DAUBERT By Kevin P. Moriarty

I. Introduction From 1923 until 1993, the federal courts determined the admissibility of expert witness testimony by applying a “general acceptance” test, stemming from Frye v. United States.1 For nearly a century, the Frye standard required an expert’s testimony had to be based on a theory or method that was “generally accepted” in the scientific community in order to be admissible in the federal courts. However, as the Frye standard stood the test of time, it began to show its weaknesses as science rapidly advanced in the 20th century, as it could potentially defeat a case on technical grounds. The general acceptance test is constraining and too general. It places an undue reliance on the approval of a technique or method by a community of sciences and not upon the reliability and relevance of a scientific issue. Daubert sought to make admitting expert testimony less restrictive by determining admissibility on relevance and reliability New scientific techniques and methods are more easily admitted under Daubert and its progeny. II. The Daubert Trilogy In Daubert, the United States Supreme Court held that a trail judge has a duty to scrutinize evidence more rigorously to determine if it meets the requirements of FRE 702, that is, is the expert’s opinion the product of reliable principles and methods. It focuses on using a reliable methodology by an expert to indicate that the overall testimony of that expert is reliable. Daubert is, however, not concerned with:  Expert qualifications;  The sufficiency of the facts or the data relied upon by the expert; or  The application of the expert’s methodology to the facts of the case. The petitioners in Daubert sought review of the lower court’s decision to exclude an expert’s testimony that the drug Benedictin could cause birth defects. The trial court granted summary judgment and the Ninth Circuit Court of Appeals affirmed. The plaintiff-petitioners’ experts had not conducted any studies to support their testimony, but instead relied on studies conducted by other scientists, none of whom had found conclusive connection between the drug and birth defects. The experts’ opinions also did not reflect the “general scientific opinion” in the community regarding the relationship between Benedictin and birth defects. Only one of the petitioner’s experts had conducted original research, but he did not explain his methodology used in his research. The Supreme Court vacated the Ninth Circuit’s decision and remanded, holding that this expert’s testimony could be admitted even if it was not “generally accepted”, as long as the evidence could be shown to be both reliable and relevant to the facts of the case. In Daubert, the Court stated that evidence based on new or unusual scientific knowledge may be admitted only after ti has been established that the evidence is reliable and scientifically valid. The Court imposed upon the Federal district courts a duty to act as “gatekeepers”, charging them to prevent scientific claims supported by junk data out of the courtroom, away from the finder

1 292 F. 1013 (ID.C. Cir. 1923). of fact. To assist the district court judges in their new gatekeeping duty, the Court outlined four factors to consider when determining admissibility:  Can the evidence be empirically tested? Can it be refuted?  Has the theory or technique about which the expert will testify been subjected to peer review or publication?  What is the known or probable error rate of the method or technique used by the expert witness?  Has the theory or technique gained general acceptance in the relevant academic community? The Court expected this test to be applied in a flexible manner with the particular facts of the case in mind. To that end, these four factors are not a definitive litmus test for admissibility. The Supreme Court implicitly restricted the Daubert factors to expert testimony based on scientific theories or methods. Six years later, the Court expanded the use of the Daubert factors to evaluate non-scientific experts in Kumho Tire, Co. Ltd. V. Carmichael, 526 U.S. 137 (1999). In Kumho Tire, plaintiffs sued the tire manufacturer in a products liability action after a blown tire on a minivan resulted in death and injuries. The survivors and decedent’s representative moved to admit testimony of Dennis Carlson, an expert in tire failure analysis, who offered to testify that a defect in the tire caused it to fail. Carlson based his opinion on a visual and physical examination of the tire. He proposed a theory that because the tire did not show any signs of user abuse, then the defect must have been within the tire itself. The Supreme Court excluded Carlson’s testimony because his methodology regarding the tire at issue was unreliable. The Court found that Carlson’s methodology as applied to the facts of the case was questionable. Also, the Court found that none of the Daubert factors indicated that the expert’s testimony was reliable. Even though Carlson claimed that his methodology as applied to the facts of the case was reliable, the Court noted that it is not required to accept the expert’s proffer of reliability at face value.2 The Court also reaffirmed the rule of Daubert that the test is to “make certain that an expert, whether basing testimony on professional studies or personal experience, employs in the court room the same level of intellectual rigor that characterizes the practice of an expert in the field.”3 FRE 702 was amended in 2000 to reflect the holdings of Daubert and its progeny: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”

2 Kumho Tire Co., 526 U.S. at 146. 3 Id. at 152. Since Kumho Tire, the federal appellate courts have held that the Daubert principles apply to accountants, economics experts, and financial experts.4 In some ways, Kumho Tire exposes some weaknesses of the Daubert factors, in that the four factors are based off of the scientific method for hard sciences. Following Kumho Tire, many courts look at the Daubert factors as mere suggestions in determining the reliability of an expert’s theories or techniques. The third case in the Daubert trilogy is General Electric v. Joiner, 522 U.S. 136 (1997), where the Supreme Court reaffirmed the lower court’s role as “gatekeeper” when determining whether or not to allow an expert to testify, and held that the appropriate standard of review for Daubert decisions whether the district court abused its discretion. III. The Daubert Standard in Kansas A. The Statute The Daubert standard is very new in Kansas. In 2014, Kansas amended KSA 60-456(b) to adopt the Daubert Standard: “If scientific, technical, or specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue, a witness who is qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise if: (1) The testimony is based on sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness has reliably applied the principles and methods to the facts of the case.”

B. The Single Daubert Case in Kansas Recently, the Kansas Court of Appeals applied Daubert for the first time in Smart v. BNSF Ry. Co., No. 113,809, 2016 WL 852135 (Kan. Ct. App. 2016). This case arose from a cause of action under the Federal Employers Liability Act. The plaintiff worked for BNSF railway for many years as an electrician. The plaintiff alleged that his working conditions at BSNF caused extensive injuries over time, permanently affecting his muscles, discs, and soft tissues in his neck and arms. Smart planned to call Dr. Tyler Kress as an expert in engineering and ergonomics. After Dr. Kress was deposed, BNSF moved to strike Dr. Kress’s deposition from the record, as well as the causation testimony of Smart’s other physicians. The Court granted the motion, finding that Dr. Kress’s “testimony is so generic that it could apply to almost any worker, in any position, anywhere dealing with a railroad.” When the District Court granted BNSF’s motion to strike, Kansas still applied the Frye standard. After the district court’s decision, the Kansas Legislature amended K.S.A. 60 -456(b) to include the Daubert standard. Thereafter, the District Court granted summary judgment for BNSF,

4 Club Car, Inc. v. Club Car Import, Inc., 362 F.3d 775, 780 (11th Cir. 2004); Lifewise Master Funding v. Telebank, 374 F.3d 971, 979 (10th Cir. 2004); Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768, 793 (6th Cir. 2002). but did not mention the newly adopted Daubert standard. Because the District Court’s ruling to exclude Dr. Kress’s testimony was a pre-trial motion, Daubert was the proper standard to analyze the admissibility of evidence at the time of the summary judgement ruling. First, the Court of Appeals analyzed whether the District Court acted as gatekeeper when deciding to admit or omit expert testimony. The Court found that the lower court did, in fact, act as gatekeeper though reading the briefs on the motion to strike, holding a hearing, and ruling on the reliability of the challenged evidence. It seems that the Daubert standard was creeping in during the waning days of Frye. The Court then turned to whether the lower court abused its discretion in omitting Dr. Kress’s testimony under Daubert. Because of the lack of caselaw following the amendment of KSA 60-456, the Court turned to FRE 702. Factors as applied by the Court of Appeals First, under FRE 702 and KSA 60-456(b) as amended, the Court must decide whether the expert is qualified “by knowledge, skill, experience, training, or education” to render an opinion. Both parties stipulated to Dr. Kress’s qualifications. Second, the Court had to determine whether Dr. Kress’s testimony in the case would be reliable and helpful to a jury. A Court determines how helpful expert testimony is by evaluating whether the testimony is relevant and whether the “methodology properly can be applied to the facts in issue.”5 Specifically, as per K.S.A. 40-456(b), the Court determines if the testimony is based on “sufficient facts or data” and is “the product or reliable principles and mothed” and whether “the witness has reliably applied the principles and methods to the facts of the case.” Third, the Court must determine the reliability of proposed scientific testimony by determining (1) if the theory has been tested, (2) whether the theory has been subject to peer review or publication, or (3) if there is a known or potential rate of error for the theory, and (4) whether the theory has gained widespread acceptance. While the “general acceptance” test is no longer determinative, it lends a great deal of credibility to the theory. Alternatively, an expert may testify on personal knowledge or experience, as Dr. Kress did in this case. To the extend a witness is relying primarily on experience, he or she “must explain how that experience leads to the conclusion reached, and why the experience is a sufficient basis for that opinion and how that experience is reliably applied to the facts.”6 The Court’s Application of Daubert In his deposition, Dr. Kress opined that Smart’s work exposed him to ergonomic risk factors consistent with his neck injury, and that BNSF failed to implement a program to ensure its employees working conditions were properly ergonomic so as to prevent cumulative trauma disorders (CTD). However, there were many issues with Dr. Kress’s testimony. First, when he was asked if he has ever observed a locomotive electrician working, he responded generically that he had worked on numerous matters involving electricians, but often not while they were engaged

5 Summers v. Missouri Pacific R.R. System, 132 F.3d 599, 603 (10th Cir. 1997). 6Siefert v. Unified Gov’t of Wyandotte County, No. 11-2327-JTM, 2016 WL 1070932 at *1–2 (D. Kan. 2016) in their duties. While Dr. Kress could not provide an example of when he had observed an electrician, he was sure he had within the last 20 to 25 years. Dr. Kress also was unsure if he visited the BNSF shop in Topeka where Smart worked, nor did he claim to have ever seen Smart perform his work while at BNSF. It was clear that Dr. Kress was unsure of the job duties for a locomotive electrician. Dr. Kress never met with Smart, and only reviewed his deposition. When Dr. Kress was asked how he would redesign the work environment, he punted the question, saying “I haven’t specifically been asked to do the redesign of this work environment . . . I haven’t gone in to give specific recommendations on use this part or use the Prosecco machine to do this, etc.” Similarly, he refused to offer an alternative ways to redesign electrical work in locomotives. Dr. Kress never gave specific examples of what BNSF did wrong. Dr. Kress alluded to industry literature regarding employee safety controls and that BNSF failed to implement those controls, but he admitted he was not sure if the controls were relevant to the facts of the case (that is, relating to an electrician). While Dr. Kress included approximately 20,000 pages of literature in his report, much of it was outdated, including a report on knee cartilage injuries from 1948. Dr. Kress did not use any clear methodology in coming to his opinions. He did not purport to have conducted any student in accordance with the literature he reviewed to apply the theories to the facts of Smart’s case. The Court ultimately concluded that Dr. Kress’s opinions “were conclusory and were not shown to be supported by scientific evidence or by his experience. Dr. Kress’s testimony, not linked to Smart’s particular work place or the particular tools Smart used, was so general that it lacked reliability and helpfulness to the jury.” Accordingly the Court held that the lower court did not abuse its discretion in excluding Dr. Kress’s testimony under the Daubert standard. IV. How other states apply the Daubert Standard Because the Daubert Standard has only recently been adopted by Kansas, there is little case law on its application in Kansas. There is, however, have a wealth of caselaw from the state and federal courts to guide courts in applying the Daubert Standard. 1. The testimony is based on sufficient facts or data: For any scientific method or technique to be credible, it must be backed by sufficient facts or data and must be based on the facts of the case at hand. Techniques without sufficient data backing the accuracy of scientific methods or techniques leaves open the possibility for a margin of error. Relevant cases: Black v. Food Lion, Inc., 141 F.3d 308 (5th Cir. 1999) – Expert proffered testimony that a slip-and-fall in a grocery store caused the plaintiff to suffer hormonal damage that caused the plaintiff to develop fibromyalgia. The Court noted the evidence that trauma can lead to fibromyalgia is “insufficient to establish causal relationships” and was thus not accepted by the relevant medical community. The expert could not explain the exact process that results in fibromyalgia, or the factors that trigger the condition. Absent of these critical scientific predicates, there cannot be a scientifically reliable conclusion for causation. A very general methodology cannot support a conclusion that lacks medical support. Blanchard v. Eli Lilli & Co., 207 F.Supp.2s 308 (2002) – Proffered expert testimony of a physician relating to general and specific causation of the death of a mother, who allegedly murdered her children and then committed suicide due to Prozac usage, was not sufficiently based on the facts of the case. The opinion that Prozac could lead a user to commit suicide and violent behavior did not support the conclusions that Prozac caused the mother’s loss of control so profound as to cause a double murder-suicide. Miller v. Eldridge, 146 S.W.3d 909 (Kent. 2004) – In a medical malpractice action, the Kentucky Supreme Court held that the trial court did not abuse its discretion in determining that the testimony of a the defendant physician’s expert was relevant under Daubert, where it was alleged that the defendant negligently performed a diagnostic angiography on the patent that caused her death. The expert’s testimony was based on time-tested principles of physics, with which he was very familiar. He addressed both general properties of blood flow and the specific question of whether emboli, or obstructions in the circulatory system, could travel the distance as alleged by plaintiff. In re Viagra Products Liability Litigation, 572 F.Supp.2d 1071 (D. Minn. 2008) – A pharmacist’s reliance on a single case study and inadequate explanation of the Naranjo Scale did not constitute sufficient facts or data for general causation, and thus his testimony based thereon was not reliable and was inadmissible in a product liability action alleging that Viagra caused a vision-loss disorder canned non- artertitic anterior ischemic optic neuropathy (NAION) caused by reduced blood flow to the optic nerve. 2. The testimony is the product of reliable principles and methods: An expert witness’s opinion must be based on a theory or methods that has been backed by reliable principles or methods – that is – theories or methods that have been generally accepted by the relevant academic community, have been peer reviewed, etc. Relevant cases: Heller v. Shaw Industries, Inc., 167 F.3d 146 (3rd Cir. 1999) – Evidence did not support a physician’s reliance on a relationship between the onset of a patient’s respiratory illness and the installation of an allegedly defective carpet in her home to conclude the carpet caused the illness. The patient did not experience symptoms until at least two weeks after the installation, and the symptoms remained after the allegedly defective carpet was removed. For causation evidence to be admissible, a physician’s diagnosis that is based in part on a relationship between a plaintiff’s symptoms and an exposure to an allegedly defective product does not necessarily have to be supported by a statistically significant correlation; what is requires is that the physician had “good grounds for his diagnosis. McClain v. Metabolife Intern., Inc., 401 F.3d 1233 (11th Cir. 2005) – Testimony offered by a pharmacology expert that the subject weight-loss supplement containing ephedrine and caffeine caused spasms and inflammation in blood veins, that in turn caused strokes and heart attacks, and that adding more caffeine to the drug made it more toxic, was unreliable under Daubert in a class action brought by users of the drug that have suffered strokes or heart attacks. The expert drew speculative conclusions about the supplement’s toxicity from questionable principles of pharmacology while at the same time rejecting a main axiom of toxic tort litigation – the dose-response relationship. The expert drew from unsubstantiated analogies between ephedrine and phenylpropanolamine, a drug from the same class as ephedrine, and inappropriately inferred conclusions from reports that were not substantiated within. State v. Giese, 356 Wis.2d 796, 854 N.W.2d 687 (2014) – Testimony of the State’s toxicology expert regarding retrograde extrapolation calculation of the defendant’s blood alcohol concentration was admissible under Daubert in a prosecution for OWI. The expert’s opinion was the product of reliable principles and methods and based on sufficient facts and data. Contrary to the defendant’s claim that the expert’s opinion derived from a single test, the expert derived her opinion from the retrograde extrapolation calculation, the scenario of the incident where it was plausible to infer that the alcohol in the defendant’s system was absorbed into his bloodstream and that he did not drink alcohol after he crashed his car. 3. The witness has reliably applied the principles and methods to the facts of the case: A theory or a method is not relevant for expert testimony unless it has been applied to the facts of the case. This factor charges district courts to keep the jury in mind when determining whether expert testimony is admissible. If the theory has not been reliably applied to the facts of the case, then it may have a tendency to mislead the jury. Relevant cases: Heller v. Shaw Industries, Inc., 167 F.3d 146 (3rd Cir. 1999) – Third Circuit Court of Appeals reversed the lower court’s exclusion of a doctor’s testimony that a patient’s illness was caused by volatile organic compounds emitted by an allegedly defective carpet installed in the patient’s home. The lower court erred in excluding the testimony because it was not grounded in scientific studies. Rather, the doctor’s testimony could be considered reliable if based on other scientifically valid methods. It is not necessary for a medical expert to always cite to a published, peer-reviewed study on general causation to reliably conclude that a particular object caused a particular illness. Flanagan v. Altria Group, Inc., 423 F.Supp.2d 697 (E.D. Mich. 2005) – An economist’s statement detaining the history of the Federal Trade Commission’s regulation of the tobacco market, including restrictions on advertising and promotional materials for cigarettes, was admissible in tobacco litigation, even though the statement did not contain any economic analysis or explain the methodology used, where the economist based his opinion on the FTC policy on is eighteen year long career with the FTC’s Bureau of Economics. In re Baycol Products Litigation, 532 F.Supp.2d 102 (D. Minn. 2007) – When faced with a proffer of scientific expert testimony, a court must engage in a preliminary assessment, pursuant to the Daubert standard, of whether the reasoning or methodology underlying the testimony is scientifically valid and whether the reasoning or methodology can be properly applied to the facts at issue. The methodology underlying the expert’s testimony that statin used in the manufacturer’s cholesterol drug was significantly more toxic than other available statins was not scientifically valid. The expert based his opinion on meta-analysis comparing various statins’ adverse event reports, data that was voluntarily supplied to the drug manufacturer, and information required by the FDA. Under Daubert, the testimony was not admissible in a strict liability action against a drug manufacturer because the adverse event report data contained unreliable, uncontrolled narrative information without proper medical controls or scientific assessment. Buck v. Ford Motor Co., 810 F.Supp.2d 815 (N.D. Ohio 2011) – The expert testified that a defect in the acceleration pedal was an unlikely cause of an accident in a products liability action against the auto manufacturer. The decision of a plaintiff’s expert to rely on published literature and information about the physical evidence at an accident site and to not give credit to a driver’s testimony did not render that expert’s opinion unreliable. Although the expert acted unprofessionally by disregarding all of the driver’s testimony, the driver’s testimony itself was unreliable given many inconsistencies throughout the driver’s testimony. Valente v. Textron, Inc., 931 F.Supp.2d 409 (E.D.N.Y. 2013) – Even a generally accepted simulation program based on the laws of physics and accepted principles of accident reconstruction is not a reliable methodology in all factual circumstances; A court, in its gatekeeping role, must determine if the program is the product of reliable principles and methods with regard to the specific accident in question. An expert proposed to use a computer model against a manufacturer of a golf cart in a case resulting from a roll-over accident that caused significant spine damage to the plaintiff. The expert proposed to testify that the cart’s instability could have been avoided by a different braking system. The Court held that this was inadmissible on a motion for summary judgement. The model that the expert used calculated the yaw when the brakes were applied was based off data from automobiles, not light-weight golf carts. Thus, the methodology used by the expert was unreliable given the facts of the case. RELIABILITY FACTORS The Daubert Court listed four factors to consider when determining whether the subject matter that an expert plans to testify about is scientific (pre-Kumho) or reliable (post-Kumho Tire). The Court in Daubert made it explicitly clear that none of reliability factors is dispositive, and that the Reliability Test is meant to be a flexible test to be determined on a case-by-case basis by applying the factors to both the expert testimony and the facts of the case.7 Reliability of expert testimony can be established in the following ways: 1. Can the evidence be empirically tested? Can the evidence be refuted? The ability to test an expert’s theory, technique or method makes it reliable. If an expert’s technique or method is incapable of being tested, it calls into question the objectivity of the expert’s testimony. Relevant cases: United States v. Mitchell, 365 F.3d 215 (3rd Cir. 2004) – Court of Appeals affirmed the lower court’s decision to admit the government’s expert latent fingerprint identification evidence in a case. The testability of the technique ensued the basic possibility of meaningful cross-examination. The “testability” factor requires that an expert’s theory can be challenged in some objective sense, rather than being a subjective, conclusory approach that cannot be assessed for reliability. Testability is also “falsifiability”. See Daubert, 509 U.S. at 593, 113 S.Ct 2786 (citing Karl R. Popper, Conjectures and Refutations: The Growth of Scientific Knowledge (5th ed. 1989). Proving a statement to be false requires demonstrating an empirical counterexample. Furthermore, the expert is not required to have actually tested the theory. Rather, the theory must merely be testable. LaBarge v. Joslyn Clark Controls, Inc., 2007 WL 27788253 (2nd Cir. 2007) – Court of Appeals held that a District Court that erroneously excluded expert testimony because the expert had not actually tested his theory. The Court opined that the lower court misinterpreted the Daubert standard that only requires that the theory be testable, rather than actually tested. Regardless, the Court of Appeals held that the lower court did not abuse its discretion because his theory was not grounded in sufficient data. Carnegie Mellon Univ. v. Marvell Tech. Group, Ltd., 286 F.R.D. 286 (W.D. Penn. 2012) – An expert’s testimony regarding hard disk drive industry standards was reliable, as required under Daubert in a patent infringement case, although the expert may not have reached his opinion through a testable methodology. Technical analysis to determine what is an industry standard is not required to

7 Daubert, 509 U.S. at 594 (“ withstand a Daubert challenge. The expert relied on his own experience in the industry on forming the basis for his expert opinion. Industry standard is driven by consumer preference of certain products, not solely by the producer of components. Lewis v. State, 256 P.3d 795 (Alaska Ct. App. 2015) – The State, as the proponent of preliminary breath test results, was required to establish scientific foundation for the results in a prosecution of driving under the influence and possession of marijuana. When a party wishes to offer data or results derived from a scientific test or analysis, it is a prerequisite under Daubert that the scientific test or analysis meet the test for admissibility. 2. Has the theory/technique been subjected to peer review or publication? Strictly speaking, peer review occurs whenever a scientist or other academic replicates and tests an experiment or methodology that has the same or substantially similar results as another scientist. For reliability purposes, this ideally would occur in the relevant scientific/academic community on its own, as opposed to within the same laboratory or academic group. The core purpose of peer review is to establish that a technique or methodology is standardized, predictable, and can be applied to several similar circumstances and produce the same results. However, peer review has its own issues. Editorial peer review, the review of journal articles, is vastly unregulated, and the academic rigor of peer review varies from journal to journal. Publication does not necessarily correlate with reliability. However, submitting an article to a publication for scrutiny of a particular academic community increases the likelihood that flaws in a technique or methodology can be found. Relevant cases: Lauzon v. Senco Products, Inc., 270 F.3d 681 (8th Cir. 2001) – The fact that an expert witness performed extensive testing on pneumatic nail guns involve in an accident, along with the fact that he testified as an expert in numerous other cases involving injuries resulting from the use of pneumatic air guns, weighed heavily in favor of admitting his testimony as an expert witness, even though the during his tests, the expert was unable to duplicate the events of the accident as described by the plaintiff. Whether a paper is published in a peer-reviewed journal or not is relevant, but not dispositive consideration when determining whether to admit proposed expert testimony. Even though the proposed expert witness’s expertise relating to pneumatic nail guns has not been extensively reviewed, the witness’s testimony that an alternative designed was safer was bolstered when supported by other independent articles. Rider v. Sandoz Pharmaceuticals Corp., 295 F.3d 1194 (11th Cir. 2002) – In a products liability action for Parlodel, plaintiff’s experts provided dechallenge/rechallenge data to suggest a link between the drug and strokes. A “dechallenge” test is when a drug suspected of causing an adverse reaction is withheld to see if the reaction dissipates. The drug may then be reintroduced in a “rechallenge” to see if the reaction reoccurs. The Court held that the dechallenge/ rechallenge data reports provided by patients’ experts were not reliable to prove causation. By themselves, case reports of patients who suffered injuries subsequent to ingesting a drug cannot prove causation in a pharmaceutical products liability action, though they may support other proof of causation. State v. Griffin, 77 Conn.App 424, 823 A.2d 419 (2003) – Clinical psychologist testified regarding a test she used with the defendant to assess a juvenile’s competency to understand Miranda warnings. The Court found that the psychologist’s testimony was inadmissible. The psychologist’s testimony about peer review of the test was limited, and the psychologist cited no evidence apart from her own personal beliefs that the test had gained general acceptance in the scientific community. The psychologist administered the test only one other time to a juvenile, and this trial was the first time she testified about the test in court. Bitler v. A.O. Smith Corp., 391 F.3d 1114 (10th Cir. 2004) – When an expert plans to testify regarding “new or novel scientific theories”, peer review is the most relevant factor to determine if the theory is reliable. The Court states that the Daubert factors, especially the one inquiring about peer review, “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relative field.” Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 39 (Tex. 2007) – Even if the principles or techniques used by experts are ordinarily sound, his opinions can be excluded if there are deficient ices in the underlying data on which his opinions are based. See also Helena Chemical Co v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001) (“If an expert witness relies upon unreliable foundational data, any opinion drawn from that data is likewise unreliable.”) Valente v. Textron, Inc., 931 F.Supp.2d 409 (E.D.N.Y. 2013) – Expert witness’s opinion that a golf cart roll-over accident was the result of hitting a post along the side of a cart path was reliable; In developing the opinion, the expert inspected the golf cart following the accident and performed a series of instrumental driving and stability tests with the subject cart as well as an exemplar car on the portion of the cart path where the accident occurred, and utilized a coefficient of friction supported by peer-reviewed literature 3. What is the probable or known rate of error of the theory or technique? The rate of error of a scientific method, technique, or procedure is a strong indicator of reliability. Rates of error matter because the probative value of the expert’s technique or methodology is restricted by the chance of a false positive, or false negative. However, there can be issues with rates of error. First, rate of error may be defined differently between fields and techniques, which may paint an inaccurate picture of what is scientific error. Second, a rate of error is only as reliable as the data supporting that rate of error. If there is minimal data for a methodology, it becomes difficult to establish a true rate of error. Relevant cases: United States v. Havvard, 117 F.Supp.2d 848 (S.D. Ind. 2000) – Despite there being an absence of a any quantifiable measure for the sufficiency of latent fingerprint identification, the expert’s latent fingerprint identification satisfied the standards for reliability for admission under Daubert and Kumho Tire. The Government claimed the error rate for latent fingerprint identification was zero. The Court was impressed by the Government’s assertion, but noted that the claim is qualified by the reasonable concession of human error in a particular case. The Court also found that even with human error in latent fingerprint identification, the error rate is small when it is subject to fair adversarial testing and challenge. United States v. Green, 405 F.Supp.2d 104 (D. Mass 2005) – As a threshold matter to determine reliability, the Court must assess if the expert’s conclusion is scientifically sound. The question of whether an expert’s technique or theory is scientifically reliable depends on the purpose for which it is being offered. The Government’s ballistics expert’s toolmark (markings on shell casings) testimony was admissible, despite concerns about subjective testing method and lack of evidence as to error rates in the field, so long as it was limited to the expert’s observations. Butler v. Union Carbide Corp., 310 Ga.App 21, 712 S.E.2d 537 (2011) – Decedent retained a pathologist before his death as a result of mesothelioma caused by continual exposure to asbestos from 1965 to 1973. At deposition, the pathologist testified that each exposure to asbestos above “background” levels contributed to causing mesothelioma. The trial court determined the pathologist’s opinion failed the first element of the Daubert reliability factors because the pathologist testified that the theory could not be tested. By extension, it failed the third factor of Daubert because something that is untestable cannot have a known or probable rate of error. Georgia Court of Appeals affirmed. 4. Is the theory or technique generally accepted by the relevant academic community? The General Acceptance Test returns in the Daubert factors, but is no longer solely determinative. The scientific community’s general acceptance of a method or technique is still very important to a Court in determining whether an expert’s testimony should be admitted or excluded. Because this factor, like the others, is not solely determinative, this opens the door to experts testifying about new scientific methods that have yet to be widely accepted by the relevant academic community as long as there is a showing that the method or technique is reliable and relevant to the case. Relevant cases: United States v. Bonds, 12 F.3d 540 (6th Cir. 1993) – The Court held that DNA evidence is admissible. General acceptance occurs when ”a substantial portion of the pertinent scientific community accepts the theory, principles, and methodology underlying scientific testimony because they are grounded in valid scientific principles.” Id. at 561. General acceptance does not require consensus, certainty, or approval by the Courts. The absence of general acceptance is defined as when the evidence is “manifestly unsupported outside the proponent’s own laboratory. Id. at 556. The Court found that procedures used by the Government were accepted in the greater scientific community and that the basic procedures used were sufficient to meet the requirements for general acceptance. Lauzon v. Senco Products, Inc., 270 F.3d 681 (8th Cir. 2001) – General acceptance factor carried substantial weight in favor of accepting a proffered expert testimony regarding the hazards associated with operating a bottom-fire pneumatic nail gun, and its propensity to double-fire nails, as compared to an alternative design of a sequential-fire nail gun. The expert testimony was supported by a Washington State Department of Labor and Industries report that agreed with the expert witness’s conclusions, and plaintiff’s employer testified that the particular nailer, which injured plaintiff, tended to double-fire.