Commercial Litigation and Arbitration

Daubert — Where Are We?

When Daubert was decided in 1993, it was initially perceived as liberalizing the admissibility of expert evidence — especially novel scientific evidence — because it rejected the strictures of the Frye test. In December 2000, when the Advisory Committee on the Federal Rules of Evidence codified Daubert in Rule 702, the Committee Note observed that: ‛A review of the caselaw after Daubert shows that the rejection of expert testimony is the exception rather than the rule. Daubert did not work a ‘seachange over federal evidence law,’ and the trial court’s role as gatekeeper is not intended to serve as a replacement for the adversary system’“ (citation omitted). Seven years later, compare the Third Circuit’s recent observation in United States v. Ford, 481 F.3d 215, 220 n.6 (3d Cir. 2007): "Although we do not adopt the apparent presumption of exclusion enunciated by the Ninth Circuit, we agree with the spirit of our sister court's exhortation. In particular, district courts should tread carefully when evaluating proffered expert testimony, paying special attention to the relevance prong of Daubert." The seachange may have approached covertly, but it has overtaken us. It is, therefore, refreshing to find cases like Lokai v. Mac Tools, Inc., 2007 U.S. Dist. LEXIS 56188 (S.D. Ohio Aug. 2, 2007): "As the Advisory Committee Notes to Rule 702 indicate, exclusion of expert testimony should be the exception and not the rule, and the trial court's role as gatekeeper is not intended to replace the adversary system.... 'Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence'" (quoting Daubert, 509 U.S. at 595).

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