Daubert Rules of Expert Witness Testimony Admissibility

1

The State Rules of Admissibility

A Survey of How Expert Testimony Is Admitted In All 50 States

With Emphasis on Accident Reconstruction and Biomechanics

2

Table of Contents

Alabama 3 Massachusetts 23 South Dakota 45

Alaska 4 Michigan 24 Tennessee 46

Arkansas 5 Minnesota 25 Texas 47

Arizona 6 Mississippi 26 Utah 48

California 7 Missouri 27 Vermont 49

Colorado 8 Montana 28 Virginia 50

Connecticut 9 Nebraska 29 Washington 51

Delaware 10 Nevada 30 West Virginia 52

Florida 11 New Hampshire 32 Wisconsin 53

Georgia 12 New Jersey 33 Wyoming 54

Hawaii 13 New Mexico 34

Idaho 14 New York 35

Illinois 15 North Carolina 36

Indiana 16 North Dakota 37

Iowa 17 Ohio 38

Kansas 18 Oklahoma 39

Kentucky 19 Oregon 40

Louisiana 20 Pennsylvania 42

Maine 21 Rhode Island 43

Maryland 22 South Carolina 44

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3

Alabama

Daubert, Frye or other. Frye/Rules of Evidence*1

License Required Yes**2

Accident Reconstruction Yes3

Biomechanics Yes4

*The Alabama courts have not abandoned the Frye test of admissibility; however, they

also consider the Rules of Evidence which requires the witnesses to be qualified and helpful to

the trier of fact.

**An engineering expert witness only needs a license when testifying about work that

can only be legally done by a professional engineer. The witness does not have to be licensed in

Alabama, but in some jurisdiction of the U.S.

1 Courtaulds Fibers, Inc. v. Long, 779 So. 2d 198 (2000)

2 Arthur v. Bolen, 41 So. 3d 745, (2010)

3 Gooden v. City of Talladega, 966 So. 2d 232, (2007)

4 CSX Transportation, Inc. v. Miller, 46 So. 3d 434 (2010)

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Alaska

Daubert, Frye, or other Daubert5

License Required No6


Biomechanics Yes8

Tests conducted in preparation for a trial should be peer-reviewed to ensure they pass a

Daubert challenge. No side in a trial may have more than three expert witnesses unless given

special permission by the court. An expert witness retained or employed to give testimony in a

case must file a pre-trial report at the direction of the court with a complete statement of all

opinions to be given, information or data used to form the opinions, any exhibits to be offered in

support of their opinions, the witness’s qualifications, a list of all publications by the witness in

the previous ten years, the compensation to be paid for the study and testimony, and a list of

other trials and depositions given in the previous four years.

5 State v. Coon, 974 P. 2d 386 (1999)

6 Little Susitna Construction Co. v. Soil Processing, 944 P. 2d 20

7 Marron v. Stromstad, 123 P.3d 992 (2005)

8 Cable v. Shefchik, 985 P. 2d 474 (1999)

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Arizona

Daubert, Frye, or other Frye*9



Biomechanics Yes12

*The Frye test does not apply to experts who reach their conclusions through “inductive

reasoning based on his or her own experience, observation, or research.” Only when using novel

scientific principles or procedures developed by others is it necessary for an expert to pass a Frye

hearing.

9 Logerquist v. Mcvey, 196 Ariz. 470 (2000)

10 Bliss v. Treece, 134 Ariz. 516 (1983)

11 Lohmeier v. Hammer, 148 P.3d 101 (2006)

12 Lohmeier v. Hammer, 148 P.3d 101 (2006)

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Arkansas

Daubert, Frye, or other. Daubert13


Accident Reconstruction Yes*15

Biomechanics **

*Expert accident reconstruction testimony is only allowed in situations where there are

no eye witnesses, the eye witness testimony is contradictory, the eye witness would not be able

to understand what caused the accident, or the jury would not be able to draw their own

conclusions.

**There is no case law on biomechanics testimony to date, but occupant kinematics

evidence has been allowed.16

13

Green v. Alpharma, Inc., 373 Ark. 378 (2008) 14

Parker Construction Co. v. Aldridge, 312 Ark. 69 (1993) 15

Drope v. Owens, 298 Ark. 69 (1989) and Southern Farm Bureau Cas. Ins. Co. v. Daggett, 354 Ark. 112 (2003) 16

Carr v. GMC, 322 Ark. 664 (1995)

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California

Daubert, Frye, or other Other: Kelly-Frye*17

License Required No**18


Biomechanics Yes20

*The Kelly-Frye test is basically the Frye test with two additional requirements: (1) the

witness must be qualified in the field they offer testimony in, and (2) the methods used to gather

data must also meet the general acceptance rule. The Kelly-Frye test only applies to new science.

**To be declared an expert, a witness does not need any particular license, but must

demonstrate specialized knowledge in their field.

17

People v. Kelly, 17 Cal. 3d 24 (1976) 18

People v. King, 266 Cal. App. 2d 437 (1968) 19

Pannu v. Land Rover North America, Inc., 191 Cal. App. 4th

1298 (2011) 20

Soule v. GMC, 8 Cal. 4th

548 (1994)

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Colorado

Daubert, Frye, or other Other: Rules of Evidence*21



Biomechanics Yes24

*Colorado Rules of Evidence, Rule 702 governs the admissibility of expert testimony in

Colorado. It requires the testimony to be based on reliable scientific principles, the witness to be

qualified in their field, and that the testimony will be helpful to the jury in understanding the

facts. Reliability is judged by a flexible list of factors: (1) if the techniques used to gather data

can be tested, (2) if the techniques have been subjected to peer review, (3) the rate of error, (4) if

the technique has been generally accepted, (5) the relationship between the expert’s technique

and other more established methods, (6) the existence of supporting literature, (7) uses for the

technique outside of litigation, (8) types of error generated by the technique, and (9) if the

techniques have been accepted in other similar cases. The expert’s qualifications and helpfulness

are more straightforward criteria and will be judged by the court.

Colorado also requires experts that have been retained to offer testimony to submit pre-

trial summaries of their opinions, methods, exhibits, qualifications, and all previous trials they’ve

offered testimony for in the previous four years.

21

People v. Shreck, 22 P.3d 68 (2001) 22

Huntoon v. TCI Cablevision, Inc., 969 P.2d 681 (1998) 23

Wark v. McClellan, 68 P.3d 574 (2003) 24

Schultz v. Wells, 13 P.3d 846 (2000)

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Connecticut

Daubert, Frye, or other Daubert*25



Biomechanics Yes28

*Connecticut added three requirements to the original Daubert four: (1) if the testimony

is objective, (2) if the witness can explain their testimony in a way that helps the jury, and (3) if

the expert’s methodology was developed solely for litigation or has other uses. These additional

factors are awarded less weight than the Daubert factors but can be important when the reliability

of the evidence is otherwise difficult to determine. The validity of the methodology is more

important than an expert’s qualifications.

25

Klein v. Norwalk Hospital, 299 Conn. 241 (2010) 26

Sovereign Bank v. Licata, 116 Conn. App. 483 (2009) 27

Hicks v. State, 287 Conn. 421 (2008) 28

DiPietro v. Farmington Sports Arena, LLC, 123 Conn. App. 583 (2010)

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Delaware


License Required Yes*30


Biomechanics Yes**32

*Delaware requires that engineers be licensed in a state, not necessarily Delaware, to

offer expert testimony.

**Delaware has very strict guidelines on how they judge biomechanics testimony. The

courts recognize biomechanical testimony that demonstrates what forces may have acted on a

body and what effects those forces may have had. If attempting to prove injury causation, the

testimony must provide definitive evidence that specific physical forces caused the precise injury

to the particular person. This testimony can contradict medical testimony when the physics of the

event clearly differ from what the medical testimony claims happened. One example of these

strict guidelines was a car accident case where the Delaware Supreme Court threw out

biomechanical testimony despite the unquestioned qualification of the expert and his methods,

because the victim of the accident had undergone back surgery for pain prior to the crash. The

courts decided that because the biomechanics expert had not reviewed the victim’s prior medical

history and did not take this “abnormal” body condition into account, his testimony was invalid.

29

M.G. Bancorporation v. LeBeau, 737 A.2d 513 (1999) 30

24 Del. C. §2802A 31

Bell Sports, Inc. v. Yarusso, 759 A.2d 582 (2000) 32

Eskin v. Carden, 842 A.2d 1222 (2004)

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Florida

Daubert, Frye, or other Frye33

License Required No*34



*The Florida law says that a witness may be qualified as an expert if they have a

professional degree from a college or university and has had special professional training and

experience, or if the individual is possessed of special knowledge or skill about a subject. For

engineering testimony, the witness is expected to be licensed unless extremely qualified.

**Biomechanics experts are allowed to testify about the forces in an accident and how a

body may react, but they are strictly prohibited from testifying about the extent of an injury that

an individual may have suffered in an accident. A witness must have a medical degree to testify

to specific injury causation.37

33

Marsh v. Valyou, 977 So. 2d 543 (2007) 34

Florida Rules of Civil Procedure Rule 1.390 35

Goldberg v. Florida Power and Light Co., 899 So. 2d 1105 (2005) 36

Griffen v. Kia Motors Corp., 843 So. 2d 336 (2003) 37

Mattek v. White, 695 So. 2d 942 (1997)

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Georgia




Biomechanics Yes*41

*Biomechanics expert prevented from testifying because he had not investigated either

the vehicle or the victim.

Go Dawgs!

38

Mason v. Home Depot U.S.A., Inc., 283 Ga. 271 (2008) 39

Agri-Cycle LLC v. Couch, 284 Ga. 90 (2008) 40

State Auto Property & Casualty Co. v. Matty, 286 Ga. 611 (2010) 41

Brown v. Hove, 268 Ga. App. 732 (2004)

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Hawaii

Daubert, Frye, or other Rules of Evidence*42



Biomechanics Yes45

*Hawaii’s rules of evidence dictate that an expert witness’s testimony must meet five

criteria to be permissible in court: (1) the testimony must be helpful to the jury, (2) it must aid

the jury’s understanding of the facts, (3) the underlying theory must be valid, (4) the correct

procedures must be used to gather the data, and (5) any procedures used to gather data must be

performed properly.

42

State v. Samonte, 83 Haw. 507 (1996) 43

Tabieros v. Clark Equipment Co., 85 Haw. 336 (1997) 44

Wemple v. Dahman, 103 Haw. 385 (2004) 45

Udac v. Takata Corp., 121 Haw. 143 (2009)

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Idaho




Biomechanics Yes49

*Idaho uses their Rules of Evidence as the test of admissibility. The main requirement is

that the evidence be helpful to the jury. The courts will also inquire about the principles and

methodology behind the expert’s opinion and whether they are testable and peer reviewed.

46

Weeks v. E. Idaho Health Services, 143 Idaho 834 (2007) 47

Jones v. Jones, 117 Idaho 621 (1990) 48

Chapman v. Chapman, 147 Idaho 756 (2009) 49

Chapman v. Chapman, 147 Idaho 756 (2009)

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Illinois




Biomechanics Yes53

*In Illinois, the Frye standard is mainly applied to the methodology and principles behind

the testimony, instead of the expert’s conclusions.

50

People v. Mckown, 236 Ill. 2d 278 (2010) 51

Somers v. Quinn, 373 Ill. App. 3d 87 52

Zavala v. Powermatic, Inc., 167 Ill. 2d 542 (1995) 53

Fronabarger v. Burns, 385 Ill. App. 3d 560 (2008)

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Indiana





*Part (b) of Indiana’s Rule 702 states that “Expert scientific testimony is admissible only

if the court is satisfied that the scientific principles upon which the expert testimony rests are

reliable.” The Indiana courts regard the Daubert factors as “helpful, but not controlling,” on

judging the reliability of expert witness testimony.

**Biomechanics testimony is not allowed to testify about causation, only the physical

forces involved and reaction of a body.

54

Steward v. State, 652 N.E.2d 490 (1995) 55

Hammond v. Indiana H. B. R. Co., 175 Ind. App. 644 (1978) 56

Witte v. Mundy, 820 N.E.2d 128 (2005) 57

Witte v. Mundy, 820 N.E.2d 128 (2005)

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Iowa

Daubert, Frye, or other Other*58



Biomechanics Yes61

*Iowa has an ad hoc approach to admitting expert testimony.62

They usually look for

testimony to be reliable and understandable. For especially novel or complex science, they do

identify the Daubert factors as general guidelines. Typically, a Daubert challenge is only proper

for expert scientific testimony. Technical and other non-scientific evidence does not have to pass

the Daubert criteria.

58

Ranes v. Adams Labs., Inc., 778 N.W.2d 677 (2010) 59

Ranes v. Adams Labs., Inc., 778 N.W.2d 677 (2010) 60

Nichols v. Schweitzer, 472 N.W.2d 266 (1991) 61

Oelwein Community School District v. Williams, 2003 Iowa App. Lexis 531 (2003) 62

State v. Hall, 297 N.W.2d 80 (1980)

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Kansas




Biomechanics *

*There is no case law on the admissibility of biomechanics evidence in Kansas.

63

Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan. 443 (2000) 64

Cline v. Kansas Gas & Electric Co., 182 Kan. 155 (1957) 65

McElhaney v. Rouse, 197 Kan. 136 (1966)

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Kentucky




Biomechanics Yes69

Experts must disclose how much they are being compensated for their testimony.

66

Toyota Motor Corp. v. Gregory, 136 S.W.3d 35 (2004) 67

Kentucky Revised Statutes § 322.010 68

Gorman v. Hunt, 19 S.W.3d 662 (2000) 69

CSX Transportation, Inc., v. Begley, 313 S.W.3d 52 (2010)

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Louisiana

Daubert, Frye, other Daubert70



Biomechanics Yes73

70

State v. Foret, 628 So. 2d 1116 (1993) 71

State v. Pelt, 448 So. 2d 1294 (1984) 72

State v. Pelt, 448 So. 2d 1294 (1984) 73

Taylor v. Progressive Security Insurance Co., 33 So. 3d 1081 (2010)

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Maine





*The rules of evidence require judges to consider if (1) the expert is qualified, (2) the

testimony is relevant, and (3) the testimony will assist the trier of fact. Indicators of reliability

include whether the testimony (1) has been peer-reviewed, (2) if other similar studies have been

done, (3) if other experts support the methods used in the testimony, (4) the expert’s

qualifications, and (5) if there is a scientific basis for causation.

**There is no specific case law about biomechanics, but occupant kinematics has been

approved by the Maine courts.

74

Searles v. Fleetwood Homes of Pa., Inc., 2005 ME 94 (2005) 75

State v. Caron, 2011 ME 9 (2011) 76

State v. Irving, 2003 ME 31 (2003) 77

State v. Caron, 2011 ME 9 (2011)

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Maryland




Biomechanics Yes81

*The Frye examination in Maryland also covers the methods and theories behind the

expert’s testimony. Testimony can also be excluded on lack of relevancy or qualification.

78

Blackwell v. Wyeth, 408 Md, 575 (2009) 79

Vroom v. Arundel Gas Co., 262 Md. 657 (1971) 80

Charles County Commissioners v. Johnson, 393 Md. 248 (2006) 81

Nissan Motor Co. v. Nave, 129 Md. App. 90 (1999)

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Massachusetts

Daubert, Frye, other Daubert*82

License Required No**83


Biomechanics Yes85

*Massachusetts still acknowledges general acceptance as the most critical factor for

judging expert testimony. Only when an expert’s testimony involves science that lacks general

acceptance is a Daubert hearing necessary. There are five foundational requirements for expert

testimony: helpfulness, qualifications, reliability of facts and data, reliability of process and

theory, and that the process/theory is applied to the facts/data reliably.

**The law does not include testimony as part of the practice of engineering that requires

a license, but there are no cases where an unlicensed engineer was allowed to give testimony.

82

Commonwealth v. Lanigan, 419 Mass. 15 (1994) 83

Leibovich v. Antonellis, 410 Mass. 568 (1991) 84

Commonwealth v. Merry, 453 Mass. 653 (2009) 85

Commonwealth v. Power, 76 Mass. App. Ct. 398 (2010)

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Michigan

Daubert, Frye, other Daubert/Frye*86




*Michigan incorporates both the Frye and Daubert admissibility standards into their rule

of evidence. Testimony must pass a Daubert challenge, and if it is novel evidence, the testimony

must be proven to be based on science that has achieved general acceptance in its field.

**Biomechanics experts are not allowed to testify about the precise cause of a specific

injury, or, in the case of product liability, the safety of a proposed improvement of a product.

86

Clerc v. Chippewa County War Memorial Hospital, 477 Mich. 1067 (2007) 87

People v. Hawthorne, 293 Mich. 15 (1940) 88

People v. Feezel, 486 Mich. 184 (2010) 89

Hershey v. Black and Decker, 2008 Mich. App. Lexis 1919

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Minnesota

Daubert, Frye, or other Frye+*90

License Required No**


Biomechanics Yes92

*Along with general acceptance, Minnesota requires that evidence found through the

expert’s use of scientific technique must be grounded in reliable science. Essentially, the

techniques that experts use to investigate an issue at trial must be scientifically valid.

**Minnesota law does not include expert testimony as part of the practice of engineering

requiring a license, but the case law seems to indicate almost all expert engineering testimony

was given by registered engineers.93

90

State v. Traylor, 656 N.W.2d 885 (2003) 91

W.G.O. ex rel A.W.O. v. Crandall, 640 N.W.2d 344 (2002) 92

Malith v. Soller, 2010 Minn. App. Unpub. Lexis 552 (2010) 93

Minn. Statute § 326.02

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Mississippi


License Required Yes*95


Biomechanics Yes97

*Experts wishing to provide engineering testimony in Mississippi must obtain a limited

license in Mississippi. To qualify for a limited license, the expert needs to be licensed as an

engineer in another jurisdiction.

94

Miss. Transportation Commission v. McLemore, 863 So. 2d 31 (2003) 95

Miss. Code Annotated § 73-13-3 96

Denham v. Holmes, 60 So. 3d 773 (2011) 97

Hyundai Motor America v. Applewhite, 53 So. 3d 749 (2011)

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Missouri




Biomechanics Yes101

*The Missouri statutes require that the court determine (1) if an expert is qualified, (2) if

the testimony will help the trier of fact, (3) if the testimony is based on data and methods found

reliable by other experts in the field, and (4) if the court finds the testimony otherwise reliable.

98

State Board of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146 (2003) 99

Yantzi v. Norton, 927 S.W.2d 427 (1996) 100

Hayes v. Price, 313 S.W.3d 645 (2010) 101

Eltiste v. Ford Motor Co., 167 S.W.3d 742 (2005)

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Montana




Biomechanics Yes105

*Only novel scientific evidence is subject to a Daubert challenge, but all scientific

evidence must be deemed admissible as stated in Montana Rules of Evidence, Rule 702.

Montana’s Rule 702 is equivalent to the Federal Rule 702 which requires that the witness be

qualified, the evidence be reliable, and the testimony be relevant to the case.

102

Hulse v. DOJ, Motor Vehicle Division, 1998 MT 108 (1998) 103

Hammer v. State, 2007 Mont. Dist. Lexis 131 (2007) affirmed by Montana Supreme Court 104

Perdue v. Gagnon Farms, Inc., 2003 MT 47 (2003) 105

Davis v. Church of Jesus Christ of Latter Day Saints, 244 Mont. 61 (1990) Overruled on other grounds.

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Nebraska




Biomechanics Yes109

106

Schafersman v. Agland Coop., 262 Neb. 215 (2001) 107

Northern Natural Gas Company v. Beech Aircraft Corp., 202 Neb. 300 (1979) 108

Ford v. Estate of Clinton, 265 Neb. 285 (2003) 109

Shipler v. GMC, 271 Neb. 194 (2006)

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Nevada




Biomechanics No**113

*The Nevada Rule 702 has three prongs to test admissibility: (1) that the witness is

qualified, (2) that their knowledge will assist the trier of fact, and (3) that they only testify to

matters within their field of expertise.

The most important factor is whether or not their testimony will assist the jury. To be

helpful, expert testimony must be based on reliable methodology. Courts determine reliability by

examining if the testimony is (1) within a recognized field of expertise, (2) testable and has been

tested, (3) published and subject to peer review, (4) generally accepted within the scientific

community, and (5) based on “particularized facts rather than assumption, conjecture, or

generalization…” If the testimony is based on an experiment the court is also required to

consider (1) if the experiment was controlled by known standards, (2) if the testing conditions

were similar to the conditions of the original incident, (3) if there was a known error rate, and (4)

if it was developed just for the litigation the expert was involved in.

**Biomechanics testimony was thrown out in a case as unreliable because the party

producing the witness failed to provide any evidence that biomechanics was within a recognized

110

Higgs v. State, 222 P.3d 648 (2010) 111

Hallmark v. Eldridge, 189 P.3d 646 (2008) 112

Sheriff, Clark County v. Burcham, 198 P.3d 326 (2008) 113

Hallmark v. Eldridge, 189 P.3d 646 (2008)

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field of expertise. Also, the witness failed to offer any scientific basis for his opinion as he did

not investigate the events of the accident or attempt to reconstruct them.

32

New Hampshire




Biomechanics Yes117

*A Daubert hearing is only necessary in cases where the evidence is based on science

that is not “taken for granted”.

114

Baker Valley Lumber v. Ingersoll-Rand Co., 148 N.H. 609 (2002) 115

Marcotte v. Peirce Construction Co., 111 N.H. 226 (1971) 116

Mclaughlin v. Fisher Engineering, 150 N.H. 195 (2003) 117

Vautour v. Body Masters Sports Industries, 147 N.H. 150 (2001)

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New Jersey




Biomechanics Yes121

*New Jersey Rule 702 has three requirements: that the testimony is reliable, helpful to

the trier of fact, and that the witness is qualified. Reliability can be established through general

acceptance or use of the testimony in other judicial decisions.

118

Hisenaj v. Kuehner, 194 NJ 6 (2008) 119

Alliance for Disabled in Action, Inc., v. Continental, 371 NJ Super. 398 (2004) 120

Campione v. Soden, 150 NJ 163 (1997) 121

Hisenaj v. Kuehner, 194 NJ 6 (2008)

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New Mexico




Biomechanics Yes125

122

Lee v. Martinez, 96 P.3d 291 (2004) 123

Baerwald v. Flores, 122 NM 679 (1996) 124

Harrison v. ICX, 98 NM 247 (1982) 125

Baerwald v. Flores, 122 NM 679 (1996)

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New York




Biomechanics Yes129

126

Parker v. Mobil Oil Corporation, 2006 Slip Op 7391 (2006) 127

Caprara v. Chrysler Corporation, 52 NY 2d 114 (1981) 128

Soto v. NY City Transit Authority, 6 NY3d 487 (2006) 129

Mathis v. NY Health Club, Inc., 288 AD2d 56 (2001)

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North Carolina




Biomechanics Yes133

*The North Carolina Rule 702 requires expert testimony to be (1) reliable, (2) given by a

qualified witness, and (3) relevant to the issue at trial.

130

Howerton v. Arai Helmet, Ltd., 358 NC 440 (2004) 131

Howerton v. Arai Helmet, Ltd., 358 NC 440 (2004) 132

NC Gen Stat. 8C-1, Rule 702 133

Floyd v. McGill, 156 NC App. 29 (2003)

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North Dakota




Biomechanics **

*North Dakota only requires that expert testimony be helpful to the trier of fact and

presented by a qualified witness. There are no specific requirements for qualification, and North

Dakota encourages a very liberal admissibility policy.

**There is no case law on the admissibility of biomechanics, but kinematics evidence has

been allowed by North Dakota courts.137

134

State v. Hernandez, 2005 ND 214 (2005) 135

Endresen v. Scheels Hardware and Sports Shop, 1997 ND 38 (1997) 136

Wolf v. Estate of Seright, 1997 ND 240 (1997) 137

Usry v. Theusch, 521 NW 2d 918 (1994)

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Ohio




Biomechanics Yes141

138

Terry v. Caputo, 115 Ohio St. 3d 351 (2007) 139

Metropolitan Life Insurance Company v. Tomchik, 134 Ohio App. 3d 765 (1999) 140

Lanham v. Wilson, 1991 Ohio App. Lexis 3820 (1991) 141

Lee v. Mendel, 1999 Ohio App. Lexis 3892 (1999)

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Oklahoma




Biomechanics Yes145

142

Christian v. Gray, 2003 OK 10 (2003) 143

Howlett v. Mayo’s Inc., 186 Okla. 651 (1940) 144

Snyder v. Dominguez, 2008 OK 53 (2008) 145

Nash v. GMC, 2007 OK Civ. App. 11 (2007)

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Oregon

Daubert, Frye, or other Rules of evidence+Daubert+*146

License Required Yes**147


Biomechanics Yes149

*The Oregon Supreme Court identified 17 factors that courts can use to judge the

reliability of scientific evidence:

1. General acceptance

2. Expert’s qualifications

3. The use which has been made of the technique

4. Rate of error

5. The existence of supporting literature

6. The novelty of the technique

7. The extent to which the technique relies on the subjective interpretation of the expert

8. The existence of standards governing the expert’s methodology

9. Presence of safeguards in the expert’s methodology

10. Analogy to other scientific techniques whose results are admissible

11. Acceptance among other experts in the field

12. The nature and breadth of the inference adduced

13. The clarity and simplicity with which the technique can be described and explained

14. The extent to which the basic data are verifiable by the court and jury

15. The availability of other experts to test and evaluate the technique

16. The probative significance of the evidence in the case

17. The care with which the technique was employed

146

Jennings v. Baxter Healthcare Corporation, 331 Ore 285 (2000) 147

Oregon Revised Statutes §672.005 148

Dyer v. R.E. Christiansen Trucking, 318 Ore 391 (1994) 149

Hayes v. Huard, 108 Ore. App. 289 (1991)

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**To testify, an expert needs to obtain a temporary Oregon engineering license.

42

Pennsylvania

Daubert, Frye, other Frye150



Biomechanics Yes153

150

Grady v. Frito-Lay, Inc., 576 Pa. 546 (2003) 151

Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321 (1974) 152

McManamon v. Washko, 2006 Pa. Super 245 (2006) 153

Raskin v. Ford Motor Company, 2003 Pa. Super 441 (2003)

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Rhode Island




Biomechanics *

*There is no case law on biomechanics in Rhode Island.

154

DiPetrillo v. Dow Chemical Company, 729 A.2d 677 (1999) 155

Owens v. Payless Cashways, 670 A.2d 1240 (1996) 156

Frias v. Jurczyk, 633 A.2d 679 (1993)

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South Carolina




Biomechanics Yes160

*To be admissible in South Carolina, expert testimony must be (1) beyond the knowledge

of the average juror, (2) the expert must be qualified, and (3) the testimony must be reliable. To

judge reliability, the courts look at whether the methods used by the experts were (1) peer

reviewed, (2) used in applications outside of the present litigation, (3) monitored to ensure

quality results, and (4) consistent with recognized scientific laws and procedures.

157

Watson v. Ford Motor Company, 389 SC 434 (2010) 158

Baggerly v. CSX Transportation, Inc., 370 SC 362 (2006) 159

Baggerly v. CSX Transportation, Inc., 370 SC 362 (2006) 160

Wilson v. Rivers, 357 SC 447 (2004)

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South Dakota




Biomechanics Yes164

161

Supreme Pork, Inc., v. Master Blaster, Inc., 2009 SD 20 (2009) 162

Mulder v. Tague, 85 SD 544 (1971) 163

Vansteenwyk v. Baumgartner Trees & Landscaping, 2007 SD 36 (2007) 164

Maroney v. Aman, 1997 SD 73 (1997)

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Tennessee

Daubert, Frye, or other Rules of Evidence/Daubert*165



Biomechanics Yes168

*Tennessee’s Rules of Evidence govern the admissibility of expert testimony, but the

courts have acknowledged the Daubert factors as helpful guidelines to determine the reliability

of the testimony.

165

McDaniel v. CSX Transportation, 955 SW 2d 257 (1997) 166

Martin v. Sizemore, 78 SW 3d 249 (2001) 167

Flax v. Daimler Chrysler Corporation, 272 SW 3d 521 (2008) 168

Brown v. Crown Equipment Corporation, 181 SW 3d 268 (2005)

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Texas


License Required Yes170

Accident Testimony Yes171

Biomechanics Yes172

169

E.I. du Pont de Nemours & Co. v. Robinson, 923 SW2d 549 (1995) 170

Texas Occupations Code 1001.003 171

TXI Transportation Company v. Hughes, 306 SW3d 230 (2010) 172

Shipley v. Holt Texas, Ltd., 2010 Tex. App. LEXIS 3773 (2010)

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48

Utah




Biomechanics Yes176

*Utah does not require evidence to have gained general acceptance to be deemed

admissible, however, if evidence has attained general acceptance then it is almost always

admissible. Utah does require that expert testimony be based on science with “inherent

reliability” which means that the underlying scientific principles and methods must be reliable

and the derived evidence must be helpful to the trier of fact.

173

Phillips ex rel. Utah State Department of Social Services v. Jackson, 615 P.2d 1228 (1980) 174

Crafts v. Hansen, 667 P 2d 1068 (1983) 175

Ryan v. Gold Cross Services, 903 P 2d (1995) 176

SBD v. State (State ex rel. ZD), 2006 UT 54 (2006)

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49

Vermont




Biomechanics *

*To date, there is no case law on the admissibility of biomechanics testimony in

Vermont.

177

USGen New England, Inc., v. Town of Rockingham, 2004 VT 90 (2004) 178

South Burlington School District v. Calcagni-Frazier-Zajchowski Architects, Inc., 138 VT 33 (1980) 179

Smith v. Gainer, 153 VT 442 (1990)

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50

Virginia

Daubert, Frye, or other Other*180


Accident Reconstruction Yes**182

Biomechanics Yes***183

*Virginia has its own state test called the Spencer Standard. The court must “make a

threshold finding of fact with respect to the reliability of the scientific method offered, unless it

is of a kind so familiar and accepted as to require no foundation to establish the fundamental

reliability of the system, such as fingerprint analysis.”

**Accident reconstruction testimony is rarely admissible in Virginia. The speed of the

vehicles in the accident specifically cannot be testified to in Virginia.

***Biomechanics engineers are not allowed to testify to injury causation. An expert must

have a medical doctor’s license to diagnose and discuss the cause of specific injury.

180

Spencer v. Commonwealth, 240 Va. 78 (1990) 181

Va. Code Annotated §54.1-400 182

Brown v. Corbin, 244 Va. 528 (1992) 183

Hollingsworth v. Norfolk Southern Railway Company, 279 Va. 360 (2010)

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51

Washington

Daubert, Frye, other Frye184



Biomechanics Yes187

184

Medcalf v. Department of Licensing, 133 Wn.2d 290 (1997) 185

Channel v. Mills, 77 Wn. App. 268 (1995) 186

Keller v. City of Spokane, 146 Wn. 2d 237 (2002) 187

Ma’Ele v. Arrington, 111 Wn. App. 557 (2002)

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52

West Virginia




Biomechanics Yes191

188

Wilt v. Buracker, 191 W. Va. 39 (1993) 189

Gentry v. Mangum, 195 W. Va. 512 (1995) 190

Estep v. Mike Ferrell Ford Lincoln-Mercury, Inc., 223 W. Va. 209 (2008) 191

Estep v. Mike Ferrell Ford Lincoln-Mercury, Inc., 223 W. Va. 209 (2008)

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53

Wisconsin

Daubert, Frye, other Rules of Evidence*192



Biomechanics Yes195

*Evidence in Wisconsin is admissible if (1) it is relevant, (2) the witness is qualified, and

(3) the evidence will assist the trier of fact. Reliability of the evidence is not a factor in

determining its admissibility; instead, reliability goes to weight.

192

Rico v. Riva, 2003 Wi. App. 182 (2003) 193

Wisconsin Statute §443.01 194

Franz v. Brennan, 150 Wis. 2d 1 (1989) 195

Gaertner v. Holcka, 219 Wis. 2d 436 (1998)

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54

Wyoming


License Required No*197



*There is no license requirement, but in matters dealing with product failure or liability,

experts are required typically to be very familiar with the specific brand and model of product at

issue. Witnesses must also be qualified in every area in which they plan to give testimony.

**There is a case where biomechanical evidence is allowed, but there are no cases in

Wyoming in which a biomechanical expert has given testimony.

196

Bunting v. Jamieson, 984 P. 2d 467 (1999) 197

Herman v. Speed King Manufacturing Company, 675 P. 2d 1271 (1984) 198

Werner Enterprises v. Brophy, 2009 WY 132 (2009) 199

Hurley v. PDQ Transport, Inc., 6 P 3d 134 (2000)

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Law

Daubert Rules of Expert Witness Testimony Admissibility