Daubert History, Continued.  This page is devoted to State expert witness Daubert style rule law.

3. The State Courts.

The states generally have rules like the federal rules of evidence. In interpreting the rules of evidence, most states have given great weight to the federal rules and interpretations.   But there are significant variations.  I give you, below,  Texas and North Dakota as examples of the variances you will find among the states.

    A. Texas.

In Texas the seminal case is E.I. du Pont de Nemours & Co. v. Robinson, 923 SW2d 459 (Tex 1995). In Robinson, the Texas Supreme Court adopted the test for admissibility of scientific expert testimony formulated by the United States Supreme Court in Daubert. Robinson added two additional primary factors so that, in Texas, counsel should think in terms of :

1. the extent to which the theory has been or can be tested;

2. the techniques’ potential rate of error;

3. whether the theory has been subjected to peer review and publication;

4. whether the underlying theory or technique ha been generally accepted as valid by the relevant scientific community

5. extent to which the technique relies upon the subjective interpretation of the expert; and

6. the non-judicial uses that have been made of the theory or technique.

In Robinson, the Texas court seemed to set out some additional items for consideration by the trial courts by the way in which the court rejected the Robinson testimony.  Specifically, the court expanded on some of the factors of reliability as follows:

The expert had failed to consider alternative causes of the damages.

The research was done for the purpose of litigation.

The expert's methodology had not been subjected to peer review or publication.  Although a statistical analysis showed a 99% probability the at the conclusions were correct, the Robins court required an analysis that the methodology )not the conclusions) were subjected to a rate of error analysis.

The expert's methodology was not generally accepted by the relevant scientific community.

In Olin Corp. v. Smith, 990 SW2d 789, 795, 797 (Austin 1999, no pet. h.) the appeals court properly stated the Texas law that:

"The supreme court has made clear that the factors set in Robinson for assessing the reliability of expert testimony are nonexclusive and "will differ with each particular case and the nature of the evidence offered."[Emphasis is that of author.] The [Texas Supreme] court has reasoned that those factors are germane in evaluating whether...[the] opinion in the courtroom will withstand the same scrutiny that it would in the particular industry among the expert's professional peers."

Cf., Gammil v. Jack Williams Chevrolet, Inc., 972 SW2d 713 (Tex. 1998), all though rejecting the expert testimony as not reliable, pointed out that every factor on the Robinson list did not have to be met.

The Texas Court has used the Robinson factors to exclude testimony that ordinarily would be though of as being admissible. For example in Broders v. Heise, 924 SW2d 145 (Tex. 19960 an emergency room physician testified that the defendant emergency room physician had administered Demerol with Phenegran and this was the actual cause of death. Plaintiff did not have the emergency room expert witness testify that he had expertise on the specific issue of Demerol with Phenegran causing death. And thus the plaintiff found his expert opinion taken out of the case.

The Texas Court also has made itself an expert in statistics by declaring that statistical proof must show a relative risk in excess of 2.0 and a confidence interval which does not include 1.0, before statistics can be relied on to show causal connection. "Without knowing the significance level or the confidence interval, there is no scientifically reliable basis for " an expert opinion based on the published studies, according to the Texas court.

Worse yet, the Texas Court has made added expense a reality of Texas practice by its declaration that statements by the witness that the methodology is generally accepted and used by other experts in the field is not sufficient to establish the reliability of the methodology. Robinson, at 559. The result of the Robinson requirement is the hiring and court appearance of separate experts on methodology, separate from the experts giving the opinions!

    B. North Dakota.

North Dakota, before its adoption of the federal rules of evidence, historically showed a distrust of experts. E.g., a basic case in North Dakota refusing evidence in the form of an expert opinion is Meehan v. Great Northern Ry., 101 NW183 (ND1904), which stated:

The general rule of law is that witnesses must state facts within their knowledge, and not give their opinions or their inferences.., it is not sufficient to warrant the introduction of expert evidence that the witness may know more of the subject of inquiry and may better comprehend and appreciate it than the jury. . . . The rules admitting the opinions of experts should not be unnecessarily extended Experience has shown that it is confine witnesses to facts in all cases where that is much safer to the testimony where practicable, and leave the jury to exercise their judgment and experience upon the facts proved. Where witnesses testify to facts they may be specifically contradicted..., but they may give false opinions without fear of punishment. It is generally safer to take the judgments of unskilled jurors than the opinions of hired and generally biased experts. Id.,185.

But after the adoption of Rule 702, the North Dakota Court did a 180 degree turn in admitting expert evidence. The theory embraced was that it is a matter for the trial court's discretion, as to there being "expertise," but the judge had no discretion to determine the strength of the testimony, and generally there should be an admission into evidence of the expert’s testimony. See, e.g., Victory Park Apartments v. Axelson, 367 NW2d 155 (ND 1985).

We have a separate paper on the state of the law in North Dakota.   However, a typical case is  Gonzalez v. Tounjian, 2003 ND 121 http://www.court.state.nd.us/court/opinions/20020263.htm , in which the court stated, on a Daubert style challenge to the soundness of the expert's opinon:

Dolund also challenges the basis for Dr. Griffin's testimony, arguing he was not present at the scene of the fire, did not conduct neurological tests, and did not provide continuing treatment to Gonzalez after she was transferred from the emergency room. However, the weakness of the underlying basis for an expert's opinion goes to the credibility of the testimony, not admissibility:

As we have concluded in previous appeals attacking the basis for an expert's opinion, ordinarily weakness in an expert's opinion affects credibility, not admissibility. The trial court decides the qualifications of the witness to express an opinion on a given topic, but it is the trier of fact whose job it is to decide the expert witness's credibility and the weight to be given to the testimony.

Myer, 2001 ND 123, ¶ 20, 630 N.W.2d 62 (citations omitted); see also Kluck v. Kluck, 1997 ND 41, ¶ 12, 561 N.W.2d 263; Horstmeyer, 534 N.W.2d at 837. Credibility is a matter for the trier of fact, and the jury was entitled to give Dr. Griffin's testimony as much or as little weight as the jury felt it deserved. See Victory Park Apartments, Inc. v. Axelson, 367 N.W.2d 155, 163 (N.D. 1985).

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