Application of Daubert Is a Puzzle

Recognizing that a wide range of practical and helpful material appears in the newsletters prepared by committees of the International Association of Defense Counsel, this department highlights interesting topics covered in recent newsletters and presents excerpts from them. Application of Daubert Is a Puzzle Writing in the June newsletter of the Drug, Device and Biotech Committee, Jack D. Maroney of the Austin, Texas, office of Locke Purnell Rain and Harrell, with the assistance of B. Keith Ingram and John R. Nelson, finds a jungle of decisions on the issue: In 1993, the U.S. Supreme Court decided Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579, and began a revolution in how trial courts evaluate the admissibility of expert testimony. There is general consensus among the courts that the Court displaced the 1923 Frye test (293 F. 1013) regarding the admissibility of scientific expert testimony. But the Court left unresolved the issue of whether Daubert should applied to all expert testimony, including that based on expertise in the soft sciences and expertise gained through experience and training, or whether it should applied only to expert testimony based on expertise in the hard sciences. Court stated in footnote 8, 702 also applies to `technical or other specialized knowledge.' Our discussion is limited to the scientific context because that is the nature of the expertise offered here. Most of the federal courts of appeal have directly addressed this issue. Several have either held, explicitly or impliedly, that the Daubert criteria apply to all expert testimony; others have explicitly held that the applicability of those criteria is limited to hard-science expert testimony. At least one circuit has grafted a Daubert-like threshold inquiry onto Rule 702 of the Federal Rules of Evidence to test the admissibility of all expert testimony. Circuits applying Daubert Since the Supreme Court in Daubert noted that its opinion was limited by the facts before it to the consideration of scientific expert testimony only, it declined to comment regarding expert testimony outside the scientific context. Third, Seventh and Eighth Circuits have interpreted the Court's opinion in Daubert to apply to all expert testimony. Kannankeril v. Terminix International Inc., 128 F.3d 802, 807 (3rd Cir. 1997); Tyus v. Urban Search Management, 102 F.3d 250, 263 (7th Cir. 1996); Peitzmeier v. Hennessy Industries Inc., 97 F.3d 293, 297 (8th Cir. 1996), cert. denied, 117 S.Ct. 155 (1997), followed in Dancy v. Hyster Co., 127 F.3d 649, 652 (8th Cir. 1997), cert. denied, 118 S.Ct. 1186 (1998). Additionally, the District of Columbia Circuit has applied Daubert to nonscientific expert testimony regarding lost wages. Joy v. Bell Helicopter Textron Inc., 999 F.2d 549, 567-70 (D.C. Cir. 1993). In Kannankeril, the Third Circuit applied Daubert to expert testimony based on experience and training, specifically to the admissibility of a doctor's differential diagnosis as a technique of assessing a patient's medical condition. In Tyus, the Seventh Circuit held that Daubert demands expert testimony be tested to sure that the person possesses genuine expertise in the field and that her court testimony `adheres to the same standards of intellectual rigor that are demanded in [her] professional work.' In fact, the court expressly stated, The Daubert framework is appropriate for all kinds of expert testimony; we do not agree with the Tenth Circuit's decision in Compton v. Subaru of America Inc., 82 F.3rd 1513, 1518-19 (lOth Cir. 1996), that it is limited to cases of novel scientific theories or methodologies. In Dancy, the Eighth Circuit noted that the plaintiff attempted to avoid the effects of Daubert by contending that it does not apply unless the expert's testimony will rely on scientific principles or methods. court stated, We have expressly rejected this argument. …