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'Gatekeeping' Expands in Two Jurisdictions

By Christopher W. Wood
July 30, 2013

Twenty years ago, federal courts came under new rules for admissibility of expert scientific testimony from the U.S. Supreme Court decision, Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). The decision made clear that the 70-year-old test of admissibility of experts' opinions relying on “new scientific techniques,” as set forth in Frye v. United States, 293 F. 1013 (1923), no longer controlled in federal courts. Instead, the Daubert court instructed judges to conduct wide-ranging analyses of not just new scientific techniques, but any testimony of scientific, medical and technical knowledge proffered to assist the jury. Judges were to examine not only the scientific principles relied on, but also the validity of the experts' reasoning and derived opinions. Faced with a proffer of expert scientific testimony, judges are to be gatekeepers at the outset of trial to ensure reliable scientific knowledge will be applied. Daubert, 509 U.S. at 592-593.

A Hodgepodge of Results

Over the following 20 years, not every state accepted the Daubert analysis, thereby creating a hodgepodge of state-by-state results for product manufacturers and distributors. By 2010, 35 states had adopted Daubert or a similar test urging Daubert factors as “helpful” or “instructive”; 13 states and the District of Columbia continued to apply Frye; one state was a hybrid; and two states followed neither. James Hunt, Admissibility of Expert Testimony in State Courts, Aircraft Builder Council, Inc. Law Report, Fall 2010, www.aircraftbuilders.com.

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