Bucking the trend in jurisdictions that apply the Frye general acceptance test (such as Florida and Illinois), in November the California Supreme Court stated that trial courts have “substantial gatekeeping” responsibilities, and favorably cited federal Supreme Court precedents like Daubert v. Merrell Dow Pharmaceuticals, Joiner v. General Electric Co., and Kumho Tire v. Carmichael. Perhaps of greatest significance, as this has been an issue of ongoing controversy in both state and federal (despite Joiner and clear language in amended Rule 702), the Court noted that the gatekeeping responsibility “ means that a court may inquire into, not only the type of material on which an expert relies, but also whether that material actually supports the expert’s reasoning. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered [citing Joiner].” Interestingly, the California court reached this ruling under the California evidence code, while limiting Frye (in California, “Kelly-Frye“) to novel scientific techniques. Sargon Enterprises, Inc. v. University of Southern Cal., 288 P.3d 1237 (Cal. 2012). So we can tentatively put California in the strict scrutiny camp.
Meanwhile, I had somehow missed that Wisconsin, which was perhaps the last state to allow any qualified expert to testify to just about anything “relevant” with virtually no judicial oversight, amended its code of evidence by statute in 2011 to adopt the language of amended federal rule 702. As near as I can tell, the Wisconsin Supreme Court has not yet had the opportunity to recognize the new rule, and it’s possible that the court will find some excuse to declare that it won’t abide by it. But in the meantime, lower Wisconsin courts are applying it, and Wisconsin has gone from the “let-it-all-in” state to a “gatekeeping-reliability” state.
I’ve just completed a paper on the state of expert testimony rules in federal court that I plan to send out to law reviews soon, so I’ll like have more to say about expert testimony in future posts.