By Debora Inman of Law Offices of Gary Green
Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1973) is a landmark case in which the Supreme Court ruled on the proper standard for the admission of expert testimony. Up until this case, it was widely known that the test to be used when making this determination was called “the general acceptance test” and it had been derived from Frye v. United States, 54 App. D. C. 46, 293 F. 1013 (1923). This test, by definition, required the scientific evidence sought to be introduced to be regarded as generally accepted in the field from which it came. Judges utilizing Frye were required to determine where within the spectrum of scientific discovery the evidence sought to be introduced fell. The marker that must have been past was general acceptance within the community, the spectrum being book-ended by recent discovery and hypothesis on one end and uncontroverted known science on the other. So how does a Judge pinpoint an exact moment in time when a crazy idea turns into generally accepted scientific knowledge?
The answer to that question lies within 50 years of jurisprudence between Frye and Daubert. But Daubert did not overturn Frye because the test was too hard to apply. Daubert simply recognized that the introduction of Federal Rules of Evidence eliminated the need for the Frye test. Daubert is a landmark case for its simple instruction to use the Rules of Evidence to guide whether scientific evidence is admissible. The new test that emerges from Daubert is whether the expert is proposing to testify to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue. This requires a preliminary assessment of whether the testimony is scientifically valid and applicable to the facts at issue.
ARKANSAS IMPLEMENTS DAUBERT
The Arkansas Supreme Court officially adopted Daubert in Farm Bureau Mutual Insurance Company v. Foote, 341 Ark. 105 (2000). This is a case about a house fire and the homeowners who collect on their insurance policy. Farm Bureau had many reasons for their belief that they should not have had to pay on the policy, but this discussion focuses on only one: whether the fire was intentionally set.
During the trial phase of Foote, expert testimony was introduced to the jury regarding suspicious origins of the house fire as well as the presence of chemical accelerants being detected by the crime lab. In addition to this testimony, Farm Bureau sought to introduce expert testimony from an investigator from the Arkansas State Police who had utilized a canine during his investigation to sniff out accelerants. The trial court applied the admissibility test from Daubert and denied this proffered testimony.
On appeal, the Supreme Court of Arkansas agreed that the test from Daubert is the applicable standard in Arkansas, thereby officially adopting the U.S. Supreme Court’s ruling. The court in Foote clarified the factors to be considered when applying the Daubert test. One key consideration is whether the scientific theory or technique has been tested, or even can be tested. Another element of note is whether the technique has been subject to peer review through publication. In all practicality, these questions essentially ask, Is the science generally accepted?
The Court applied this test to the accelerant-sniffing dog and found that it did not pass the muster. Farm Bureau, as the proffering party, had the burden of showing the court that this expert had relevant information capable of helping the jury to understand a fact in question. The Court took note that Farm Bureau did not produce or introduce the study upon which the dog trainer’s techniques and training were based. Perhaps introduction of the study would have changed the ruling on this proffered expert. If the Court and opposing counsel had access to the study on which the proffered science was based, an examination could be made into the techniques used and the potential for error. Without the study, how can the Court determine whether the method or theory has been subject to peer review, or tested in any way?
When proffering scientific expert testimony in Arkansas, the practitioner must first ask the question, Is it relevant? The propounding party must analyze their proffered evidence under Arkansas Rules of Evidence 401, 402, and 403. Does the proffered evidence have a tendency to make the existence of any fact that is of consequence more or less probable? Everybody knows that all evidence that helps your case is by nature prejudicial to the other side. But the Judge must determine if the probative value outweighs the prejudicial effects. Additionally, when scientific evidence is proffered, the Court must consider the connection between the testimony proposed and the fact intended to be proven. The Court will try to determine if the proffered evidence is likely to confuse or mislead the jury when making this decision. And probably the most important thing the Court will consider is the reliability of the proffered evidence. The propounding party must convince the Court of reliability with evidence of peer review, sound methodology, and low likelihood of error.
So even though the holding of Frye is long overturned, the reasoning is still sound. Many of the elements analyzed under the Daubert test essentially ask the same crucial question: Is the science generally accepted?