Picking Off Their Experts: Arguments That Worked

Corporate Counsel Weekly

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PUBLISHED ON: November 5, 2008

In Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993), the U.S. Supreme Court held that Federal Rule of Evidence 702 provided a more expansive criterion for the admission of expert testimony than the previously reigning Frye test. Under Frye, expert testimony had to be based upon methodologies that were generally accepted as reliable in the relevant scientific community.

In rejecting the ‘‘general acceptance’’ test, the Supreme Court also rejected the notion that its ruling would create a ‘‘free for all’’ with respect to expert testimony. The Court emphasized that under the federal rules, ‘‘the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.’’ In its subsequent decision in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Court held that these standards applied to all expert testimony, not just scientific testimony.