Using <i>Daubert</i> on Cross-Examination

When one tells lawyers from other jurisdictions that New York has yet to adopt the Daubert approach to determining the admissibility of expert evidence, one is met with raised eyebrows, dropped jaws and the occasional acerbic inquiry of whether travel to New York requires a map or a time machine. Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Yet the enlightenment of Daubert's reliability analysis is beginning to pierce the fog of Luddism that has for so long enveloped the landscape of New York jurisprudence. This article addresses recent indications that Daubert is gaining ground in New York, as well as its current utility as a potent weapon on cross-examination of expert witnesses who are such common fixtures in the domestic relations courtroom.