Daubert factors in Delaware

2025Bancorporation, Inc. v. Le Beau, 737 A.2d 513, 521 (Del. 1999) (adopting the Daubert standard as the correct interpretation of Delaware Rule of Evidence 702)). 6 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993))). 7 Sturgis v. Bayside Health Ass'n, 942 A.2d 579, 584 (Del. 2007) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993))). 6 instruction on the burden of proof are the traditional and appropriate means of attacking… admissible evidence.”8 DISCUSSION A. Admissibility Of Proffered Expert Testimony Proposed By The State.

2025Bancorporation, Inc. v. Le Beau, 737 A.2d 513, 521 (Del. 1999) (adopting the Daubert standard as the correct interpretation of Delaware Rule of Evidence 702)). 6 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993))). 7 Sturgis v. Bayside Health Ass'n, 942 A.2d 579, 584 (Del. 2007) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993))). 6 instruction on the burden of proof are the traditional and appropriate means of attacking… admissible evidence.”8 DISCUSSION A. Admissibility Of Proffered Expert Testimony Proposed By The State.

2025Bancorporation, Inc. v. Le Beau, 737 A.2d 513, 521 (Del. 1999) (adopting the Daubert standard as the correct interpretation of Delaware Rule of Evidence 702)). 6 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993))). 7 Sturgis v. Bayside Health Ass'n, 942 A.2d 579, 584 (Del. 2007) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993))). 6 instruction on the burden of proof are the traditional and appropriate means of attacking… admissible evidence.”8 DISCUSSION A. Admissibility Of Proffered Expert Testimony Proposed By The State.

2025Bancorporation, Inc. v. Le Beau, 737 A.2d 513, 521 (Del. 1999) (adopting the Daubert standard as the correct interpretation of Delaware Rule of Evidence 702)). 6 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993))). 7 Sturgis v. Bayside Health Ass'n, 942 A.2d 579, 584 (Del. 2007) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993))). 6 instruction on the burden of proof are the traditional and appropriate means of attacking… admissible evidence.”8 DISCUSSION A. Admissibility Of Proffered Expert Testimony Proposed By The State.

2025Ct. Aug. 29, 2018) (quoting Norman v. All About Women, P.A., 193 A.2d 726 , 730 (Del. 2018)). 3 Reliable expert testimony is premised on scientific or specialized knowledge which requires the testimony to be grounded in scientific methods and procedures and “supported by appropriate validation – i.e., ‘good grounds,’ based on what is known.”11 Many scientific, technical, or specialized fields are not subject to peer review and publication which is why the test of reliability is “flexible.” A rigid application of the Daubert factors to determine testimonial reliability in every field of experti

2025Ct. Aug. 29, 2018) (quoting Norman v. All About Women, P.A., 193 A.2d 726 , 730 (Del. 2018)). 3 Reliable expert testimony is premised on scientific or specialized knowledge which requires the testimony to be grounded in scientific methods and procedures and “supported by appropriate validation – i.e., ‘good grounds,’ based on what is known.”11 Many scientific, technical, or specialized fields are not subject to peer review and publication which is why the test of reliability is “flexible.” A rigid application of the Daubert factors to determine testimonial reliability in every field of experti

2025Super. 2021). 6 Daubert, 508 U.S. at 597. 7 Smack-Dixon, 2021 WL 3012056 at *2 (citing Bowen, 906 A.2d at 795 )). 8 Id. 9 Id. 3 for admitting expert opinions “when they will assist the trier of fact in understanding the relevant facts or the evidence.”10 Reliable expert testimony is premised on scientific or specialized knowledge which requires the testimony to be grounded in scientific methods and procedures and “supported by appropriate validation – i.e., ‘good grounds,’ based on what is known.”11 Many scientific, technical, or specialized fields are not subject to peer review and publicatio

2025Super. 2021). 6 Daubert, 508 U.S. at 597. 7 Smack-Dixon, 2021 WL 3012056 at *2 (citing Bowen, 906 A.2d at 795 )). 8 Id. 9 Id. 3 for admitting expert opinions “when they will assist the trier of fact in understanding the relevant facts or the evidence.”10 Reliable expert testimony is premised on scientific or specialized knowledge which requires the testimony to be grounded in scientific methods and procedures and “supported by appropriate validation – i.e., ‘good grounds,’ based on what is known.”11 Many scientific, technical, or specialized fields are not subject to peer review and publicatio

2023Motions to Exclude Expert Witnesses The Delaware Supreme Court has adopted the Daubert standard to determine the admissibility of expert testimony.26 Under this standard, the Court asks whether: (i) the witness is “qualified as an expert by knowledge, skill, experience, training or education;” (ii) the evidence is relevant and reliable; (iii) the expert’s opinion is based upon information “reasonably relied upon by experts in the particular field;” (iv) the expert testimony will “assist the trier of fact to understand the evidence or 26 See Eskin v. Carden, 842 A.2d 1222, 1231 (Del. 2004) (cit

2023Motions to Exclude Expert Witnesses The Delaware Supreme Court has adopted the Daubert standard to determine the admissibility of expert testimony.26 Under this standard, the Court asks whether: (i) the witness is “qualified as an expert by knowledge, skill, experience, training or education;” (ii) the evidence is relevant and reliable; (iii) the expert’s opinion is based upon information “reasonably relied upon by experts in the particular field;” (iv) the expert testimony will “assist the trier of fact to understand the evidence or 26 See Eskin v. Carden, 842 A.2d 1222, 1231 (Del. 2004) (cit

2024Defendants assert several of the studies Mannen relies on have not been subjected to peer review.77 Defendants argue Mannen’s “easier-to-roll” hypothesis is unsupported by the studies she cites.78 As to Mannen’s conclusion that a side-facing infant would come into contact with the side of the RnP, leading to an increased risk in suffocation, Defendants posit Mannen’s demonstration using a soccer ball in place of an infant “is not based on any recognized methodology for examining potential respiratory compromises.”79 This Court possesses “broad latitude to determine whether any or all of the Da

2024Defendants assert several of the studies Mannen relies on have not been subjected to peer review.77 Defendants argue Mannen’s “easier-to-roll” hypothesis is unsupported by the studies she cites.78 As to Mannen’s conclusion that a side-facing infant would come into contact with the side of the RnP, leading to an increased risk in suffocation, Defendants posit Mannen’s demonstration using a soccer ball in place of an infant “is not based on any recognized methodology for examining potential respiratory compromises.”79 This Court possesses “broad latitude to determine whether any or all of the Da

2024Defendants assert several of the studies Mannen relies on have not been subjected to peer review.77 Defendants argue Mannen’s “easier-to-roll” hypothesis is unsupported by the studies she cites.78 As to Mannen’s conclusion that a side-facing infant would come into contact with the side of the RnP, leading to an increased risk in suffocation, Defendants posit Mannen’s demonstration using a soccer ball in place of an infant “is not based on any recognized methodology for examining potential respiratory compromises.”79 This Court possesses “broad latitude to determine whether any or all of the Da

2024Defendants assert several of the studies Mannen relies on have not been subjected to peer review.77 Defendants argue Mannen’s “easier-to-roll” hypothesis is unsupported by the studies she cites.78 As to Mannen’s conclusion that a side-facing infant would come into contact with the side of the RnP, leading to an increased risk in suffocation, Defendants posit Mannen’s demonstration using a soccer ball in place of an infant “is not based on any recognized methodology for examining potential respiratory compromises.”79 This Court possesses “broad latitude to determine whether any or all of the Da

2019STANDARD FOR ADMISSIBILITY OF EXPERT TESTIMONY The Delaware Supreme Court has adopted the Daubert standard to determine the admissibility of expert testimony.23 Under this standard, the Court asks whether: (i) the witness is “qualified as an expert by knowledge, skill, experience, training or education;” (ii) the evidence is relevant and reliable; (iii) the expert’s opinion is based upon information “reasonably relied upon by experts in the particular field;” (iv) the expert testimony will “assist the trier of fact to understand the evidence or 23 See Eskin v. Carden, 842 A.2d 1222, 1231 (Del.

2019STANDARD FOR ADMISSIBILITY OF EXPERT TESTIMONY The Delaware Supreme Court has adopted the Daubert standard to determine the admissibility of expert testimony.23 Under this standard, the Court asks whether: (i) the witness is “qualified as an expert by knowledge, skill, experience, training or education;” (ii) the evidence is relevant and reliable; (iii) the expert’s opinion is based upon information “reasonably relied upon by experts in the particular field;” (iv) the expert testimony will “assist the trier of fact to understand the evidence or 23 See Eskin v. Carden, 842 A.2d 1222, 1231 (Del.

2024As an initial matter, these hearings are discretionary.55 Trial courts have considerable leeway “in assessing the relevance and reliability of expert testimony” and in performing their “gatekeeping function.”56 Inherent in such latitude is the ability to determine the appropriate form of proceedings that are needed to investigate reliability.57 As long as the trial judge can gather sufficient information 54 See, e.g., Opening Br. at 17-20. 55 See, e.g., Taylor v. Green Acres Farm, Inc., 2018 WL 2128663 , at *3 (Del. Super. May 7, 2018), aff’d, 198 A.3d 176 (Del. 2018) (citing Kuhmo Tire Compan

2024As an initial matter, these hearings are discretionary.55 Trial courts have considerable leeway “in assessing the relevance and reliability of expert testimony” and in performing their “gatekeeping function.”56 Inherent in such latitude is the ability to determine the appropriate form of proceedings that are needed to investigate reliability.57 As long as the trial judge can gather sufficient information 54 See, e.g., Opening Br. at 17-20. 55 See, e.g., Taylor v. Green Acres Farm, Inc., 2018 WL 2128663 , at *3 (Del. Super. May 7, 2018), aff’d, 198 A.3d 176 (Del. 2018) (citing Kuhmo Tire Compan

2025Ct. Aug. 29, 2018) (quoting Norman v. All About Women, P.A., 193 A.2d 726 , 730 (Del. 2018)). 3 Reliable expert testimony is premised on scientific or specialized knowledge which requires the testimony to be grounded in scientific methods and procedures and “supported by appropriate validation – i.e., ‘good grounds,’ based on what is known.”11 Many scientific, technical, or specialized fields are not subject to peer review and publication which is why the test of reliability is “flexible.” A rigid application of the Daubert factors to determine testimonial reliability in every field of experti

2025Ct. Aug. 29, 2018) (quoting Norman v. All About Women, P.A., 193 A.2d 726 , 730 (Del. 2018)). 3 Reliable expert testimony is premised on scientific or specialized knowledge which requires the testimony to be grounded in scientific methods and procedures and “supported by appropriate validation – i.e., ‘good grounds,’ based on what is known.”11 Many scientific, technical, or specialized fields are not subject to peer review and publication which is why the test of reliability is “flexible.” A rigid application of the Daubert factors to determine testimonial reliability in every field of experti

2025The Superior Court’s “liberal thrust” standard The Superior Court, before engaging in its Daubert analysis, noted that courts are directed to “conduct their Daubert analyses ‘with a liberal thrust favoring admission.’”81 The phrase “liberal thrust” is taken from Daubert itself, but the Superior Court adopted the phrase in a manner that divorced it from its context.82 In Daubert, the United States Supreme Court explained that the Frye test that previously governed expert testimony had imposed a “rigid ‘general acceptance’ requirement” on admissibility that was not consistent with the “liberal t

2025The Superior Court’s “liberal thrust” standard The Superior Court, before engaging in its Daubert analysis, noted that courts are directed to “conduct their Daubert analyses ‘with a liberal thrust favoring admission.’”81 The phrase “liberal thrust” is taken from Daubert itself, but the Superior Court adopted the phrase in a manner that divorced it from its context.82 In Daubert, the United States Supreme Court explained that the Frye test that previously governed expert testimony had imposed a “rigid ‘general acceptance’ requirement” on admissibility that was not consistent with the “liberal t

2023Therefore, the Supreme Court held that plaintiff’s expert rendered an “opinion based upon a completely incorrect case specific factual predicate.”41 This case is not comparable to Perry or any of the other cases cited by Urban and Schmitz.42 Urban and Schmitz have not pointed to any incorrect facts or data 38 509 U.S. 579 (1993). 39 Perry v. Berkley, 996 A.2d 1262, 1267 (Del. 2010) (citations omitted). 40 Id. 41 Id. at 1271 . (emphasis in original). 42 The Court, after oral argument, requested that the parties address the issue of whether a court had ever granted a Daubert motion for failure t

2023Therefore, the Supreme Court held that plaintiff’s expert rendered an “opinion based upon a completely incorrect case specific factual predicate.”41 This case is not comparable to Perry or any of the other cases cited by Urban and Schmitz.42 Urban and Schmitz have not pointed to any incorrect facts or data 38 509 U.S. 579 (1993). 39 Perry v. Berkley, 996 A.2d 1262, 1267 (Del. 2010) (citations omitted). 40 Id. 41 Id. at 1271 . (emphasis in original). 42 The Court, after oral argument, requested that the parties address the issue of whether a court had ever granted a Daubert motion for failure t

2020ANALYSIS The Daubert Standard Delaware has adopted the Daubert standard for the admissibility of expert testimony.’ Under Daubert, an expert may testify to his opinions (and, in cases such as this, those opinions may form the basis of a prima facie case)® if the testimony meets the following criteria: (1) the witness is qualified as an expert by knowledge, skill experience, training or education; (2) the evidence is relevant; (3) the expert's opinion is based upon information reasonably relied upon by experts in the particular field; (4) the expert testimony will assist the trier of fact to un

2020ANALYSIS The Daubert Standard Delaware has adopted the Daubert standard for the admissibility of expert testimony.’ Under Daubert, an expert may testify to his opinions (and, in cases such as this, those opinions may form the basis of a prima facie case)® if the testimony meets the following criteria: (1) the witness is qualified as an expert by knowledge, skill experience, training or education; (2) the evidence is relevant; (3) the expert's opinion is based upon information reasonably relied upon by experts in the particular field; (4) the expert testimony will assist the trier of fact to un

2023Given that many fields of expertise are not subject to peer review and publication, Delaware courts instruct against the rigid application of Daubert factors to determine reliability of expert evidence.14 As a result, trial courts possess “broad 12 See Rodriguez v. State, 30 A.3d 764, 769-70 (Del. 2011) (“Like expert witnesses generally, an analyst’s lack of proper training or deficiency in judgment may be disclosed in cross-examination.

2019STANDARD FOR ADMISSIBILITY OF EXPERT TESTIMONY The Delaware Supreme Court has adopted the Daubert standard to determine the admissibility of expert testimony.23 Under this standard, the Court asks whether: (i) the witness is “qualified as an expert by knowledge, skill, experience, training or education;” (ii) the evidence is relevant and reliable; (iii) the expert’s opinion is based upon information “reasonably relied upon by experts in the particular field;” (iv) the expert testimony will “assist the trier of fact to understand the evidence or 23 See Eskin v. Carden, 842 A.2d 1222, 1231 (Del.

2020Rather, the trial judge’s role as gatekeeper11 is limited to determining “whether the proponent of the evidence has demonstrated that scientific conclusions have been generated using sound and reliable approaches.”12 Expert opinions are admissible where they assist the trier of fact in understanding the facts or evidence presented at 8 Id. 9 Id. 10 Pavey v. Kalish, 2010 WL 3294304, at *3 (Del. 2010); Sturgis v. Bayside Health Ass’n, 942 A.2d 579, 584 (Del. 2007). 11 Id. at 583 . 12 State v. McMullen, 900 A.2d 103, 114 (Del.

2020Rather, the trial judge’s role as gatekeeper11 is limited to determining “whether the proponent of the evidence has demonstrated that scientific conclusions have been generated using sound and reliable approaches.”12 Expert opinions are admissible where they assist the trier of fact in understanding the facts or evidence presented at 8 Id. 9 Id. 10 Pavey v. Kalish, 2010 WL 3294304, at *3 (Del. 2010); Sturgis v. Bayside Health Ass’n, 942 A.2d 579, 584 (Del. 2007). 11 Id. at 583 . 12 State v. McMullen, 900 A.2d 103, 114 (Del.

2020Bancorporation, Inc. v. Le Beau, 737 A.2d 513, 521 (Del. 1999) (adopting the Daubert standard as the correct interpretation of Delaware Rule of Evidence 702). 23 Id. 24 Id. 25 Pavey v. Kalish, 2010 WL 3294304, at *3 (Del.

2020Bancorporation, Inc. v. Le Beau, 737 A.2d 513, 521 (Del. 1999) (adopting the Daubert standard as the correct interpretation of Delaware Rule of Evidence 702). 23 Id. 24 Id. 25 Pavey v. Kalish, 2010 WL 3294304, at *3 (Del.

2018The Frye standard’s sole focus_the general acceptance of the evidence in the particular field in which it belongs$_is analogous to Daubert’s inquiry into the acceptance of 3 Id. at 1227 (quoting Cunningham v. McDonala', 689 A.2d 1190, 1193 (Del.1997)). 4 Sturgz's v. Bayside Health Ass ’n Chartered, 942 A.2d 579, 584 (Del. 2007). 5 Frye v. U.S., 293 F. 1013, 1014 (D.C.

2018Nonetheless, these cases are instructive The Frye standard’s sole focus_the general acceptance of the evidence in the particular field in which it belongs5_is analogous to Daubert’s inquiry into the acceptance of 3 Ia'. at 1227 (quoting Cunningham v. McDonald, 689 A.2d 1190, 1193 (Del.1997)). 4 Sturgis v. Baysz'de Health Ass ’n Chartered, 942 A.2d 579, 584 (Del. 2007). 5 Frye v. U.S., 293 F. 1013, 1014 (D.C.

2018The appeals court went on to affirm the admissibility of the EDR data on the alternative ground that there was “ general acceptance of data from motor vehicle crash recorders in the relevant scientific community.”12 Though Massachusetts is 9 Ia’. (quoting Commonwealth v. Patters0n, 840 N.E.2d 12, 24 (Mass. 2005) (emphasis in original)). 10 Id. at 1220. ll ld 12 Id. at 1220_21. nominally a Daubert jurisdiction, the Zimmerman court admitted the evidence without performing a complete Daubert analysis.

2018The appeals court went on to affirm the admissibility of the EDR data on the alternative ground that there was “ general acceptance of data from motor vehicle crash recorders in the relevant scientific community.”12 Though Massachusetts is 9 Ia’. (quoting Commonwealth v. Patters0n, 840 N.E.2d 12, 24 (Mass. 2005) (emphasis in original)). 10 Id. at 1220. ll ld 12 Id. at 1220_21. nominally a Daubert jurisdiction, the Zimmerman court admitted the evidence without performing a complete Daubert analysis.

2006See Minner, 791 A.2d at 848 citing Ruiz-Troche, 161 F.3d at 85 (in a Daubert analysis the court does not determine if the proffered science is correct or which of competing scientific views is superior). 172 .

2006See Minner, 791 A.2d at 848 citing Ruiz-Troche, 161 F.3d at 85 (in a Daubert analysis the court does not determine if the proffered science is correct or which of competing scientific views is superior). 172 .

2024Causation Experts’ Op. at 34; Ex. 75, at 6. 74 In re Asbestos Litig., 911 A.2d at 1207 . 75 The post-Daubert briefing here followed adjournment of the three-day Daubert hearing.

2024Bancorporation, Inc. v. LeBeau, 737 A.2d 513, 522 (Del. 1999). 37 In re Asbestos Litig., 911 A.2d 1176, 1197 (Del. Super. 2006). 38 Minner, 791 A.2d at 841 . 39 In re Asbestos Litig., 911 A.2d at 1197 . 40 Daubert, 509 U.S. at 590 . 9 otherwise, is binding on the trial court.41 The trial court also has broad discretion to consider factors not articulated by Daubert.42 B.

2026Beard Rsch., Inc. v. Kates, 8 A.3d 573, 593 (Del. Ch. 2010) (“Plaintiffs assert that Defendants waived any Daubert challenge to Grabowski's testimony by failing to raise this challenge during either the pretrial proceedings or the trial itself. . . .

2025DuPont de Nemours & Co., Inc. adopted the federal five-step Daubert test for determining the admissibility of expert witness testimony under D.R.E. 702, which requires the trial judge to determine whether: (1) the witness is qualified as an expert by knowledge, skill, experience, training, or education; (2) the evidence is relevant; 14 Hudson v. State, 312 A.3d 615 , 624 (Del. 2024) (“We review a trial court’s decision to admit or exclude evidence for abuse of discretion.”) (citing Miller v. State Farm Mut.

2025But the Grenier I court found that the Superior Court made certain factual findings at the Daubert hearing that were not supported by the record and therefore remanded the case for reconsideration of whether the challenged experts’ opinions created a “bridge, grounded in reliable science, between the scientific data regarding the association between unrefined chrysotile and asbestos-related diseases and the association between friction products and asbestos-related diseases.”127 The trial court then clarified its decision, and this Court affirmed, holding that the experts had “provide[d] the n

2025But the Grenier I court found that the Superior Court made certain factual findings at the Daubert hearing that were not supported by the record and therefore remanded the case for reconsideration of whether the challenged experts’ opinions created a “bridge, grounded in reliable science, between the scientific data regarding the association between unrefined chrysotile and asbestos-related diseases and the association between friction products and asbestos-related diseases.”127 The trial court then clarified its decision, and this Court affirmed, holding that the experts had “provide[d] the n

2024She ultimately made a strategic decision to forego the already-filed Daubert motion in order to keep the trial date and to use what could be critically helpful aspects of the 112 Def.’s Rule 61 Mot. at 5; Def.’s Am. Rule 61 Mot. at 3; Def.’s Mem. on Am. Rule 61 Mot. at 32-33. 113 Def.’s Rule 61 Mot. at 5. 114 Def.’s Mem. on Am. Rule 61 Mot. at 32-33. 115 Peters, 283 A.3d at 687 (citing Burns v. State, 76 A.3d 780, 788 (Del. 2013); Hoskins, 102 A.3d at 730). 116 Green, 238 A.3d at 174. -27- ShotSpotter analyses.

2024She ultimately made a strategic decision to forego the already-filed Daubert motion in order to keep the trial date and to use what could be critically helpful aspects of the 112 Def.’s Rule 61 Mot. at 5; Def.’s Am. Rule 61 Mot. at 3; Def.’s Mem. on Am. Rule 61 Mot. at 32-33. 113 Def.’s Rule 61 Mot. at 5. 114 Def.’s Mem. on Am. Rule 61 Mot. at 32-33. 115 Peters, 283 A.3d at 687 (citing Burns v. State, 76 A.3d 780, 788 (Del. 2013); Hoskins, 102 A.3d at 730). 116 Green, 238 A.3d at 174. -27- ShotSpotter analyses.

2024The trial judge had a sufficient record upon which to rely; namely, the expert report itself, a robust affidavit from DNA Labs employees Rachel Oeflein and Cristina Rentas detailing STRmix’s scientific reliability,59 and the parties’ submissions.60 58 See, e.g., Minner at 845-46 (quoting Weinstein’s Federal Evidence 2d § 702.5(2)(a)) (“The latitude provided by Kumho Tire allows the Court to decide ‘what proceedings, if any, are needed to investigate reliability.’”); United States v. Alatorre, 222 F.3d 1098 , 1103-04 (9th Cir. 2000) (holding trial court did not abuse its discretion when it allo

2024The trial judge had a sufficient record upon which to rely; namely, the expert report itself, a robust affidavit from DNA Labs employees Rachel Oeflein and Cristina Rentas detailing STRmix’s scientific reliability,59 and the parties’ submissions.60 58 See, e.g., Minner at 845-46 (quoting Weinstein’s Federal Evidence 2d § 702.5(2)(a)) (“The latitude provided by Kumho Tire allows the Court to decide ‘what proceedings, if any, are needed to investigate reliability.’”); United States v. Alatorre, 222 F.3d 1098 , 1103-04 (9th Cir. 2000) (holding trial court did not abuse its discretion when it allo