Martin C. Calhoun
is a partner at the Washington, D.C. law firm Spriggs & Hollingsworth, where
and other expert admissibility issues comprise a significant part of his practice.
Advocate for freedom and justice
2009 Massachusetts Avenue, NW
Washington, DC 20036
Washington Legal Foundation
Vol. 23 No. 37
August 22, 2008
SCIENTIFIC EVIDENCE IN COURT:
, 15 YEARS LATER
Martin C. Calhoun
Fifteen years ago, in
Daubert v. Merrell Dow Pharmaceuticals, Inc.
, 509 U.S. 579 (1993), the Supreme
Court established a new standard for federal courts to apply when evaluating the admissibility of expert
testimony. The Court held that the
“general acceptance” test,
see Frye v. United States
, 293 F. 1013 (D.C.
Cir. 1923), was superseded by the Federal Rules of Evidence.
construed Rule 702 to
impose on federal courts the gate-keeping responsibility of ensuring – before jurors hear expert testimony – that it
is scientifically reliable, as well as relevant in the sense of having a valid scientific connection to the inquiry at
, 509 U.S. at 589-92.
The Supreme Court subsequently re-visited
, holding that the
“abuse of discretion” standard applies when appellate courts review
see General Elec. Co. v.
, 522 U.S. 136 (1997), and that the
test applies to not only testimony based on “scientific”
knowledge, but also testimony based on “technical” and “other specialized” knowledge within the meaning of
see Kumho Tire Co. v. Carmichael
, 526 U.S. 137 (1999).
In 2000, Rule 702 was amended to codify
By requiring that expert testimony meet “exacting standards of reliability,”
, 528 U.S. 440, 455 (2000), the
test has played an important role in minimizing the impact of
junk science on lawsuits adjudicated in federal courts throughout the country.
However, fifteen years after
was decided, juries in many state court lawsuits are exposed to
expert testimony that has not been subjected to
As discussed below, although some states have
been firmly in the
camp for several years and others are relatively recent converts, many states still
A review of judicial opinions applying different admissibility standards shows that this issue
can be important enough to determine the outcome of a lawsuit.
State Courts That Apply
Approximately half of the states apply the
including Georgia, whose Supreme Court recently held that
applies to civil litigation in that state.
Mason v. Home Depot U.S.A., Inc.
, 658 S.E.2d 603 (Ga. 2008).
In 2005, the Georgia General Assembly enacted
tort reform legislation, including a provision that closely tracks Federal Rule of Evidence 702 and specifically
authorizes Georgia courts presiding over civil cases to apply