Is Daubert Now A Dirty Word?

March 21, 2022American Bar Association

In the 1990s, Daubert and its progeny ushered in a new day regarding the standard for expert admissibility in federal courts. Gone was the Frye “general acceptance” test for determining the admissibility of expert testimony. Daubert was hailed by many (though not all) as a more rigorous standard, which declared “[i]n a case involving scientific evidence, evidentiary reliability will be based upon scientific validity.”

Confusion arose quickly, however, about whether some of the language contained in Daubert should be interpreted as establishing a strict or lenient standard. As a result, Rule 702 was amended in 2000 (the “2000 Amendments”), “for the express purpose of resolving conflicts in the courts about the meaning of Daubert.” The 2000 Amendments clarified (or so it was thought) that the trial judge is the gatekeeper of admissibility with respect to expert evidence. Moreover, the intent was that trial courts would “scrutinize the factual foundation of expert testimony and the reliability not only of the expert’s methodology but also of the expert’s application of that methodology to the facts at issue.”

To continue reading Michelle Bufano, Rachel Sherman, and Megha Hoon's American Bar Association article on this topic, please click here