Beyond Daubert: State-Specific Expert Witness Requirements

Most US states currently follow the standard set forth in Daubert v. Merrell Dow Pharmaceuticals when it comes to qualifying expert witnesses. Others, however, adhere to the older Frye standard, use a combination of Daubert and Frye, or use their own standard.

Here, we look at a few states that don’t follow Daubert and the paths they have chosen instead.

Daubert-Plus: New Jersey and Nevada

Daubert’s influence is felt in a number of states, even if the state has not wholly adopted the standard laid out in that case. Two states that refer to Daubert without fully adopting its approach are New Jersey and Nevada.

In In re Accutane Litig., 234 NJ 340 (2018), New Jersey shifted to a standard that, while not identical with Daubert, shares more in common with Daubert than with the state’s previous Frye-based standards. Prior to In re Accutane, New Jersey required the party presenting an expert’s work to demonstrate general acceptance within the relevant scientific community.

Now, New Jersey’s standard digs more deeply into the expert’s findings and proposed testimony. Attorneys handling cases in New Jersey can expect to face more challenges based on the applicability of the expert’s reasoning and methods to the case at hand, any analytical gaps in the expert’s data and opinions, and any cherry-picking of evidence to paint a different picture than the generally accepted model.

Nevada uses Daubert as a lens through which to better understand its own state-specific standard. The state’s admissibility requirements are laid out in Nevada Revised Statute 50.275, which states that if scientific or technical testimony will help the trier of fact, than an expert who specializes in that field can testify to “matters within the scope of such knowledge.”

In Higgs. v. State, 222 P.3d 648 (Nev. 2010), the state’s supreme court clarified that the trial court must consider the testimony’s “(1) qualification, (2) assistance, and (3) limited scope requirements” in determining whether or not to admit the testimony. The court can also consider whether the expert’s opinion is “(1) within a recognized field of expertise, (2) testable and has been tested, (3) published and subjected to peer review, (4) generally accepted in the scientific community (not always determinative), and (5) based on more particularized facts rather than assumption, conjecture, or generalization.”

Hybrid Standards: California and Minnesota

Some states have adopted standards for expert witness admissibility that are not clearly recognizable as either the Daubert or Frye standards, but that incorporate elements of both. California and Minnesota provide two such examples.

Until 2012, California followed a complex standard known as the “Frye-Kelly” rule. The Frye-Kelly rule held, generally, that expert testimony was admissible if it was the sort of testimony that had received “general acceptance” in the scientific community.

In 2012, however, the California Supreme Court changed the state’s approach to expert witness admissibility. In Sargon Enterprises, Inc. v. University of Southern California, 55 Cal. 4th 747 (2012), the state supreme court reaffirmed the need for trial judges to exercise more discretion over expert testimony, and empowered them to rejected expert evidence for reasons other than “general acceptance.” Today, California courts tend to implement this rule in a fashion more in line with Daubert than with Frye.

Minnesota uses what may be thought of as two sets of standards. The first, known as the Frye-Mack standard, applies when “novel scientific evidence” is at stake. Lately reaffirmed by the state’s supreme court in Doe v. Archdiocese of St. Paul, 817 N.W.2d 150 (Minn. 2012), the Frye-Mack standard is a two-prong test that must be passed in order to admit novel or untested scientific evidence.

First, Frye-Mack asks “whether experts in the field widely share the view that the results of scientific testing are scientifically reliable.” Second, Frye-Mack asks “whether the laboratory conducting the tests in the individual case complied with appropriate standards and controls.” Both standards are explained in more detail in State v. Hull, 788 N.W.2d 91 (Minn. 2010).

For other forms of expert testimony, Minnesota Rule of Evidence 702 lays out three rules. To admit the expert’s testimony, “(1) The witness must qualify as an expert, (2) the expert’s opinion must have foundational reliability, (3) the expert testimony must be helpful to the trier of fact.” The third element is generally understood to derive from the Frye-Mack standard.

Forging A Third Path: South Carolina

South Carolina uses a unique standard for expert witness testimony articulated in State v. Jones, 259 S.E.2d 120 (S.C. 1979) and affirmed in State v. White, 642 S.E.2d 607 (S.C. Ct. App. 2007).

Under the Jones standard, the trial court considers four factors when weighing the admissibility of testimony: scientific methodology, peer review, general acceptance, and rate of error.

The expert is also evaluated to determine whether he or she has “acquired by study or practical experience such knowledge of the subject matter of his testimony as would enable him to give guidance and assistance to the jury in resolving a factual issue which is beyond the scope of the jury’s good judgement and common knowledge,” per State v. Council, 515 S.E.2d 508 (S.C. 1999).

Under Council, the court can also consider whether the expert’s methods have been subjected to peer review, published, or contain a “known potential rate of error.” The court can also examine the standards that controlled the expert’s techniques, if any.

While Daubert remains the standard in federal courts and in a majority of states, some states have forged their own paths by combining Daubert and Frye, maintaining Frye, or creating their own methods for evaluating expert witnesses. Understanding a state’s standards is essential to qualifying one’s own expert witness or to challenging opposing counsel’s expert.