Standards for Qualifying An Expert Witness: Daubert or Frye?
There are a number of standards a state may follow when it comes to qualifying expert witnesses, from Daubert v. Merrel Dow Pharmaceuticals to the older Fyre standard just to name two. In this article, we will discuss some standards key states have chosen.
Though the Daubert standard is undoubtedly the most prevalent in federal courts and a majority of states, a number of states have begun to branch off by combining Daubert with Fyre, continuing with Fyre, or even deciding on their own methods for evaluating expert witnesses. When qualifying one’s own expert witness, it is crucial to recognize and understand the specific state’s standards.
Which standard to use when qualifying expert witnesses:
Daubert or Frye?
Daubert Plus Others: New Jersey and Nevada
Some states have decided to expand Daubert by using the case as the main influence and then bringing in other practices from other standards. Nevada and New Jersey fall under this unique practice.
Following In re Accutane Litig., 234 NJ 340 (2018), New Jersey switched to a standard that held more in keeping with Daubert than with Fyre, which is what the state had been practicing before. Before In re Acutane New Jersey had required that the party presenting the expert’s work show general acceptance within the scientific community.
Presently New Jersey’s standard requires a more rigorous search into the expert’s findings and proposed testimony. Attorneys handling cases in New Jersey will face more demanding challenges based on the applicability of the expert’s reasoning and methods to the case at hand, any analytical gaps in the expert’s data and opinions, and any cherry-picking of evidence to paint a different picture than the generally accepted model.
Nevada’s admissibility requirements are laid out in Nevada Revised Statute 50.275. It states that if technical or scientific testimony will aid the trier of fact, then a specialist in that field may testify to "matters within the scope of such knowledge."
In Higgs. v. State, 222 P.3d 648 (Nev. 2010), the state Supreme Court put forth that when deciding to admit the testimony, the trial court must consider the testimonies qualification, assistance, and limited scope requirements.
The court may also consider if the expert’s opinion is:
- Within a recognized field of expertise,
- Testable and has been tested,
- Published and subjected to peer review,
- Generally accepted in the scientific community (not always determinative), and
- Based on more particularized facts rather than assumption, conjecture, or generalization.
Combined Standards: California and Minnesota
Several states have taken both Daubert and Fyre standards and incorporated elements of both. California and Minnesota fall under this category.
Before 2012 California followed a standard called ‘Fyre-Kelly’, which put forth that expert testimony would be admissible as long as it was "generally acceptable" within the scientific community. However, the California Supreme Court changed the state’s approach in 2012. Following Saragon Enterprises, Inc. v. University of Southern California, 55 Cal. 4th 747 (2012) the state Supreme Court confirmed the requirement for trial judges to increase their discretion over expert testimony while also empowering them to reject expert evidence for more reasons than merely "general acceptance". Now California courts implement this rule in a method more in keeping with Daubert than Fyre.
Minnesota practices two sets of standards. The first is Fyre-Mack, a standard which applies only when "novel and scientific evidence" is at stake. The state's supreme court reaffirmed in Doe v. Archdiocese of St. Paul, 817 N.W.2d 150 (Minn. 2012). Fyre-Mack requires a two-prong test that must be passed to admit novel or untested scientific evidence.
Fyre-Mack first asks “whether experts in the field widely share the view that the results of scientific testing are scientifically reliable”. It goes on to question “whether the laboratory conducting the tests in the individual case complied with appropriate standards and controls”. Both are more fully explained in State v. Hull, 788 N.W.2d 91 (Minn. 2010).
There are three rules put forth for other forms of expert testimony in the Minnesota Rule of Evidence 702. In order to admit the expert’s testimony:
- The witness must qualify as an expert,
- the expert’s opinion must have foundational reliability,
- the expert testimony must be helpful to the trier of fact.
Number 3 is known to derive from the Fyre-Mack standard.
Unique Standards: South Carolina
South Carolina has a unique standard of expert witness testimony put forth in State v. Jones, 259 S.E.2d 120 (S.C. 1979) and affirmed in State v. White, 643 S.E.2d 607 (S.C. Ct. App. 2007).
In the Jones standard, the trial court looks at four factors when considering the admissibility of testimony:
- Scientific methodology
- Peer review
- General acceptance
- Rate of error
The expert is assessed to determine whether they have “acquired by study or practical experience such knowledge of the subject matter of his testimony as would enable him to give guidance and assistance to the jury in resolving a factual issue which is beyond the scope of the jury’s good judgement and common knowledge,” per State v. Council, 515 S.E.2d 508 (S.C. 1999). With Council, the court may also assess if the expert’s methods were subjected to peer review, published, or have a "known potential rate of error". The court may also study the standards that pertained to the expert’s techniques.
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