| Frye v. United States,
293 F. 1013, 1014 (D.C.Cir. 1923) held, in the context of a case involving
the admissibility of opinion evidence based upon use of a precursor of the
polygraph, that scientific evidence would be admissible only after the
thing from which the deduction is made had been sufficiently established
to have gained general acceptance in the particular field in which it
belongs. This decision was the birth of what ultimately became known
alternatively as the Frye test or the general acceptance test.
While ignored initially by other courts, the Frye test would, by
the end of the 1990's, become the majority test for the admissibility of
novel scientific evidence. This was true in the federal courts as well as
in the states, despite the passage in 1975 of Federal Rule of Evidence
702, which was believed by some courts to embody a more flexible general
relevance test for admissibility of opinion testimony by expert witnesses.
In 1993, however, the United States Supreme Court
handed down the very significant decision of Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579 (1993). In Daubert, the Court
stated that evidence based on novel scientific knowledge should be
admissible only after it had been established that the evidence was
reliable and scientifically valid. Furthermore, the Court cast upon the
trial judges the duty to act as gatekeepers charged with preventing junk
science from entering the courtroom. In order to assist the judges in
fulfilling that role, Daubert discussed four factors: testing, peer
review, error rates, and acceptability in the relevant scientific
community. These four tests for reliability became known as the Daubert
factors.
In 1997, in General Electric v. Joiner, 522 U.S. 136
(1997), the Court amplified its Daubert holding by adding that in
reviewing the decision of a trial court to either admit or deny admission
of certain expert testimony, whether on the issue of the judge's
determination of reliability/ unreliability, or on the ultimate conclusion
reached by an expert, a court of appeals must use an abuse-of-discretion
standard.
In the aftermath of Daubert, several issues remained
unresolved and courts reached differing conclusions on these questions.
One uncertainty was generated by the language used by the Court in
defining scientific knowledge and by identifying four specific factors by
which reliability of such knowledge was to be determined. The Court
adopted a definition of scientific knowledge that was drawn from the
physical sciences, and the Daubert factors, it was widely argued, were not
suitable for many other types of expert testimony that depended more on
skill, generalized knowledge and experience, technical prowess, or even on
applied science and/or clinical judgment. Another unresolved issue was
whether a Daubert inquiry would even be required at all when a court was
dealing with non-scientific expert opinion evidence, or when a particular
technique already had gained widespread judicial acceptance.
 On
March 23, 1999, the United States Supreme Court significantly enlarged the
Daubert holding in the case of Kumho Tire Co. v. Carmichael, No. 97-1709.
In Kumho Tire, the Court held that the Daubert
factors Amay apply to the opinion testimony of non-scientist expert
witnesses. The Kumho Tire case was a diversity action against the
maker and distributor of an automobile tire. The tire had blown out, which
caused the minivan on which it was mounted to turn over. In the accident,
one passenger died and others were injured.
The plaintiffs sought to make their case through the
testimony of a tire failure analyst who wanted to testify that a defect in
the tire's design or manufacture caused the blowout. The defendants sought
to exclude the expert's evidence on the ground that the methodology did
not satisfy Federal Rule of Evidence 702's requirements. The district
court, applying the Daubert factors, agreed with defendants and granted
the motion. It also entered summary judgment for defendants. While there
were some intermediate procedural steps, the case ultimately reached the
United States Supreme Court on the issue of whether Daubert applied only
to expert evidence that was based on scientific knowledge.
Without equivocation, the Court held that the
obligation imposed on trial judges by Daubert to act as gatekeepers
applies not only to scientific testimony, but it applies to all expert
opinion testimony. In order to fulfill its gatekeeping responsibility, a
court Amay use the factors identified in Daubert IF they can be
appropriately utilized to determine reliability of either the underlying
technique or the expert's conclusions. But since Daubert clearly
stipulated that the inquiry it asks trial judges to undertake is a
flexible one, the gatekeeping function of necessity must be tied to the
particular facts of a case. Thus, the factors identified in Daubert are
not supposed to be talismanic, nor do they constitute a definitive
checklist or litmus test.
In this newest decision, the Court continued to grant
trial judges a broad latitude of discretion. The Court permits trial
judges to apply any and all useful factors, whether identified in Daubert
or elsewhere, that will assist the tribunal in making a determination of
reliability of proffered evidence as deemed appropriate in the particular
case.
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