Mont. 2007) (identifying factors for determining admissibility of expert testimony)

Nebraska10 Schafersman v. Agland Carlson v. Okerstrom, 675 Coop, 631 N.W.2d (862 N.W.2d 89 (Neb. 2004) (Neb. 2001) (adopting (identifying factors for Daubert) determining admissibility of

expert testimony)

Nevada Krause Inc. v. Little, 34 P.3d Higgs v. State, 222 P.3d 648 556 (Nev. 2001) (Nev. 2010) (expressly

rejecting Daubert and the ‘‘rigid application of its factors,’’ but finding it to be persuasive authority)

New Baker Valley Lumber, Inc. v. Baker Valley Lumber Hampshire Ingersoll-Rand Co., 813 (discussing reliability

A.2d 409 (N.H. 2002) factors) (adopting Daubert)

10 In Schafersman, Nebraska adopted the Daubert standard for trials commencing on or after October 1, 2001. For trials commencing prior to that date, Nebraska continued to apply the Frye test.

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State Test Explanatory Case Law

New Mexico State v. Alberico, 861 P.2d Alberico (identifying factors 192 (N.M. 1993) for determining

admissibility of expert testimony)

North Carolina State v. Goode, 461 S.E.2d Howerton v. Arai 631 (N.C. 1995) Helmet, Ltd., 597 S.E.2d

674 (N.C. 2004) (identifying reliability factors, but expressly rejecting Daubert); State v. Ward, --- S.E.2d --- (N.C. 2010) (stating that the Goode test does not require Daubert’s thorough scrutiny of an expert’s scientific method)

Ohio Miller v. Bike Athletic Co., Terry v. Caputo, 875 N.E.2d 687 N.E.2d 735 (Ohio 72 (Ohio 2007) (identifying 1998) reliability factors)

Oklahoma Christian v. Gray, 65 P.3d Christian (Daubert standard 591 Okla. 2003) (adopting is applicable to all expert Daubert) testimony—not just

scientific testimony)

Oregon State v. O’Key, 899 P.2d 663 State v. Southard, 218 P.3d (Or. 1995) (adopting 104 (Or. 2009) (identifying Daubert in part) factors for determining

admissibility of scientific evidence)

Rhode Island State v. Wheeler, 496 A.2d In re Mackenzie C., 877 1382 (R.I. 1985) A.2d 674 (R.I. 2005)

(identifying reliability factors)

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State Test Explanatory Case Law

South Carolina State v. Council, 515 S.E.2d State v. White, 676 S.E.2d 508 (S.C. 1999) 684 (S.C. 2009) (extending

courts’ gate keeping role to nonscientific evidence to be admitted under S.C. R. Evid. 702)

South Dakota State v. Hofer, 512 N.W.2d State v. Lemler, 774 N.W.2d 482 (S.D. 1994) (adopting 272 (S.D. 2009) (identifying Daubert) reliability factors)

Tennessee McDaniel v. CSX McDaniel (indicating that Transp., Inc., 955 S.W.2d Tenn. R. Evid. 702 257 (Tenn. 1997) encourages Tennessee

‘‘courts to take a more active role’’ in evaluating testimony; identifying reliability factors)

Texas E.I. du Pont de Robinson (identifying Nemours & Co. v. Robinson, reliability factors); 923 S.W.2d 549 (Tex. 1995) Gammill v. Jack Williams (adopting Daubert) Chevrolet, Inc., 972 S.W.2d

713 (Tex. 1998) (applying Tex. R. Evid. 702 to all expert testimony—not just scientific or technical testimony)

Utah State v. Rimmasch, 775 P.2d State v. Crosby, 927 P.2d 388 (Utah 1989) 638 (Utah 1996) (although

similar to Daubert, the more restrictive Rimmasch approach is the proper admissibility standard in Utah)

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State Test Explanatory Case Law

Vermont State v. Brooks, 643 A.2d 985 Assocs., Ltd. V. Daewoo 226 (Vt. 1993) Elecs. Amer., Inc.,945 A.2d (adopting Daubert) 381 (Vt. 2008) (‘‘the trial

court’s inquiry into expert testimony should primarily focus on excluding ‘junk science’—because of its potential to confuse or mislead the trier of fact— rather than serving as a preliminary inquiry into the merits of the case’’)

West Virginia Wilt v. Buracker, 443 S.E.2d Watson v. INCO Alloys 196 (W. Va. 1994) Int’l, Inc., 545 S.E.2d 294 (adopting Daubert) (W. Va. 2001) (finding that

courts should only apply the Wilt gatekeeper analysis to scientific, rather than technical, testimony)

Wyoming Bunting v. Jamieson, 984 Chapman v. State, 18 P.3d P.2d 467 (Wyo. 1999) 1164 (Wyo. 2001) (adopting Daubert) (explaining that if an

expert’s methodology is reliable, the court must then determine whether the testimony ‘‘fits’’ the facts of the case)

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APPENDIX C

STATES FOLLOWING NEITHER FRYE NOR DAUBERT

State Test Rejection of Frye and Daubert

Virginia Spencer v. Commonwealth, O’Dell v. Commonwealth, 393 S.E.2d 609 (Va. 1990) 364 S.E.2d 491 (Va. 1988)

(declining to adopt the Frye test); John v. Im, 559 S.E.2d 694 (Va. 2002) (leaving open for future consideration the question of whether Virginia should adopt the Daubert analysis)

Wisconsin State v. Walstad, Watson v. State, 219 N.W.2d 351 N.W.2d 469 (Wis. 1984) 398 (Wis. 1974) (rejecting the

Frye test); State v. Fischer, 778 N.W.2d 629 (Wis. 2010) (declining to adopt a Daubert-like approach)