Missouri is the latest state to consider jumping on the Daubert bandwagon. The Daubert standard for the admissibility of expert opinion testimony requires judges to exclude opinions that are not based on reliable methodology. Proponents of the Daubert standard argue that it protects against jury verdicts based on “junk science.” The difficulty of deciding whether opinions are based on “junk science” is summed up in the title of a scholarly article that examines the issue: “Our Science is Sound Science and Their Science is Junk Science.”
The Daubert standard governs expert testimony in federal court. About 35 states have adopted some form of the Daubert standard, although (as ExpertPages recently reported) the Florida bar is asking its state supreme court to reject the Florida legislature’s adoption of Daubert. Most of the remaining states adhere to the Frye standard, which admits expert testimony if it is based on scientific methods or findings that have gained general acceptance within the relevant scientific community.
Missouri follows neither Daubert nor Frye. The Missouri test of admissibility, adopted by the state legislature in 1989, requires “the facts and data upon which the expert relies to be of a type reasonably relied upon by experts in the field” provided that the testimony is “otherwise reasonably reliable.”. As is true in federal court, the threshold question in Missouri is whether expert testimony would assist the jury in finding a fact or understanding the evidence.
Critics Attack Missouri Standard of Admissibility
Testifying in support of a bill that would adopt the Daubert standard of admissibility in Missouri, Brian Bunten, the general counsel for the Missouri Chamber of Commerce and Industry, told a legislative committee that “Missouri state judges have their hands tied by an outdated rule for admitting expert testimony—a rule that dates back to 1923 and has been abandoned by the vast majority of states in one form or another.” Bunten’s reference to the Frye standard was misguided, however, since the Missouri legislature rejected Frye when it adopted the current standard in 1989.
It is nevertheless accurate that the current Missouri standard is less restrictive than Daubert. Bunten testified that the U.S. Chamber of Commerce ranked Missouri’s judicial system 42nd out of 50 and said that “the American Tort Reform Association ranked Missouri’s judicial system the fourth worst judicial hellhole in the United States, explicitly citing the lack of Daubert standard in our courtrooms as the reason for the poor rating.”
“Judicial hellhole” is a buzzword that is typically used to describe states in which consumers and injury victims have a better-than-average chance of winning compensation from juries. Notably, the Chamber of Commerce and the American Tort Reform Association both represent the business community, which has an interest in shielding businesses from jury verdicts. Advocates for injury victims and consumers are likely to prefer Missouri’s current standard.
Does the Standard Matter?
Since “junk science” is not generally accepted by any scientific community, expert opinions based on unreliable methodologies should be inadmissible under either Frye or Daubert. It is not clear that the standard adopted by a state actually has a real-world impact on trial outcomes. It is also unclear that judges, who typically lack a scientific background, are more capable than juries of evaluating the reliability of methodologies employed by forensic scientists and other experts.
A widely cited study by law professors Edward Cheng and Albert Yoon suggests that whether a state follows the Daubert or Frye standard makes little difference, at least in tort cases. If there was ever a serious problem of expert witnesses relying on “junk science,” as proponents of the Daubert standard claim, judicial awareness of that problem has increased, regardless of the standard the state applies. As judges have developed a stronger understanding of what makes an expert opinion reliable, they have become less inclined to allow juries to consider unreliable opinions.
In addition, the fact that jurors are allowed to consider an expert opinion does not mean that jurors will accept it. The fear that juries are swayed by junk science finds little support in empirical studies. Juries are usually capable of distinguishing treasure from junk.
In some instances, the Daubert standard authorizes the admission of expert testimony that the Frye standard would disallow. Opinions that are derived from reliable methodology are admissible under Daubert even if they have not gained general acceptance in the scientific community. To the extent that Daubert liberalizes the admissibility of expert opinions, it may not be the shield that some members of the business community believe it to be.
As Robert Underwood wrote, “nothing fosters belief like self interest.” That can be true of experts who tailor opinions to favor the party who pays for those opinions. It can also be true of lawyers who argue for standards of admissibility that they regard as improving their chances of winning cases. In the end, expert testimony plays a vital role in the justice system and will continue to do so regardless of the standards of admissibility that states choose to adopt.