By Edward J. Imwinkelried

Reprinted with permission of TRIAL (October 1996). Copyright the Association of Trial Lawyers of America.

A new pressure point is emerging in the law of expert testimony. A growing number of lawyers are arguing that "scientific" testimony deemed inadmissible under the so-called Daubert test1 should be accepted by courts as "technical or other specialized knowledge" under Article VII of the Federal Rules of Evidence.

Opponents counter that when proffered testimony misses the qualifying mark, courts should reject it , as they do "near miss" hearsay under Article VIII of the rules.

This article argues that courts should not import the article VIII near miss doctrine into Article VII.

Before Daubert, for almost three quarters of a century, the Frye test, from Frye v. United States2 reigned as the standard governing admissibility of scientific testimony in this country. The District of Columbia Circuit Court wrote in 1923 -

Just when a scientific principle or discovery crosses the line between experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while the courts will go a long way in admitting expert testimony deduced from a well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have general acceptance in the particular field in which it belongs.3

In other words, under Frye, the foundation for admissible scientific evidence had to include a showing that the underlying theory or technique enjoys general acceptance within the specialty field. This eventually became the overwhelming majority view, reaching a point where Frye appeared to be the controlling standard in at least 45 states.4

In 1974, Congress approved the Federal Rules of Evidence, and the rules took effect on July 1,1975. They included Article VII, which dealt with expert opinion testimony, but no provision codified any requirement for general acceptance of a scientific theory or technique. The question arose as to whether Frye had survived enactment of the Federal Rules, and the lower courts were divided over the question.5

In 1991, in a Bendectin case-Daubert v Merrell Dow Pharmaceuticals, Inc.-the Ninth Circuit Court of Appeals passed on that question.6

Writing for the court, Judge Alex Kozinski concluded that the general acceptance test was still good law. In 1992, the U.S. Supreme Court granted certiorari in Daubert, and in 1993, the Court rendered its decision.7

The decision had two prongs. One held that the Federal Rules had over turned Frye. In Daubert, the Court adhered to the Federal Rules. If the text of the rules cannot reasonably be interpreted as codifying a common law exclusionary doctrine, the Court has uniformly reasoned that the rules supersede the doctrine.8

The second prong announced a new standard for determining the admissibility of scientific testimony. The majority adopted a methodological test to determine whether proffered testimony qualified as admissible "scientific knowledge" within the meaning of that term in Federal Rule 702.

The majority stated that the pivotal question is whether the witness has empirically validated the hypothesis by appropriate scientific methodology. The majority noted that the scientific method consisted of formulating a hypothesis and then engaging in experimentation and observation to falsify or verify it. Hence, the admissibility of scientific testimony no longer turns on the popularity of the witness's hypothesis. Rather, the determinant is the extent and quality of the empirical validation.

In the decision, Justice Harry Blackmun emphasized that trial judges have an important "gatekeeping" or screening function to perform. Judges are evidently taking this responsibility seriously.9 In a large number of cases, the lower courts have invoked Daubert to exclude proffered scientific testimony.10

Indeed, in Daubert itself, on remand, the Ninth Circuit Court of Appeals held that the plaintiff's evidence was inadmissible.11 The trend appears to be to read Daubert as prescribing a "stringent" hurdle for proffered Scientific evidence.12

Many courts are applying the empirical validation test so rigorously that lawyers are seeking an alternative route to admissibility of expert testimony. They do not have far to look.

The Daubert Court derived its test from the wording of Federal Rule 702. It does not refer exclusively to "scientific knowledge," but instead it refers to "scientific, technical, or other specialized knowledge."

In a foot note in the majority opinion, Blackmun noted: "Rule 702 also applies to 'technical, or other specialized knowledge.'" Our discussion is limited to the scientific context because that is the nature of the expertise offered here.13 Thus, Rule 702 and Daubert leave open the possibility that a proponent of expert testimony can argue that the testimony is admissible as "technical" knowledge or "specialized" knowledge even when the testimony falls short of qualifying as "scientific" knowledge.

Some courts have glossed over this issue and applied the Daubert test across the board to all expert testimony.14 Other courts have limited the scope of the test to scientific expert testimony.15

The 1995 Starzecpzel decision is especially significant in this regard.16 The district court passed on the admissibility of testimony by questioned-document examiners.

On the one hand, the court concluded that questioned-document testimony does not pass muster as scientific knowledge under Daubert because there is a lack of systematic validation for many of the assumptions in questioned document examination.

On the other hand, the court ruled that the testimony was nevertheless admissible. The court restricted Daubert to scientific evidence and reasoned that counsel may argue alternatively that the testimony constitutes "technical or other specialized knowledge."

As more and more lawyers make this argument, opposing counsel will understandably try to limit the availability of the alternative. In all likelihood, defense counsel will argue that if a hypothesis could be validated by the scientific method and the proponent has failed to do so, the witness's testimony is inadmissible-whether it is characterized as "scientific" or "specialized" knowledge.

The thrust of the argument will be that when proffered testimony misses the mark of qualifying as "scientific as knowledge," the courts should be reluctant to admit it under Article VII.


1. Daubert v Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)

2. 293 F. 1013 (D.C. Cir. 1923).

3. Id. at 1014.

4. Note, Betty R. Steingass, Changing the Standard for Admissibility of Novel Scientific Evidence, 40 OHIO ST. L.J. 757, 769 (1979).


6. 951 F.2d 1128 (9th Cir. 1991)

7. 509 U.S. 579

8. See Edward Imwinkelried, The Daubert Decision: Frye Is Dead, Long Live the Federal Rules of Evidence, TRIAL, Sept. 1993, at 60,61.

9. See Thomas J. Mack, Scientific Testimony After Daubert: Some Early Returns from Lower Courts, TRIAL, Aug. 1994, at 23; G. Michael Fenner, The Daubert Handbook: The Case, Its Essential Dilemma, and Its Progeny, 29 CREIGHTON L. REV. 939 (1996)

10. See, e.g., Braun v. Lorillard, Inc., 84 F.3d 230 (7th Cir. 1996); In re TMI Litigation Cases Consol. II, 922 F.Supp. 997 (M.D. Pa. 1996); Valentine v. Pioneer Chlor Alkali Co., 921 F.Supp. 666 (D.Nev. 1966 )

11. 43 F.3d 1311 (9th Cir. 1995), cert. denied, 116 S.Ct. 189 (1995)

12. See, e.g., Cavallo v. Star Enter., 892 F. Supp. 756, 773 (E.D. Va. 1995); see also Larry E. Coben, The Daubert Decision: Gatekeeper or Executioner? TRIAL, Aug. 1996, at 52.

13. Daubert, 509 U.S. 579, 589 n.7.

14. United States v. Posado, 57 F.3d 428, 432 (5th Cir. 1995); Berry v Detroit, 25 F.3d 1342, 1350 (6th Cir. 1994), cert. denied, 115 S.Ct. 902 (1995).

15. Compton v Subaru of America, Inc., 82 F.3d 1513 (10th Cir. 1996); United States v. Sinclair, 74 F.3d 753 (7th Cir. 1996); Iacobelli Construction, Inc. v. County of Monroe, 32 F.3d 19 (2d Cir. 1994)

16. United States v. Starzecpyzel, 880 F.Supp. 1027 (S.D.N.Y. 1995)

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