The Frye Standard
In 1923, the case of Frye v. United States, 293 F. 1013, set the standard for when scientific evidence would be allowed into federal courts. The Court gave two ways that expert witnesses could offer such evidence. For “new or novel” scientific principles or discoveries, they “must be sufficiently established to have gained general acceptance in the particular field [of science to which they belong].” In other words, the lawyer must demonstrate that other scientists in the community generally accept the principles and methods that inform his or her expert’s testimony.
Secondly, when the science involved is not “new or novel,” the “pure opinion” of the expert is also admissible, even if the opinion is not based on generally accepted science, as long as the opinion is supported by the expert’s personal experience, observation, and training. Pretty much every state of the union, including Florida, fell into line with this line of thinking and the Frye standard dominated for 70 years.
In car accident cases it used to be common for doctors to testify as experts, giving their opinion as to what likely caused an injury or how permanent the injury would be, based on the doctor’s personal experience dealing with patients who have suffered similar vehicle-related injuries in the past.
The Daubert Standard
However, in 1993, the Supreme Court adopted a new evidentiary standard for expert testimony in federal courts in a case called Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 and just like under Frye, states across the nation fell into line. Florida, too, recently adopted the Daubert standard, which reads as follows.
If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:
i. The testimony is based upon sufficient facts or data;
ii. The testimony is the product of reliable principles and methods; and
iii. The witness has applied the principles and methods reliably to the facts of the case.
The biggest change is that there is no mention of “pure opinion” testimony in the new rule. This marked the end of doctors testifying about car injuries based purely on their opinions, even if those opinions are based on decades of training and experience. The same is true for accident reconstructionists who generally testify about who caused an accident, who was at fault, etc.
If there was any hope for wiggle room before, the courts have solidly closed that door with its ruling in Booker v. Sumter County Sheriff’s Office, which says, “By adopting the Daubert standard, the Florida legislature….made clear that “pure opinion testimony” was no longer admissible. Pure opinion testimony is testimony based only on the personal experience and training of the expert.”
Under the new rule, even if a doctor offered evidence that the scientific community in which he or she worked generally accepted his or her methods and principles, that alone would not be good enough for the court.
There is now a three-step test. The court must judicially determine whether the scientific principles are reliable, regardless of what the scientific community thinks. In addition, the court must determine whether the witness had enough facts or data to form an opinion and finally whether the witness reliably applied the science to the facts of the situation at hand.
How to Testify Under Daubert
So what does a doctor or reconstructionist need to do to testify about car accidents? First of all, the person needs to be show that he or she is “qualified as an expert by knowledge, skill, experience, training, or education.” In the case of a reconstructionist, he should have a mechanical engineering (or similar) degree or have worked for an organization like the National Highway Traffic Safety Administration (NHTSA) dealing with car accidents. A doctor should specialize in the types of injuries at issue, such as an orthopaedic surgeon for knee problems.
Secondly, the witness’s methods and technology should be generally accepted. This step is basically the same as the Frye standard, except that now general acceptance does not end the inquiry under Daubert, it is merely a part of the court’s inquiry into whether or not the science is “reliable” in the court’s opinion. A reconstructionist needs to use technology that is prominent in his or her field and methods that are accepted by the NHTSA. A doctor, similarly, should use standard medical equipment and use only widely accepted methods for observing, treating, and giving prognoses.
Thirdly, the witness’s conclusions must make sense and the court must be able to understand how the expert reached his or her conclusions from the evidence. For example, if the vehicle is damaged on the passenger side, yet the expert claims that the principal impact was on the driver’s side, the testimony may be rejected as unreliable unless the expert has a very good explanation. Similarly, a doctor will not get away with blaming the accident for a victim’s unusual physical ailments or disorders without clearly showing the connection and offering scientific literature in support of that connection.
Fourthly, the expert must carefully examine the materials. A reconstructionist needs to look at the accident scene in person, as well as the police report, deposition transcripts, the vehicles, and so on. A doctor would need to look at the reports as well to the extent that they bear on injuries, but would also need to run medical tests on the victim to verify or support his or her observations and theories. A cursory examination could lead to the court rejecting the expert testimony on the basis that the expert did not have enough facts.
Finally, the witness must be careful not to talk in terms of pure opinion, but in terms of what the science has to say, given the facts at issue in the case.