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Univ. of South Carolina School of Law

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Sunday, September 4, 2011

In General: Has A Court Ever Found Non-Generally Accepted Expert Evidence Admissible Under Daubert?

An e-mail on the Evidence Law Professor listserv raises an interesting question. Before 1993, federal courts applied the Frye test to determine whether expert evidence should be admitted. This standard focused solely upon whether the proffered expert evidence was sufficiently established to have  general  acceptance in the field to which it belonged. In 1993, however, the Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in which it concluded that the Frye test was superceded by the adoption of the Federal Rule of Evidence. In Daubert, the Court replaced the Frye test with the Daubert test, pursuant to which courts determining whether to admit expert evidence may consider several factors, including:

—Whether a "theory or technique ... can be (and has been) tested";
—Whether it "has been subjected to peer review and publication";
—Whether, in respect to a particular technique, there is a high "known or potential rate of error” and whether there are “standards controlling the technique's operation"; and
—Whether the theory or technique enjoys "'general acceptance'" within a ''relevant scientific community.'"

A main goal behind creation of the Daubert test was to exclude "junk" science from the courtroom that might have general acceptance in a relevant "expert" community but lack reliability.

This takes me to the question on the listserv, which was whether a court has ever found that expert evidence that did not have general acceptance within the relevant expert community still satisfied the Daubert test. I think the general consensus is that the answer is "yes" for novel evidence/methodologies that have not yet been sufficiently tested but probably "no" for evidence/methodologies that have already been sufficiently tested and rejected by the relevant expert community. If readers have any examples to the contrary, please feel free to e-mail me or leave them in the comments. In this post, I will highlight the case that I used to show the former point to my Evidence students.

In Borawick v. Shay, 68 F.3d 597, 610 (2nd Cir. 1995), the Second Circuit held that "Daubert allows for the admissibility of scientific evidence, even if not generally accepted in the relevant scientific community, provided its reliability has independent support." And while Borawick itself did not address this particular fact pattern, if you Shepardize the case or search for "even if not generally accepted" in ALLFEDS, you will find a few cases from the Second Circuit that address this fact pattern and allow for the admission of expert evidence that is not generally accepted in the relevant expert community.

The case I use in my Evidence classes to illustrate this point is Silivanch v. Celebrity Cruises, Inc., 171 F.Supp.2d 241 (S.D.N.Y. 2001), in which a passenger who allegedly contracted Legionnaires' Disease from a spa on a cruise sued the cruise line for negligence and the manufacturer of the sand filter used in the spa for products liability and breach of warranties. The plaintiff's expert performed a test on the filter and determined that it was defectively designed and that its inability to backwash properly was preventing disinfectants from circulating throughout the filter medium. The Southern District of New York found that the expert's testimony was admissible: 

The Essef Defendants object that this test is entirely novel and has never been validated. Certainly, there is no evidence that Mr. Suchanek's specific methodology has been tested, subjected to peer review, or widely accepted in the scientific community. But the critical question is whether it is sufficiently reliable to be admissible. See Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167. In essence, Mr. Suchanek's protocol consisted primarily of observing the operation of the very device at issue. He introduced one additional element-the DE-so that the functioning of the filter could be visualized. The Essef Defendants have presented no evidence that this alteration in any way affects the normal operation of the filter or provides a misleading view of its performance. Daubert does not hold that every time an expert witness adopts some variation of a well-established method, his evidence will be excluded unless that variation itself has been scientifically validated. Indeed, with respect to one of the Daubert factors, the Supreme Court observed that “[s]ome propositions, moreover, are too particular, too new, or of too limited interest to be published.” Daubert, 509 U.S. at 593, 113 S.Ct. 2786. That is the case here; the aspect of Mr. Suchanek's testing that is challenged by the Essef Defendants is too narrow for it to have been subjected to the scrutiny of the scientific community. Finally, even if Mr. Suchanek's tests were not adequately validated, their admission caused no substantial prejudice, since the results were consistent with other evidence that the TR-140 filter had a coring problem. For example, while Mr. Suchanek was employed by Essef Corporation, he performed dye tests that showed that the flow of water in the TR-140 during backwash was concentrated in the center of the tank. (Tr. 1361-62). He testified without contradiction that such dye tests are common in the industry. (Tr. 1362).



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