11-25-09 Frye-in-States-08-22-08calhoun

11-25-09 Frye-in-States-08-22-08calhoun - Legal...

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Martin C. Calhoun is a partner at the Washington, D.C. law firm Spriggs & Hollingsworth, where Daubert and other expert admissibility issues comprise a significant part of his practice. Legal Backgrounder Advocate for freedom and justice ® 2009 Massachusetts Avenue, NW Washington, DC 20036 202.588.0302 Washington Legal Foundation WLF Vol. 23 No. 37 August 22, 2008 SCIENTIFIC EVIDENCE IN COURT: DAUBERT OR FRYE , 15 YEARS LATER by 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 The Court held that the Frye “general acceptance” test, see Frye v. United States , 293 F. 1013 (D.C. Cir. 1923), was superseded by the Federal Rules of Evidence. Specifically, Daubert 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 issue. See Daubert , 509 U.S. at 589-92. The Supreme Court subsequently re-visited Daubert , holding that the “abuse of discretion” standard applies when appellate courts review Daubert rulings, see General Elec. Co. v. Joiner , 522 U.S. 136 (1997), and that the Daubert test applies to not only testimony based on “scientific” knowledge, but also testimony based on “technical” and “other specialized” knowledge within the meaning of Rule 702, see Kumho Tire Co. v. Carmichael , 526 U.S. 137 (1999). In 2000, Rule 702 was amended to codify the Daubert ruling. By requiring that expert testimony meet “exacting standards of reliability,” Weisgram v. Marley Co. , 528 U.S. 440, 455 (2000), the Daubert 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 Daubert was decided, juries in many state court lawsuits are exposed to expert testimony that has not been subjected to Daubert scrutiny. As discussed below, although some states have been firmly in the Daubert camp for several years and others are relatively recent converts, many states still apply the Frye test. 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 Daubert . Approximately half of the states apply the Daubert admissibility test, including Georgia, whose Supreme Court recently held that Daubert applies to civil litigation in that state. See 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
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11-25-09 Frye-in-States-08-22-08calhoun - Legal...

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