Seventeen years after the Supreme Court decided the Daubert case, several states are still struggling with whether – or how – to adopt it.
Soon after Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) was handed down, the California Supreme Court considered whether to adopt it in lieu of the Frye rule (Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)) and concluded there was no need. The court decided that Frye was a good rule for cases involving novel scientific tests, and that the Daubert framework was already functionally in place in the California Evidence Code – California Evidence Code section 801 and cognate provisions were the “functional equivalent” of Federal Rule of Evidence 702 as interpreted in Daubert. People v. Leahy, 8 Cal.4th 587, 598 (1994). Leahy seemed a fairly clear statement of the California rules on admission of expert testimony: If the expert was proposing to testify concerning novel scientific techniques, the Frye general acceptance standard must be satisfied. In other cases, or if Frye was satisfied, basic rules of reliability similar to those described in Daubert needed to be satisfied for the testimony to be admitted.
Unfortunately, while some lower courts read Leahy this way, others chose to read no further than the Court’s ultimate holding that California would retain Frye. Compare Roberti v. Andy’s Termite & Pest Control, Inc., 113 Cal.App.4th 893, 905-906 (2003) (concluding that Leahy rejected Daubert) with People v. Mitchell, 110 Cal.App.4th 772, 794 (2003) (both California’s Evidence Code and Federal Rule of Evidence 702 require a reliable foundation for scientific evidence). See also Lockheed Litigation Cases, 115 Cal.App.4th 558 (2004) and Geffcken v. D’Andrea, 137 Cal.App.4th 1298 (2006) (applying reliability gatekeeping to exclude unfounded expert testimony).
In 2005, a case arose presenting a quality opportunity for the California Supreme Court to clarify the standards. The intermediate court of appeal in Lockheed Litigation Cases, 126 Cal.App.4th 271 (2005), rev. granted (No. S132167 April 13, 2005), had conducted what might be considered Daubert style gatekeeping, examining the bases for the expert’s opinion to determine whether they provided reasonable support and excluding the testimony when it proved to be scientifically unfounded. Discretionary review was granted, a slew of amicus briefs (including one drafted by the author) were filed weighing in on the appropriate level of scrutiny to be applied to expert testimony, and the case was fully briefed and waiting for hearing and decision. And waiting, and waiting. In November 2007, more than two and a half years after the grant of review, the court dismissed the case due to multiple conflict of interest recusals by the justices. The court has not taken up a case presenting the issue since and the lower courts remain in turmoil when it comes to evaluating the admissibility of complex expert testimony.
Arizona rejected Daubert and clung to its Frye rule – one of the weakest Frye rules in the country – in Logerquist v. McVey, 1 P.3d 113 (Ariz. 2000). While maintaining Frye as the standard, the court excluded from its ambit expert testimony based on inductive reasoning, an exclusion largely coextensive with the “pure opinion” exception recognized in other jurisdictions. Id. at 133. A strong dissent in Logerquist calls for reform (see Lohmeier v. Hammer, 148 P.3d 101, 114-115 (Ariz. Ct. App. 2006)) and ultimately led to legislation passed in 2010 establishing a Daubert-like standard. A.R.S. § 12-2203.
Unfortunately, the Arizona Constitution has been read to restrict the ability of the legislature to enact or modify rules of evidence. In January 2011, an Arizona appellate court struck down the legislation as a violation of the separation of powers and usurpation of the supreme court’s rule-making authority – the power to make rules as to all procedural matters. Lear v. Fields, 245 P.3d 911 (Ariz. Ct. App. Div. 2 2011). An Arizona rules committee, operating within the judicial branch, is currently debating a proposal to adopt a standard based on Daubert.
The Supreme Court of Alabama has repeatedly declared Alabama to be a Frye state. E.g., General Motors v. Jernigan, 883 So.2d 646 (Ala. 2003); Courtaulds Fibers, Inc. v. Long, 779 So.2d 198 (Ala. 2000). The Alabama legislature, however, has specifically adopted Daubert for admissibility determinations regarding DNA evidence. Ala. Code §36-18-30 (1997). See Turner v. State, 746 So.2d 355 (Ala. 1998).
The legislature held hearings in March 2011 on proposed legislation which would adopt a Daubert-like standard. The bill has passed out of the Senate and is pending, as of this writing, in the House.
Florida’s post-Daubert experience has been enigmatic.
The Florida Supreme Court decided, in the wake of Daubert, to stick with Frye. See, e.g., Flanagan v. State, 625 So. 2d 827 (Fla. 1993). It reaffirmed that decision as recently as 2007 in Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007). In Castillo v. E.I. Du Pont De Nemours & Co., 854 So. 2d 1264 (Fla. 2003) the court observed, however, that the Florida version of the Frye rule is equivalent to the first prong (the reliability analysis) of Daubert. Id. at 1276. Florida courts have also held that “pure opinion” testimony need not be scrutinized under the Frye rule, defining “pure opinion” as testimony based solely on the expert’s background, experience and training. Hadden v. State, 690 So.2d 573, 580 (Fla. 1997); Flanagan, 625 So.2d at 828. See also Gelsthorpe v. Weinstein, 897 So.2d 504, 510-511 (Fla. 2nd DCA 2005); Holy Cross Hosp., Inc. v. Marrone, 816 So.2d 1113 (Fla. 4th DCA 2001). Recent district court of appeal decisions, however, have been unfaithful to this narrow reading of the pure opinion exception, e.g., Andries v. Royal Caribbean Cruises, Ltd., 12 So.3d 260 (Fla. 3rd DCA 2009), and the Florida Supreme Court has not yet revisited the issue.
Meanwhile, a legislative effort to adopt a Daubert-type standard made it out of committee but died on the floor along with other tort reform measures.