United States.6 Under Frye, which was the dominant standard for seventy years,7 expert testimony was admissible if a trial judge concluded that the expert’s methodology was “sufficiently established to have gained general acceptance in the particular field in which it belongs.”8 In 1993, however, the U.S. The original version of Rule 702 of the Federal Rules of Evidence, adopted in 1975, set the standard for admitting expert testimony in federal litigation by declaring that “f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”5īefore Daubert, the admissibility of expert testimony was governed by the general acceptance test outlined in Frye v. Joiner,4 Kuhmo, and Weisgram, and the codification of those standards in the recent amendments to Rules 701 and 702 of the Federal Rules of Evidence (2) discuss the more notable federal and state court decisions applying Daubert (or a Daubert-like test) to expert testimony about lost future profits in a franchise, distributor, or dealer dispute and (3) offer some practical suggestions on how and when to challenge expert testimony in a lost-profit case and how to cope with a Daubert challenge. Supreme Court’s decisions in Daubert, General Electric Co. This article will (1) review the standards for admitting expert testimony under the U.S. Marley Co.3 makes clear, a successful Daubert challenge can have dramatic consequences-turning a plaintiff’s verdict at trial into a defendant’s judgment on appeal. Supreme Court’s recent decision in Weisgram v. These amendments promise to be a powerful tool for attacking expert opinions on lost profits in franchise disputes, since expert testimony is often critical to proving damages in a franchise case, and lost-profit projections typically involve a greater degree of speculation than do other forms of expert testimony. This trend culminated in the December 2000 amendments to Rules 701 and 702 of the Federal Rules of Evidence, which require trial judges to review rigorously an expert’s opinions for reliability before admitting those opinions into evidence. Supreme Court greatly expanded the obligation of federal district judges to act as gatekeepers to exclude speculative, unreliable expert testimony. Merrell Dow Pharmaceuticals,1 and continuing through Kuhmo Tire Co. Beginning with its landmark ruling in Daubert v.
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