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Daubert application

Daubert application

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Published by NDW427
APPLICATION OF DAUBERT IN ENVIRONMENTAL CRIMINAL AND CIVIL CASES*
APPLICATION OF DAUBERT IN ENVIRONMENTAL CRIMINAL AND CIVIL CASES*

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Published by: NDW427 on Sep 09, 2010
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 APPLICATION OF DAUBERT IN ENVIRONMENTAL CRIMINAL AND CIVILCASES
*
INTRODUCTION
 Following the seminal case of 
 Daubert v. Merrell Dow Pharmaceuticals, Inc.
,
1
challenges toexpert testimony in civil and, to a lesser extent, criminal cases increased dramatically. The purposeof this paper is to examine the application of 
 Daubert 
in environmental criminal and civil cases. To provide background information, Part I of this article discusses the
 Daubert 
trilogy of cases. Part IIexamines
 Daubert 
challenges in environmental criminal cases. Part III examines
 Daubert 
challengesin environmental civil cases. In addition, Part III discusses whether 
 Daubert 
applies to administrative bodies, such as the Environmental Appeals Board. Finally, Part IV examines whether or not
 Daubert 
 will prove to be significant in future environmental criminal cases.
I. The Daubert Trilogy of Cases.
2
 The so-called
 Daubert 
trilogy refers to the cases of 
 Daubert v. Merrell Dow Pharmaceuticals, Inc.
,
3
General Electric Co. v. Joiner 
,
4
 and
 Kuhmo Tire Co., Ltd. v. Carmichael 
.
5
 Daubert 
and
 Kuhmo
establish the trial judge's role as gatekeeper of expert testimony, and set forth thecriteria to determine if expert evidence is admissible.
 Joiner 
establishes the standard for appellatereview of a trial court's ruling on the admissibility of expert evidence. The following discussionexamines these cases in chronological order.
A.
 Daubert v. Merrell Dow Pharmaceuticals, Inc.
 In
 Frye v. United States
,
6
the United States District Court for the District of Columbiaestablished a test for the admissibility of expert testimony. The
 Frye
court held that testimony "must be sufficiently established to have gained general acceptance in the particular field in which it
*
Research assistance for this article was provided by Catesby Major, a second year law student at theUniversity of Kansas School of Law.
1
509 U.S. 578 (1993).
2
Some commentators recognize a "fourth leg" under the
 Daubert 
line of cases. In
Weisgram v.Marley Co.
, the United States Supreme Court held that a "court of appeals may direct entry of  judgment as a matter of law for the party that lost the jury verdict upon a determination by theappellate court that the verdict cannot be sustained due to an error in the admission of expertevidence."
Weisgram
, 528 U.S. 440 (2000);
 see also
John L. Watson, "
The Four Legs of theGatekeeper's Table-Daubert, Joiner, Kuhmo Tire, and Weisgram
," ABA Fall Meeting. For purposesof brevity, however, this article will not discuss the
Weisgram
opinion.
3
 
 Id.
 
4
522 U.S. 136 (1997).
5
526 U.S. 137 (1999).
6
293 F. 1013 (D.C. Cir. 1923).
WA 660868.1
 
 belongs."
7
 
Although often criticized, the "general acceptance" test was used for seventy years by themajority of courts to determine the admissibility of scientific evidence at trial.
8
In
 Daubert 
, however, the United States Supreme Court unanimously held that the generalacceptance test was superseded by the Federal Rules of Evidence. More specifically, the Court heldthat nothing in the text of Rule 702
9
requires "general acceptance as an absolute prerequisite toadmissibility."
 
Instead, based on the language of Rule 702, the Court promulgated a two-prong testto aid trial courts in assessing the admissibility of expert testimony. This test requires a trial judge to"determine at the outset, pursuant to Rule 104(a),
whether the expert is proposing to testify to (1)scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue."
 
To determine whether a theory or technique is scientific knowledge, the Court enumeratedfour factors that trial judges could consider: (1) whether the expert's theory and underlyingmethodology can be, or has, been tested; (2) whether the technique or theory has been subjected to peer review and publication; (3) whether the technique or theory has a "known or potential rate of error"; and (4) whether the technique or theory has been generally accepted in the scientificcommunity.
 This inquiry is "a flexible one," and "must be solely on principles and methodology,not on the conclusions they generate."
 
The
 Daubert 
court rejected the argument that this moreliberal standard of admissibility would generate negative consequences. The Court believed that"[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissibleevidence."
7
 
 Id.
at 1014.
8
 
See Daubert 
, 509 U.S. at 585.
9
Federal Rule of Evidence 702 governs the admissibility of expert testimony. More specifically,Rule 702 provides "If scientific, technical, or other specialized knowledge will assist the trier of factto understand the evidence or to determine a fact in issue, a witness qualified as an expert byknowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Fed. R. Evid. 702.
10
 
 Daubert 
, 509 U.S. at 589.
11
Federal Rule of Evidence 104(a) governs preliminary questions of admissibility. Morespecifically, Rule 104(a) provides "Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by thecourt . . . In making its determination it is not bound by the rules of evidence except those withrespect to privileges." Fed. R. Evid. 104(a).
12
Daubert 
, 509 U.S. at 593, 594.
13
 
 Id.
at 594-95. The Court also noted that other Federal Rules of Evidence could apply in making anadmissibility determination. For example, Rule 403 allows the exclusion of relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues,or misleading the jury . . . ."
14
 
 Id.
at 596.
WA 660868.1
2
 
B.
General Electric Co. v. Joiner 
 
 Daubert 
did not address the standard of appellate review for evidentiary rulings. Under the
 Frye
"general acceptance" test, the standard of review was de novo. In
General Electric Co. v. Joiner 
,
the United States Supreme Court unanimously held that appellate review under 
 Daubert 
isabuse of discretion.
 Joiner 
recognized that "cases arise where it is very much a matter of discretionwith the court whether to receive or exclude the evidence; but the appellate court will not reverse insuch a case, unless the ruling is manifestly erroneous."
 
C.
 Kumho Tire Co. v. Carmichael 
 In
 Kuhmo Tire Co. v. Carmichael 
,
the United States Supreme Court provided trial courtsfurther guidance to determine whether or not expert testimony should be admitted. In another unanimous ruling,
 Kuhmo
held that "
 Daubert's
general holding–setting forth the trial judge's generalgatekeeping obligation–applies not only to testimony based on scientific knowledge, but also totestimony based on technical and other specialized knowledge."
 The Court reasoned that thelanguage of Rule 702 makes no distinction between "scientific" knowledge and "technical" or "other specialized" knowledge.
Therefore, the
 Daubert 
factors may apply to the testimony of experts whoare not necessarily scientists.
 Regardless of whether the expert is a scientist or not, a trial courtmust simply determine whether the testimony has a "reliable basis in the knowledge and experienceof his discipline."
 Additionally,
 Kuhmo
held that a trial judge determining the admissibility of expert testimony
may
consider one or more of the
 Daubert 
factors.
The Court noted that
 Daubert 
expressly statedthat the factors do not constitute a "definitive checklist or test," and that the gatekeeping inquiry must be "tied to the facts" of the case at bar.
For example, the Court recognized that it would not be"surprising" in a particular case if a "claim made by a scientific witness has not been the subject of  peer review, for the particular application at issue may never previously have interested anyscientist."
 Consequently, "[t]he factors identified in
 Daubert 
may or may not be pertinent inassessing reliability, depending on the nature of the issue, the expert's particular expertise, and the
15
522 U.S. 136 (1997).
16
 
 Id.
at 142 (citing
Spring Co. v. Edgar 
, 99 U.S. 645 (1879)).
17
526 U.S. 137 (1999).
18
 
 Id.
at 141.
19
 
 Id.
at 147.
20
 
 Id.
at 138.
21
 
 Id.
at 149.
22
 
 Id.
at 138.
23
 
 Id.
at 150 (citing
 Daubert 
, 509 U.S. at 593).
24
 
 Id.
at 151.
WA 660868.1
3

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