Legal ·
Two broad framework families govern the admissibility of expert testimony in U.S. courts: a reliability-based gatekeeping framework used in federal courts and a majority of state courts, and a narrower general-acceptance framework retained in a smaller number of states. Understanding which framework applies in your jurisdiction is essential to retaining experts and challenging opposing opinions.
The admissibility of expert testimony in U.S. courts is governed by one of two broad framework families, depending on the jurisdiction. Federal courts and a substantial majority of state courts apply a reliability-based gatekeeping framework. A smaller number of states continue to apply an older general-acceptance framework. Knowing which framework applies - and what it requires - is essential to the preparation, retention, and challenge of expert witnesses. Attorneys are responsible for confirming the governing framework against primary sources.
Under the reliability framework, the trial judge serves as a gatekeeper with an affirmative obligation to ensure that expert testimony meets threshold requirements of reliability and relevance before it is presented to the jury. Non-exclusive reliability factors include whether the expert's theory or technique has been tested; whether it has been subjected to peer review and publication; the known or potential rate of error; the existence and maintenance of controlling standards; and whether the methodology is generally accepted in the relevant scientific or professional community. Fed. R. Evid. 702; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Note that general acceptance is one factor among several - it is not the sole criterion.
The general-acceptance framework, by contrast, asks only whether the expert's methodology is generally accepted by the relevant scientific community. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Courts applying this framework do not separately evaluate testability, peer review status, or error rates; acceptance by practitioners in the field is the dispositive question. The general-acceptance framework is sometimes described as more conservative toward novel methodologies but more permissive toward well-established (if not always rigorously validated) techniques that have achieved broad professional acceptance.
For life care planners, methodology challenges most commonly target specifics rather than the discipline itself. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Defense challenges to a life care plan often attack items that lack a treating or evaluating physician's recommendation, frequencies and durations that exceed what the clinical literature supports, cost figures drawn from the wrong geographic market or an undocumented source, and a life expectancy the planner adopted without medical support. Plaintiff challenges to a defense rebuttal plan may focus on whether the reviewer actually examined the evaluee's current function or simply deleted items from the plaintiff's plan without a stated basis.
Courts have generally upheld a range of methodological choices as long as the planner can identify the published standards followed, the foundation for each item, and the reason the approach fits the specific case. General Electric Co. v. Joiner, 522 U.S. 136 (1997). A conclusory assertion that an item is "customary" for the diagnosis, without a record foundation or a citation to clinical guidance, is more vulnerable to exclusion.
Practitioners should be aware that several states have adopted modified or hybrid versions of these frameworks, and a handful have codified their admissibility rules in evidence statutes. Counsel preparing for expert witness litigation in an unfamiliar jurisdiction should research the applicable framework against primary sources and the relevant case law interpreting that framework in the specific expert discipline involved.