Daubert factors in Kansas

2024Specifically, his first issue states that the district court "erred in denying plaintiff's motion to continue the pretrial conference for the purpose of conducting a Daubert hearing to hear testimony of Plaintiff's expert." See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-94 , 113 S. Ct. 2786 , 125 L.

2024Specifically, his first issue states that the district court "erred in denying plaintiff's motion to continue the pretrial conference for the purpose of conducting a Daubert hearing to hear testimony of Plaintiff's expert." See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-94 , 113 S. Ct. 2786 , 125 L.

2026The purpose of the Daubert inquiry is 'to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.' Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 , 119 S. Ct. 1167 , 143 L. Ed. 2d 238 (1999)." Berndt v. Levy, No. 08-1067-WEB, 2010 WL 3913240 , at *3 (D.

2026The purpose of the Daubert inquiry is 'to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.' Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 , 119 S. Ct. 1167 , 143 L. Ed. 2d 238 (1999)." Berndt v. Levy, No. 08-1067-WEB, 2010 WL 3913240 , at *3 (D.

2024Co., 215 F.3d 1083 (10th Cir. 2000), noting that "while a Daubert hearing is '[t]he most common method for fulfilling' a district court's gatekeeping function, it 'is not specifically mandated.' 215 F.3d at 1087 ." Aguirre, 313 Kan. at 205; see also United States v. Call, 129 F.3d 1402, 1405 (10th Cir. 1997) (noting that Daubert does not require a hearing).

2024Co., 215 F.3d 1083 (10th Cir. 2000), noting that "while a Daubert hearing is '[t]he most common method for fulfilling' a district court's gatekeeping function, it 'is not specifically mandated.' 215 F.3d at 1087 ." Aguirre, 313 Kan. at 205; see also United States v. Call, 129 F.3d 1402, 1405 (10th Cir. 1997) (noting that Daubert does not require a hearing).

2024Specifically, the nonexclusive list of Daubert factors is as follows: "(1) whether the theory or technique can be (and has been) tested; (2) whether it has been subject to peer review and publication; (3) whether, in respect to a particular technique, there is a high known or potential rate of error and whether there are standards controlling the technique's operation; and (4) whether the theory or technique has general acceptance within a relevant scientific community." State v. Lyman, 311 Kan. 1 , 22, 455 P.3d 393 (2020). 10 A district court may look to these factors in examining reliability

2024Specifically, the nonexclusive list of Daubert factors is as follows: "(1) whether the theory or technique can be (and has been) tested; (2) whether it has been subject to peer review and publication; (3) whether, in respect to a particular technique, there is a high known or potential rate of error and whether there are standards controlling the technique's operation; and (4) whether the theory or technique has general acceptance within a relevant scientific community." State v. Lyman, 311 Kan. 1 , 22, 455 P.3d 393 (2020). 10 A district court may look to these factors in examining reliability

2026See Aguirre, 313 Kan. at 205 (noting a Daubert hearing is "'[t]he most common method for fulfilling' a district court's gatekeeping function") [quoting Goebel v. Denver and Rio Grande Western R.R.

2026See Aguirre, 313 Kan. at 205 (noting a Daubert hearing is "'[t]he most common method for fulfilling' a district court's gatekeeping function") [quoting Goebel v. Denver and Rio Grande Western R.R.

2016Cf. Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1245 (10th Cir. 2000) (“We do not believe, however, the bare fact that the district court did not explicitly utilize the Daubert analysis in admitting [the] testimony renders the admission erroneous.”).

2016Cf. Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1245 (10th Cir. 2000) (“We do not believe, however, the bare fact that the district court did not explicitly utilize the Daubert analysis in admitting [the] testimony renders the admission erroneous.”).

2024The District Court Properly Excluded Dr. May's Expert Opinion Having established that the district court correctly considered the Daubert factors, our inquiry is next focused on the district court's "determination of reliability." See In re Care & Treatment of Cone, 309 Kan. at 327 .

2024The District Court Properly Excluded Dr. May's Expert Opinion Having established that the district court correctly considered the Daubert factors, our inquiry is next focused on the district court's "determination of reliability." See In re Care & Treatment of Cone, 309 Kan. at 327 .

2021Under the Daubert standard, the appellate court reviews de novo whether the trial court actually performed its gatekeeper role "and whether it applied the proper standard in admitting expert testimony." Smart v. BNSF Railway Co., 52 Kan.

2021Under the Daubert standard, the appellate court reviews de novo whether the trial court actually performed its gatekeeper role "and whether it applied the proper standard in admitting expert testimony." Smart v. BNSF Railway Co., 52 Kan.

2005See United States v. Hall, 93 F.3d 1337, 1342-45 (7th Cir. 1996) (conviction reversed because trial judge failed to correctly employ Daubert analysis, Federal Rule of Evidence 702 to evaluate admissibility of expert testimony on false confessions and personality disorder; such testimony may assist the jury, give reason to reject “common sense” conclusion regarding facts); United States v. Shay, 57 F.3d 126, 131-34 (1st Cir. 1995) (rejecting wholesale exclusion under Federal Rule of Evidence 702 of expert testimony on defendant’s “psuedologia fantástica” disorder, which involves a compulsion to

2002Along the way, it observed that United States v. Hall, 93 F.3d 1337 (7th Cir. 1996), had allowed expert testimony on coercive police interrogation and the incidence of false confessions under the Daubert standard.

2025In short, "[t]he Daubert factors are simply a way of distinguishing 'between science and pseudo-science.'" Hyman & Armstrong, P.S.C. v. Gunderson, 279 S.W.3d 93, 104 (Ky. 2008).

2024The Tenth Circuit Court of Appeals has explained that "'[t]he trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.' 526 U.S. at 152." United States v. Nacchio, 555 F.3d 1234, 1245 (10th Cir. 2009).

2024The Tenth Circuit Court of Appeals has explained that "'[t]he trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.' 526 U.S. at 152." United States v. Nacchio, 555 F.3d 1234, 1245 (10th Cir. 2009).

2024Co., 215 F.3d 1083 (10th Cir. 2000), noting that "while a Daubert hearing is '[t]he most common method for fulfilling' a district court's gatekeeping function, it 'is not specifically mandated.' 215 F.3d at 1087 ." Aguirre, 313 Kan. at 205; see also United States v. Call, 129 F.3d 1402, 1405 (10th Cir. 1997) (noting that Daubert does not require a hearing).

2024Co., 215 F.3d 1083 (10th Cir. 2000), noting that "while a Daubert hearing is '[t]he most common method for fulfilling' a district court's gatekeeping function, it 'is not specifically mandated.' 215 F.3d at 1087 ." Aguirre, 313 Kan. at 205; see also United States v. Call, 129 F.3d 1402, 1405 (10th Cir. 1997) (noting that Daubert does not require a hearing).

2021Both Smart and federal caselaw have also recognized that "reliability concerns may focus upon personal knowledge or experience instead of the Daubert factors and scientific foundation." Smart, 52 Kan. App. 2d at 495 ; see also F & H Coatings, LLC v. Acosta, 900 F.3d 1214, 1222 (10th Cir. 2018) ("Where an expert testifies based on experience, the tribunal reviews the reliability of the testimony with reference to 'the nature of the issue, the expert's particular expertise, and the subject of [the] testimony.'") (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148-50 , 119 S. Ct. 1167 , 143

2021Both Smart and federal caselaw have also recognized that "reliability concerns may focus upon personal knowledge or experience instead of the Daubert factors and scientific foundation." Smart, 52 Kan. App. 2d at 495 ; see also F & H Coatings, LLC v. Acosta, 900 F.3d 1214, 1222 (10th Cir. 2018) ("Where an expert testifies based on experience, the tribunal reviews the reliability of the testimony with reference to 'the nature of the issue, the expert's particular expertise, and the subject of [the] testimony.'") (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148-50 , 119 S. Ct. 1167 , 143

2021Co., 129 Fed. Appx. 972, 974-77 (6th Cir. 2005) (unpublished opinion) (rejecting insurer's Daubert challenge based on argument that the expert's "visual inspection of the roof was insufficient to allow him to testify as an expert on structural engineering issues"); Royale Green Condo Ass'n, Inc. v. Aspen Spec.

2021See United States v. Medina-Copete, 757 F.3d 1092, 1101 (10th Cir. 2014).

2021See United States v. Medina-Copete, 757 F.3d 1092, 1101 (10th Cir. 2014).

2008Ore. 2002) (multiple-chemical sensitivity “has not attained general acceptance”); Coffey v. County of Hennepin, 23 F. Supp. 2d 1081, 1086 (D.

2008Ore. 2002) (multiple-chemical sensitivity “has not attained general acceptance”); Coffey v. County of Hennepin, 23 F. Supp. 2d 1081, 1086 (D.

2008System, 132 F.3d 599, 603 (10th Cir. 1997) (multiple-chemical sensitivity “is a controversial diagnosis that has been excluded under Daubert as unsupported by sound scientific reasoning or methodology”); Bradley v. Brown, 42 F.3d 434, 438-39 (7th Cir. 1994) (affirming a lower court’s Daubert analysis rejecting multiple-chemical sensitivity testimony); Gabbard v. Linn-Benton Housing Authority, 219 F. Supp. 2d 1130, 1139 (D.

2008System, 132 F.3d 599, 603 (10th Cir. 1997) (multiple-chemical sensitivity “is a controversial diagnosis that has been excluded under Daubert as unsupported by sound scientific reasoning or methodology”); Bradley v. Brown, 42 F.3d 434, 438-39 (7th Cir. 1994) (affirming a lower court’s Daubert analysis rejecting multiple-chemical sensitivity testimony); Gabbard v. Linn-Benton Housing Authority, 219 F. Supp. 2d 1130, 1139 (D.

2008System, 132 F.3d 599, 603 (10th Cir. 1997) (multiple-chemical sensitivity “is a controversial diagnosis that has been excluded under Daubert as unsupported by sound scientific reasoning or methodology”); Bradley v. Brown, 42 F.3d 434, 438-39 (7th Cir. 1994) (affirming a lower court’s Daubert analysis rejecting multiple-chemical sensitivity testimony); Gabbard v. Linn-Benton Housing Authority, 219 F. Supp. 2d 1130, 1139 (D.

2008System, 132 F.3d 599, 603 (10th Cir. 1997) (multiple-chemical sensitivity “is a controversial diagnosis that has been excluded under Daubert as unsupported by sound scientific reasoning or methodology”); Bradley v. Brown, 42 F.3d 434, 438-39 (7th Cir. 1994) (affirming a lower court’s Daubert analysis rejecting multiple-chemical sensitivity testimony); Gabbard v. Linn-Benton Housing Authority, 219 F. Supp. 2d 1130, 1139 (D.

2008System, 132 F.3d 599, 603 (10th Cir. 1997) (multiple-chemical sensitivity “is a controversial diagnosis that has been excluded under Daubert as unsupported by sound scientific reasoning or methodology”); Bradley v. Brown, 42 F.3d 434, 438-39 (7th Cir. 1994) (affirming a lower court’s Daubert analysis rejecting multiple-chemical sensitivity testimony); Gabbard v. Linn-Benton Housing Authority, 219 F. Supp. 2d 1130, 1139 (D.

2008System, 132 F.3d 599, 603 (10th Cir. 1997) (multiple-chemical sensitivity “is a controversial diagnosis that has been excluded under Daubert as unsupported by sound scientific reasoning or methodology”); Bradley v. Brown, 42 F.3d 434, 438-39 (7th Cir. 1994) (affirming a lower court’s Daubert analysis rejecting multiple-chemical sensitivity testimony); Gabbard v. Linn-Benton Housing Authority, 219 F. Supp. 2d 1130, 1139 (D.

2005See United States v. Hall, 93 F.3d 1337, 1342-45 (7th Cir. 1996) (conviction reversed because trial judge failed to correctly employ Daubert analysis, Federal Rule of Evidence 702 to evaluate admissibility of expert testimony on false confessions and personality disorder; such testimony may assist the jury, give reason to reject “common sense” conclusion regarding facts); United States v. Shay, 57 F.3d 126, 131-34 (1st Cir. 1995) (rejecting wholesale exclusion under Federal Rule of Evidence 702 of expert testimony on defendant’s “psuedologia fantástica” disorder, which involves a compulsion to

2005See United States v. Hall, 93 F.3d 1337, 1342-45 (7th Cir. 1996) (conviction reversed because trial judge failed to correctly employ Daubert analysis, Federal Rule of Evidence 702 to evaluate admissibility of expert testimony on false confessions and personality disorder; such testimony may assist the jury, give reason to reject “common sense” conclusion regarding facts); United States v. Shay, 57 F.3d 126, 131-34 (1st Cir. 1995) (rejecting wholesale exclusion under Federal Rule of Evidence 702 of expert testimony on defendant’s “psuedologia fantástica” disorder, which involves a compulsion to

2005See United States v. Hall, 93 F.3d 1337, 1342-45 (7th Cir. 1996) (conviction reversed because trial judge failed to correctly employ Daubert analysis, Federal Rule of Evidence 702 to evaluate admissibility of expert testimony on false confessions and personality disorder; such testimony may assist the jury, give reason to reject “common sense” conclusion regarding facts); United States v. Shay, 57 F.3d 126, 131-34 (1st Cir. 1995) (rejecting wholesale exclusion under Federal Rule of Evidence 702 of expert testimony on defendant’s “psuedologia fantástica” disorder, which involves a compulsion to

2005App. 1988) (testimony regarding drug addiction, mother’s dominance should have been admitted); Holloman v. Commonwealth, 37 S.W.3d 764, 767-68 (Ky. 2001) (expert should have been permitted to testify on effect of mental retardation on ability to understand, communicate); State v. Buechler, 253 Neb. 727, 739 , *700 572 N.W.2d 65 (1998) (court should have admitted proffered testimony regarding drug withdrawal, psychological disorders; testimony “undertook not to tell the juiy how to decide the case or what result should be reached on any issue to be resolved by it, but, rather, to explain [defen