The movement to require judges to follow the Daubert standard when they decide whether to admit expert testimony in a trial has met with success in a majority of states. The next state to make the change may be Minnesota. An advisory committee is considering whether the Minnesota Supreme Court should replace the state’s version of the Frye standard with the Daubert test. Whether the proposal will gain traction is unclear.
The Politics of Daubert
The push for the Daubert standard is often political. Insurance companies and businesses that manufacture or sell products usually believe that the Daubert standard favors defendants in civil suits. For that reason, they lobby state legislatures to adopt Daubert, a standard that is widely seen as giving judges greater authority to evaluate and reject unreliable expert testimony.
On the other hand, plaintiffs’ lawyers usually oppose the adoption of Daubert on the ground that it favors the interests of businesses over those of victims. Missouri’s governor recently vetoed the state’s legislative adoption of Daubert because (in his view) the standard hurts injury victims by increasing the cost of litigation.
In some states, the legislature’s decision to enact a Daubert rule does not assure that courts will embrace the rule. For example, the Florida legislature enacted a Daubert standard, but the Florida Supreme Court may decide that the authority to change the state’s rules of evidence is vested in the state judiciary, not the legislature. The court will soon decide whether to accept or reject the legislature’s Daubert rule.
Unlike Missouri and Florida, the impetus to change the rule in Minnesota is coming from a rules committee, not from state lawmakers. Minnesota’s rules of evidence are generally fashioned by the state’s supreme court. The court has noted that is has “primary responsibility under the separation of powers doctrine” to create rules of evidence, while recognizing an obligation to follow “reasonable” rules of evidence enacted by the state legislature.
To Change or Not to Change?
Until 1980, Minnesota relied on the Frye test of admissibility. The court admitted expert testimony if it was based on a scientific technique that was generally accepted in the relevant scientific community. Minnesota modified that test in 1980 by adding the requirement that expert testimony, to be admissible, must have a scientifically reliable foundation. Minnesota’s modified test has come to be known as the Frye-Mack standard.
The Minnesota Supreme Court’s Advisory Committee on the Rules of Evidence is studying a proposal to replace the Frye-Mack standard with the Daubert standard. The committee’s chair commented that the committee has “a general sense that there is dissatisfaction with Frye-Mack among Minnesota judges and lawyers.” At the same time, the chair made clear that he was speaking for himself, not for the committee.
Dissatisfaction with Frye-Mack is probably strongest among lawyers who represent the business community, just as dissatisfaction with Daubert tends to be strongest among lawyers who represent plaintiffs. In a large majority of cases, the standard makes no difference, since most expert testimony is likely to be admitted under either standard. In cases where expert evidence is more controversial, however, the more restrictive Daubert standard usually favors defendants over plaintiffs, since plaintiffs must often rely on expert testimony to meet their burden of proof.
Given that dynamic, it isn’t surprising to read in Minnesota Lawyer that “most in the plaintiffs’ bar wants the Minnesota courts to stick with Frye-Mack, while the defense bar would welcome a switch to Daubert.” Whether judges are also divided is unknown, but retired Minnesota Supreme Court Justice Paul Anderson told Minnesota Lawyer that Frye-Mack is a workable standard that is supported by a consistent and well-established body of precedent. Judges may support the Frye-Mack standard simply because they are familiar with it.
On the other hand, Justice Anderson observed, the Daubert standard has been the subject of varied interpretations in state and federal courts. Some courts emphasize that Daubert liberalized the admissibility of expert testimony, while Daubert’s detractors insist that the standard encourages judges to usurp the role of jurors in deciding whether expert opinions have merit. Justice Anderson asks “Why should we force our attorneys to read the entrails of multiple, conflicting opinions from across the country to try to figure out a new standard?”
What Will Minnesota Do?
Whether the advisory committee will recommend a change is far from a foregone conclusion. The committee expects to solicit public comment in the coming months. As the issue makes its way onto the radar of Minnesota’s litigators, the committee will need to sift through a variety of conflicting opinions.
Regardless of the advisory committee’s recommendation, the Minnesota Supreme Court might not be inclined to change the current rule. The court unanimously rejected Daubert (and reaffirmed Frye-Mack) in a 2000 decision that questioned whether judges are any more capable than juries of resolving disagreements among experts about the reliability of an expert’s methodology. The court also observed that federal courts have failed to apply Daubert uniformly and that its adoption in Minnesota would upset a settled rule that produces consistent results. Even if the advisory committee recommends adopting Daubert, the court might decide that no changes have occurred since 2000 that would warrant a significant revision of Minnesota law.