Page 217 - Veterinary Toxicology, Basic and Clinical Principles, 3rd Edition

184 SECTION | I General

VetBooks.ir TABLE 11.1 (Continued) References a

State
Standard
Oregon Daubert State v. O’Key, 899 P.2d 663 (Or. 1995)
Pennsylvania Frye Pa.R.E. 702(c)
Rhode Island Daubert RI R. Evid. Art. VII, Rule 702
South Carolina daubert
South Dakota Daubert State v. Hofer, 512 N.W.2d 482 (S.D. 1994)
Tennessee Daubert Tenn. R. Evid. Rule 702
Texas Daubert E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995)
Utah Daubert State v. Rinmasch, 775 P.2d 388 (Utah 1989)
Vermont Daubert State v. Brooks, 162 Vt. 26, 30, 643 A.2d 226, 229 (1993)
Virginia Other Va. Code Ann. 8.01-401
Washington Frye State v. Riker, 869 P.2d 43 (Wash. 1994). Reinforced State v. Riker, 869 P.2d 43 (Wash. 1994)
West Virginia Daubert Wilt v. Buracker, 443 S.E.2d 196 (W. Va. 1994)
Wisconsin Daubert Wis. Stat. y 907.02(1)
Wyoming Daubert Bunting v. Jamison, 984 P.2d 467 (Wyo. 1999)
a
See https://www.theexpertinstitute.com/daubert-v-frye-a-state-by-state-comparison/ accessed April 22, 2017.

post-Daubert, that parties will initially present less than (1999) at 1176. See also, Rosen v Ciba-geigy Corp, 78 F.3d
th
their best expert evidence in the expectation of a second 316 (7 Cir) cert denied, 519 U.S. 819 (1996) at 318.
chance should their first trial fail. 49
Clearly, the U.S. Supreme Court in Daubert assigned
Expert testimony is different from lay testimony. One the trial judge a “gatekeeping” responsibility. This
difference is the possibility that “junk science” may be used responsibility is to make a “preliminary assessment of
to confuse, rather than assist, the trier of fact. Consequently whether the reasoning or methodology underlying the tes-
an additional test of admissibility is applied to expert testi- timony is scientifically valid and whether that reasoning
mony. Such testimony must not only be relevant, but it or methodology properly can be applied to the facts in
must also be reliable. This concept is explained in the issue.” Daubert at 589 The “gatekeeper” function requires district
Daubert case. Justice Breyer, “believe[s] there is an increas- court judges to screen proffered expert testimony. Ibid This
ingly important need for law to reflect sound science.” Justice screening is intended to ensure that expert testimony “is not
Breyer, in the Reference Manual on Scientific Evidence, p. 5. Ibid
Justice only relevant, but reliable.” To be relevant, the testimony
Breyer also writes in the Manual on Scientific Evidence: “requires a valid scientific connection to the pertinent inquiry
as a precondition to admissibility.” Daubert at 591 192. Much
The judge is the evidentiary gatekeeper (General Electric Co
has been written about the reliability portion of this
v Joiner, 522 U.S. 136 (1997); Daubert v Merrel Dow Pharms
screening.
Inc., 509 U.S. 579 (1993)).). “The judge, without interfering
with the jury’s role as trier of fact, must determine whether To meet the reliability standard, the judge must deter-
purported scientific evidence is “reliable” and will “assist mine whether testimony is “grounded in the methods and
the trier of fact” thereby keeping from juries testimony that, procedures of science.” Daubert, at 590. Consequently, an
in Pauli’s sense, isn’t even good enough to be wrong.” expert must account for “how and why” he or she reached
Justice Breyer, in Manual on Scientific Evidence, p. 6. the expert opinion. Kumho, at note 27. The judge’s determina-
Daubert at 594
The purpose of Daubert’s gatekeeping requirement “is tion is “flexible” so the trial judge has broad
to make certain that an expert whether basing testimony latitude to determine how to test an expert’s
upon professional studies or personal experience, employs reliability, Kumho, at 1176 and this determination, may be dif-
in the courtroom the same level of intellectual rigor that ferent in a criminal case than in a civil one. Kumho at 1176
characterizes the practice of an expert in the relevant Nevertheless, guidelines for determining the reliability of
field.” Kumho Tire Co v Carmichael, 119 S. Ct. 1167 expert testimony exist.