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Daubert Hearings Should Apply Daubert Rules

Previously discussed in this space was the so-called Daubert irony, i.e., the curious circumstance in which a U.S. Supreme Court decision that was supposed to make it easier to admit expert testimony has, in some respect, actually made it more difficult to do so.

Now, I would like to focus on the equally curious circumstance of why we in Pennsylvania do not apply Daubert rules to Daubert hearings. By that I mean that when a so-called Daubert hearing is held in state court, the admissibility of expert testimony is still being judged according to the old Frye "generally accepted" standard rather than the more liberal Daubert standard under which testimony may be admissible even though it is not generally accepted, so long as it is the product of sound scientific methodology. In federal court Daubert overruled Frye, but the Pa appellate courts have yet to adopt Daubert and, thus, Frye remains the law in Pennsylvania.

Actually, we think that Frye remains the law in Pennsylvania because Rule 702 of the new Pa. Rules of Evidence is silent as to which standard ---Daubert or Frye --- should apply and, thus, one would presume that the Frye rule adopted in Pennsylvania several years ago would continue to be controlling unless and until the Pa. Supreme Court says otherwise.

As we await the day that the court resolves the silence in Rule 702, one may ponder which of those two precepts is the more enlightened one. The view here is that Daubert is the better rule and, therefore, the one that should be adopted. Here's why.

Daubert seems to be more in keeping with the reality of how scientific knowledge evolves. Throughout the history of mankind, our level of understanding about "things scientific" has undergone constant change and refinement. Thus, what is "generally accepted" in the 1990's was undoubtedly at some earlier point in time -- perhaps as recently as a few years ago given the speed with which modern thinking is progressing -- just another fresh idea.

A prime example of this phenomenon is the change in the medical community's understanding of what causes stomach ulcers. For years, it had been commonly accepted that diet and stress were the culprits. In the l980's, an American researcher began to advance the notion that, contrary to popular belief, most ulcers are produced by an infection in the stomach caused by a bacteria known a H-pylori. For several years this researcher was regularly ridiculed as he traveled around the country advancing his thesis at medical meetings and lectures. Low and behold, a few years ago substantial data emerged which proved the researcher to be correct, and now it is commonly accepted among doctors that H-pylori is a prime cause of ulcers!

Given these realities concerning the progression of scientific thought, the Daubert rule under which novel or emerging theories are not excluded from jury consideration merely because they have not yet acquired "general acceptance" seems clearly preferable to the Frye standard. Indeed, one could say that in seeking to "police" which experts are permitted to testify, the Frye rule has the ironic effect in some cases of denying the jury the opportunity to hear from our most qualified experts, i.e., those people who are on the cutting edge and advancing the frontiers of scientific thought in their respective fields.

Let's hope that the Pa. Supreme Court takes the opportunity to break the silence of Rule 702 and specifically adopt Daubert and rejects Frye.

John Gismondi on G+

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