APU Legal Studies Original

Frye and Daubert Challenges in Expert Witness Testimony

By Dr. Gary L. Deel, Ph.D., J.D.
Associate Professor, Wallace E. Boston School of Business

I have written previously about my work as an expert witness in different cases. One of my areas of expertise is hospitality industry operations, so I am frequently retained by attorneys litigating cases involving hotels, restaurants, casinos, nightclubs, theme parks, and other kinds of hospitality business environments.

These attorneys enlist my help to assess facts and evidence and to assist them in understanding industry customs, practices, and standards for the contexts relevant to their cases. In addition, I sometimes offer testimony on the record as it relates to my opinions on the case. The role of an expert witness who gives testimony in a case is to help educate the judge and/or jury on non-intuitive knowledge with respect to their areas of expertise, so that the justice of rulings or verdicts can be optimized.

However, we cannot always assume that expert witnesses are properly qualified to offer testimony. There are certain standards for expert witness qualification and the admissibility of expert testimony.

In my previous article, I wrote about how experts have a duty to establish the basic foundation for their expertise when they testify in court. Establishing that foundation includes submitting a resume that demonstrates why an expert’s education, training, licensure, work experience, research, publication record and other factors qualify them to speak on certain issues. 

But this resume doesn’t mean that an expert’s qualifications are automatically assumed to be sufficient for use in court. In fact, expert qualifications are frequently challenged by opposing legal counsel for strategic reasons, and there are two primary common law standards, Frye and Daubert, by which an individual’s status as an expert witness is scrutinized and adjudicated.

The Frye Challenge for Gauging the Expertise of an Expert Witness

The first standard is the Frye challenge, which developed from the 1923 United States Circuit Court of Appeals case Frye v. United States. Frye challenges are typically brought to challenge the testimony of an expert witness, and the judge is the final arbiter.

During a Frye challenge, the question before the court is whether or not the method by which evidence or opinions from an expert witness are produced is generally accepted by other experts in that same field. Federal courts no longer utilize the Frye standard, though some states still do.

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The Daubert Challenge and Expert Witness Testimony

The more recent standard for challenging expert witness testimony is the Daubert challenge. This newer standard comes from the 1993 U.S. Supreme Court case Daubert v. Merrell Dow Pharmaceuticals, Inc.

The Daubert challenge has replaced the Frye challenge in federal courts, and it has also been adopted by some state courts as well. Daubert challenges are made by opposing counsel when they wish to challenge the validity of an expert’s testimony in the same manner as a Frye challenge.

In a Daubert challenge, the judge is still the ultimate decider. But unlike the simpler Frye standard, Daubert utilizes five different criteria to determine the soundness of an expert’s methodology:

1. Whether the theory or technique in question can be and has been tested

2. Whether it has been subjected to peer review and publication

3. Its known or potential error rate

4. The existence and maintenance of standards controlling its operation

5. Whether it has attracted widespread acceptance within a relevant scientific community

Why Frye and Daubert Standards Are Useful

As you can see, both Frye and Daubert focus on the extent to which an expert’s opinions are predicated on sound methods. But while Frye only considers the element of whether the general consensus of experts in the same field recognizes a methodology, Daubert expands the scope of consideration and looks at several other factors as well.

Daubert is ultimately a relative, subjective test, which means it isn’t necessarily the case that an expert’s methods must objectively or unambiguously meet all five of these criteria without controversy. Instead, it is the judge’s role to consider each of these criteria and the extent to which an expert’s testimony is satisfactory enough to render an overall decision on its admissibility.

Therefore, you can see how analysis under a Daubert standard might result in a different outcome in a trial than a Frye standard. In Frye, consensus of the expert community is everything.

But in Daubert, other factors might shift the balance of evidence. So even if the expert community doesn’t unanimously endorse an expert’s methods, the testimony might still be admitted into evidence if the other factors regarding expertise are satisfied.

If a judge finds that the Frye or Daubert standard has not been met, then he or she may choose to exclude some or all of an expert’s testimony. Often, an expert’s testimony will only be limited to the extent that the methodology is found to be unreliable or questionable.

As a result, expert witnesses may be permitted to offer opinions on one subject area within a case’s context but not in another area. Still, the extent to which an expert witness’s testimony is excluded in a case may negatively impact the judicial process, so it is important that experts are careful in constructing opinions and commentary that meet the appropriate legal standards.

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Attorneys Should Be Thorough When Using Expert Witnesses

Attorneys hiring expert witnesses obviously cannot tell an expert witness what opinions to offer, nor should an expert’s opinions be influenced in any way by the relative arguments or strategies of the parties involved a lawsuit. Expert witnesses are advocates of truth, and their opinions should not reflect any bias toward or away from litigants.

However, attorneys working with experts should carefully review any written expert reports or testimony before filing to ensure that the appropriate legal standard for credible expert methodology is satisfied. When needed, an attorney can suggest that an expert supports his or her opinions with citations, references, and other evidence that demonstrates the relevant criteria.

Frye and Daubert challenges can be very complicated. However, careful work by experts and careful review by attorneys can avoid a lot of headaches down the road with respect to expert scrutiny and potential exclusion of testimony.

Gary Deel

Dr. Gary Deel is a faculty member with the Dr. Wallace E. Boston School of Business. He holds an M.S. in Space Studies, an M.A. in Psychology, an M.Ed. in Higher Education Leadership, an M.A. in Criminal Justice, a J.D. in Law, and a Ph.D. in Hospitality/Business Management. Gary teaches classes in various subjects for the University, the University of Central Florida, the University of Florida, Colorado State University, and others.

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