Mississippi’s Recent Adoption of the Daubert Standard and Displacement of the Frye “General Acceptance” Standard in the Admission of Expert Testimony

By: Wells Marble & Hurst, PLLC
www.wellsmar.com

In 1993, the United States Supreme Court rejected the Frye test and adopted a new standard in Daubert.  Daubert provides that expert opinions are admissible if (1) relevant in that it must assist the trier of fact in making a decision relevant to the issue before the trier of fact, and (2) that the testimony is reliable--a determination of reliability is left largely to the discretion of the trial court.  Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 587, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).  Some assistance in determining reliability is found in Daubert’s illustrative, non-exhaustive list of reliability factors, which include whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; whether, in respect to a particular technique, there is a high known or potential rate of error; whether there are standards controlling the technique's operation; and whether the theory or technique enjoys general acceptance within a relevant scientific community.  These factors may weigh differently depending on the nature of the issue, the expert's particular expertise, and the subject of the testimony.

The Mississippi Supreme Court repeatedly declined to follow the Daubert standard from its federal adoption in 1993 until 2004.  In Mississippi Transportation Commission v. McLemore, 863 So.2d 31 (Miss. 2004), the Mississippi Supreme Court held that “Mississippi Rule of Evidence 702 as adopted in 2003 rejected the Frye standard and adopted the modified Daubert standard.”  Both the Mississippi Supreme Court and United States Supreme Court have noted that “[the] rigidity of the ‘general acceptance’ test also conflicts with the goals of the Federal Rules which include reducing the traditional barriers to opinion testimony.”  McLemore, 863 So.2d at 36.  According to the Mississippi Supreme Court, a trial judge does have such “gatekeeper” responsibilities under both  McLemore and Daubert.  However, “the trial court has ‘considerable leeway’ in deciding in a particular case how to go about determining whether expert testimony is reliable.”  Id. at 37.  A trial judge’s rulings of of admissibility under Daubert are subject to an abuse of discretion standard.  Id. at 39.  That is not to say that a trial judge who is so inclined cannot exclude opinions based on “junk science.”  According to the Mississippi Supreme Court, a trial judge is to determine if expert testimony  “rests on a reliable foundation and is relevant in a particular case.”  Id. There must be a “valid scientific connection to the pertinent inquiry as a precondition to admissibility.” Id. at 592, 113 S.Ct. 2786.  Under Daubert, the party offering the expert's testimony must show that the expert has based his testimony on the methods and procedures of science, not merely his subjective beliefs or unsupported speculation.  Id. at 590, 113 S.Ct. 2786.

It remains to be seen whether trial courts will apply Daubert consistently with federal opinions.  In a recent unpublished case decided by the Mississippi Court of Appeals, Daughtery v. Conley, No. 2003-CA-02092-COA, the court in reviewing the application of the Daubert test relied almost entirely on the fact that the expert evidence was not accepted in the relevant community.  In another recent unpublished opinion, Sports Page Inc. v. Punzo, No. 2003-CA-00319-COA, the court, applying Daubert, held that expert testimony would not aid the trier of fact and that therefore the testimony was irrelevant under the first part of the Daubert test.  It will take some years before Daubert issues make their way to the Supreme Court and practitioners have a sense of how closely the Mississippi Supreme Court and the trial courts will follow federal decisions.

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