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The Slippery Application of Daubert to Non-Scientific Expert Evidence

According to the Federal Judicial Center, district court judges and attorneys report that experts from scientific areas testify in only a small proportion of all cases in which experts testify. The vast majority of experts are testifying in non-scientific areas or "soft science." The Federal Judicial Center has categorized "scientific" disciplines as including chemistry, toxicology, statistics, metallurgy, meteorology, behavioral science, epidemiology, geology, physics, agricultural science, molecular biology/genetics, and computer science. By contrast, it has categorized the "non-scientific" or "technical" disciplines to include, among others, medical/mental health, engineering, accident reconstruction, police procedures, fire/arson, economics, accounting, patents and trademarks, law, appraisal, insurance, and securities. See, Molly Treadway Johnson et al., Expert Testimony in Federal Civil Trials: A Preliminary Analysis (2002).

According to the Federal Judicial Center, district court judges and attorneys report that experts from scientific areas testify in only a small proportion of all cases in which experts testify. The vast majority of experts are testifying in non-scientific areas or "soft science." The Federal Judicial Center has categorized "scientific" disciplines as including chemistry, toxicology, statistics, metallurgy, meteorology, behavioral science, epidemiology, geology, physics, agricultural science, molecular biology/genetics, and computer science. By contrast, it has categorized the "non-scientific" or "technical" disciplines to include, among others, medical/mental health, engineering, accident reconstruction, police procedures, fire/arson, economics, accounting, patents and trademarks, law, appraisal, insurance, and securities. See, Molly Treadway Johnson et al., Expert Testimony in Federal Civil Trials: A Preliminary Analysis (2002).

In 1993 the Supreme Court set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), the principles governing admissibility of scientific expert testimony, which are more fully discussed below. In 1999, the Court ruled in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167 that the Daubert factors also apply to non-scientific testimony. The Court noted that the Daubert factors don’t always provide a clear answer when considering the admissibility of non-scientific testimony and that the Daubert analysis is a “flexible” one where often other factors would have to be considered by the lower courts. This gray area is where the “slippery” application of Daubert begins as courts struggle with determining what other factors help determine reliability of proffered testimony. Nevertheless, since Daubert and Kumho, courts have been more likely to scrutinize expert testimony before trial and less likely to admit expert testimony than before. Likewise attorneys have reported filing more motions in limine challenging the admissibility of expert testimony. This increase in challenges to experts, along with the Supreme Court's decisions in Daubert and Kumho Tire, continues to impact the courts and the practice of every civil litigator.

This article analyzes the history and background of the admissibility of expert testimony in the federal courts, discusses the distinction created in the case law between scientific and “non-scientific” testimony, identifies the current standard for admissibility of expert testimony in the Seventh Circuit, and a provides brief review of recent Seventh Circuit cases examining the admissibility of non-scientific testimony and various factors considered by the Court when determining reliability of proffered testimony.

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  • Partner

    John McCauley maintains a diverse commercial litigation and trial practice in state and federal courts throughout the United States. He has represented regional and national clients, as well as clients in Europe and Asia. John has ...

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