Daubert factors in Vermont

2015The Daubert factors have become the preeminent standard for admissibility of expert testimony and were adopted by this Court in State v. Brooks, 162 Vt. 26, 30 , 643 A.2d 226, 229 (1993).

2015The Daubert factors have become the preeminent standard for admissibility of expert testimony and were adopted by this Court in State v. Brooks, 162 Vt. 26, 30 , 643 A.2d 226, 229 (1993).

2026To make that reliability determination, a trial court may consider the four Daubert factors: “(1) whether the applicable theory or technique can be tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; and (4) whether it has been generally accepted by the scientific community.” Id. (citation omitted); see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591-94 (1993).

2015Although courts have diverged on *74 how exacting the Daubert inquiry must be, we have focused on the “liberal thrust” of Rule 702, stating that “the trial court’s inquiry into expert testimony should primarily focus on excluding ‘junk science’ — because of its potential to confuse or mislead the trier of fact — rather than serving as a preliminary inquiry into the merits of the case.” Daewoo, 2008 VT 14, ¶¶ 8-10 (“We adopted the Daubert decision precisely because it comported with the ‘liberal thrust’ of the rules of evidence and broadened the types of expert opinion evidence that could be co

2004Daubert, 509 U.S. at 587-89 ; see also State v. Streich, 163 Vt. 331, 342-43 , 658 A.2d 38, 46-47 (1995) (adopting and explaining Daubert standard).

2004Daubert, 509 U.S. at 587-89 ; see also State v. Streich, 163 Vt. 331, 342-43 , 658 A.2d 38, 46-47 (1995) (adopting and explaining Daubert standard).

2025“So long as scientific or technical evidence has a sound factual and methodological basis and is relevant to the issues at hand, it is within the purview of the trier of fact to assess its credibility and determine the weight to be assigned to it.” Id. at ¶ 30; see 985 Associates, Ltd. v. Daewoo Electronics America, Inc., 2008 VT 14, ¶ 16 , 183 Vt. 208 , 217–18 (cautioning trial courts against misusing the reliability prong of the Daubert analysis to deny parties the opportunity of presenting their expert evidence to the trier of fact).

2025“So long as scientific or technical evidence has a sound factual and methodological basis and is relevant to the issues at hand, it is within the purview of the trier of fact to assess its credibility and determine the weight to be assigned to it.” Id. at ¶ 30; see 985 Associates, Ltd. v. Daewoo Electronics America, Inc., 2008 VT 14, ¶ 16 , 183 Vt. 208 , 217–18 (cautioning trial courts against misusing the reliability prong of the Daubert analysis to deny parties the opportunity of presenting their expert evidence to the trier of fact).

2015We are also mindful that this is a bench trial and that although the Daubert standard is applicable, “a judge in a bench trial should have discretion to admit questionable technical evidence,” although the judge “must not give it more weight than it deserves.” USGen New Eng., Inc. v. Town of Rockingham, 2004 VT 90, ¶ 26 , 177 Vt. 193 , 862 A.2d 269 (quotation omitted). ¶ 91.

2015We are also mindful that this is a bench trial and that although the Daubert standard is applicable, “a judge in a bench trial should have discretion to admit questionable technical evidence,” although the judge “must not give it more weight than it deserves.” USGen New Eng., Inc. v. Town of Rockingham, 2004 VT 90, ¶ 26 , 177 Vt. 193 , 862 A.2d 269 (quotation omitted). ¶ 91.

2026We further explained in State v. Kinney, 171 Vt. 239 , 762 A.2d 833 (2000), that a mechanical application of the Daubert factors to expert testimony is not necessary where the scientific or technical evidence is not novel and its reliability otherwise can be established.

2026We further explained in State v. Kinney, 171 Vt. 239 , 762 A.2d 833 (2000), that a mechanical application of the Daubert factors to expert testimony is not necessary where the scientific or technical evidence is not novel and its reliability otherwise can be established.

2015We have endorsed this approach, stating that the Daubert factors “are not exhaustive, and a trial court has broad discretion to determine, on a case-by-case basis, whether some or any of the factors are relevant in evaluating the reliability of expert evidence before it.” Scott, 2013 VT 103, ¶ 10 (quotation omitted).

2015We have endorsed this approach, stating that the Daubert factors “are not exhaustive, and a trial court has broad discretion to determine, on a case-by-case basis, whether some or any of the factors are relevant in evaluating the reliability of expert evidence before it.” Scott, 2013 VT 103, ¶ 10 (quotation omitted).

2015In light of this expanded view of Rule 702 and the Daubert inquiry, the Court rearticulated the objective of the gatekeeping requirement as “ensuring] the reliability and relevancy of expert testimony” and “makfing] certain that an expert . . . employs in the courtroom the same level of intellectual *75 rigor that characterizes the practice of an expert in the relevant field.” Id. at 152. ¶ 19.

2015In light of this expanded view of Rule 702 and the Daubert inquiry, the Court rearticulated the objective of the gatekeeping requirement as “ensuring] the reliability and relevancy of expert testimony” and “makfing] certain that an expert . . . employs in the courtroom the same level of intellectual *75 rigor that characterizes the practice of an expert in the relevant field.” Id. at 152. ¶ 19.

2009For instance, in State v. Coon the trial court found that each of the Daubert factors supported admission of voice spectrographic evidence and held that the trial court did not err in admitting the evidence. 974 P.2d at 402 .

2009For instance, in State v. Coon the trial court found that each of the Daubert factors supported admission of voice spectrographic evidence and held that the trial court did not err in admitting the evidence. 974 P.2d at 402 .

2026To make that reliability determination, a trial court may consider the four Daubert factors: “(1) whether the applicable theory or technique can be tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; and (4) whether it has been generally accepted by the scientific community.” Id. (citation omitted); see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591-94 (1993).

2015The non-exclusive list of factors applicable to scientific testimony includes: “(1) whether the theory or technique involved is capable of being tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential error rate associated with the scientific technique; and (4) whether the theory or technique has been generally accepted in the scientific community.” State v. Pratt, 2015 VT 89, ¶ 17 (citing State v. Streich, 163 Vt. 331, 343 (1995)).

2010Kennedy, 161 F.3d at 1230 ; accord Jahn v. Equine Sens., PSC, 233 F.3d 382, 393 (6th Cir. 2000) (noting that although a trial court is not obligated to always hold a Daubert hearing, a “court should not make a Daubert ruling prematurely, but should only do so when the record is complete enough to measure the proffered testimony against the proper standards of reliability and relevance”); Paoli, 35 F.3d at 739 (“Given the ‘liberal thrust’ of the federal rules, it is particularly important that the side trying to defend the admissibility of evidence be given an adequate chance to do so.” (citing

2010Kennedy, 161 F.3d at 1230 ; accord Jahn v. Equine Sens., PSC, 233 F.3d 382, 393 (6th Cir. 2000) (noting that although a trial court is not obligated to always hold a Daubert hearing, a “court should not make a Daubert ruling prematurely, but should only do so when the record is complete enough to measure the proffered testimony against the proper standards of reliability and relevance”); Paoli, 35 F.3d at 739 (“Given the ‘liberal thrust’ of the federal rules, it is particularly important that the side trying to defend the admissibility of evidence be given an adequate chance to do so.” (citing

2010Thus, we have held reviewing for abuse of discretion does not prevent us from “engag[ing] in a substantial and thorough analysis of the trial court’s decision and order to ensure that the trial judge’s decision was in accordance with Daubert and our applicable precedents.” USGen, 2004 VT 90, ¶ 24 (quotation omitted); cf., e.g., United States v. Pansier, 576 F.3d 726, 737-38 (7th Cir. 2009) (noting that appellate courts do not apply any deference in determining “whether the [trial] court applied the legal framework required under Rule 702 and Daubert”).

2010Thus, we have held reviewing for abuse of discretion does not prevent us from “engag[ing] in a substantial and thorough analysis of the trial court’s decision and order to ensure that the trial judge’s decision was in accordance with Daubert and our applicable precedents.” USGen, 2004 VT 90, ¶ 24 (quotation omitted); cf., e.g., United States v. Pansier, 576 F.3d 726, 737-38 (7th Cir. 2009) (noting that appellate courts do not apply any deference in determining “whether the [trial] court applied the legal framework required under Rule 702 and Daubert”).

2010Kennedy, 161 F.3d at 1230 ; accord Jahn v. Equine Sens., PSC, 233 F.3d 382, 393 (6th Cir. 2000) (noting that although a trial court is not obligated to always hold a Daubert hearing, a “court should not make a Daubert ruling prematurely, but should only do so when the record is complete enough to measure the proffered testimony against the proper standards of reliability and relevance”); Paoli, 35 F.3d at 739 (“Given the ‘liberal thrust’ of the federal rules, it is particularly important that the side trying to defend the admissibility of evidence be given an adequate chance to do so.” (citing

2010Kennedy, 161 F.3d at 1230 ; accord Jahn v. Equine Sens., PSC, 233 F.3d 382, 393 (6th Cir. 2000) (noting that although a trial court is not obligated to always hold a Daubert hearing, a “court should not make a Daubert ruling prematurely, but should only do so when the record is complete enough to measure the proffered testimony against the proper standards of reliability and relevance”); Paoli, 35 F.3d at 739 (“Given the ‘liberal thrust’ of the federal rules, it is particularly important that the side trying to defend the admissibility of evidence be given an adequate chance to do so.” (citing

2010Thus, in Padillas v. Stork-Gamco, Inc., 186 F.3d 412 (3d Cir. 1999), the court noted that although the decision to hold a Daubert hearing “rests in the sound discretion of the [trial] court,” an abuse of discretion occurs when the trial court finds that the expert’s opinion is “insufficiently explained,” yet fails to hold a Daubert hearing to “giv[e] plaintiff an opportunity to respond to the court’s concerns.” Id. at 418. ¶ 98.

2010Thus, in Padillas v. Stork-Gamco, Inc., 186 F.3d 412 (3d Cir. 1999), the court noted that although the decision to hold a Daubert hearing “rests in the sound discretion of the [trial] court,” an abuse of discretion occurs when the trial court finds that the expert’s opinion is “insufficiently explained,” yet fails to hold a Daubert hearing to “giv[e] plaintiff an opportunity to respond to the court’s concerns.” Id. at 418. ¶ 98.

2010Kennedy, 161 F.3d at 1230 ; accord Jahn v. Equine Sens., PSC, 233 F.3d 382, 393 (6th Cir. 2000) (noting that although a trial court is not obligated to always hold a Daubert hearing, a “court should not make a Daubert ruling prematurely, but should only do so when the record is complete enough to measure the proffered testimony against the proper standards of reliability and relevance”); Paoli, 35 F.3d at 739 (“Given the ‘liberal thrust’ of the federal rules, it is particularly important that the side trying to defend the admissibility of evidence be given an adequate chance to do so.” (citing

2010Kennedy, 161 F.3d at 1230 ; accord Jahn v. Equine Sens., PSC, 233 F.3d 382, 393 (6th Cir. 2000) (noting that although a trial court is not obligated to always hold a Daubert hearing, a “court should not make a Daubert ruling prematurely, but should only do so when the record is complete enough to measure the proffered testimony against the proper standards of reliability and relevance”); Paoli, 35 F.3d at 739 (“Given the ‘liberal thrust’ of the federal rules, it is particularly important that the side trying to defend the admissibility of evidence be given an adequate chance to do so.” (citing

2010Thus, the threshold for concluding that an agent was more likely than not the cause of an individual's disease is a relative risk greater than 2.0. 180 F.Supp.2d at 591 (quotation omitted). [8] As Dr. Guidotti noted, NHL "is a collection of widely disparate diseases that are not commonly separated in epidemiological studies." He stated that NHLs consist of at least thirty recognized types, and he opined that new types will be identified as immunological and genomic methods become more sophisticated. [9] The dissent concludes sua sponte that the court abused its discretion by failing to hold a

2010Thus, the threshold for concluding that an agent was more likely than not the cause of an individual's disease is a relative risk greater than 2.0. 180 F.Supp.2d at 591 (quotation omitted). [8] As Dr. Guidotti noted, NHL "is a collection of widely disparate diseases that are not commonly separated in epidemiological studies." He stated that NHLs consist of at least thirty recognized types, and he opined that new types will be identified as immunological and genomic methods become more sophisticated. [9] The dissent concludes sua sponte that the court abused its discretion by failing to hold a

2004Coon, 974 P.2d at 399 ; State v. Alberico, 861 P.2d 192, 205 (N.M. 1993).

2000See United States v. Martinez, 3 F.3d 1191, 1197 (8th Cir. 1993) (pre-Daubert analysis of DNA admissibility persuasive partly because “court employed a reliability approach to Rule 702 similar to that taken in Daubert”); State v. Coon, 974 P.2d 386, 398 (Alaska 1999) (methodologies admissible under earlier standard remain admissible under Daubert “absent affirmative evidence of unreliability”).