Expert Witness Blog

Practical guidance for expert witnesses — testimony, report writing, depositions, fees and building a successful practice.

May 17, 2018

Daubert Expert on Risk Assessment for Expert Witness Challenges

By Steven Babitsky, Esq. Expert witnesses of all specialties are facing an increasing numbers of Daubert challenges. The admissibility rate varies by area of expertise. Physicians, when testifying in certain areas, have approximately a 50% exclusion rate with many financial experts (fraud 52% and intellectual property 51%) a little higher.[1] What can and should expert witnesses do to judge their

January 16, 2018

Is Daubert or Frye used for expert witness testimony admissibility in Wyoming?

The state of Wyoming follows the Daubert test for the admissibility of expert witness testimony. Wise v. Ludlow, 346 P.3d 1 (Wyo. 2015). Under this test, the court should ensure that expert testimony is reliable and “fits the facts of the particular case.” Id. Additionally, the focus of this test is on the “methodology or technique” used by the expert

January 15, 2018

Is Daubert or Frye used for expert witness testimony admissibility in Wisconsin?

The state of Wisconsin follows the Daubert test for the admissibility of expert witness testimony. State v. Giese, 854 N.W.2d 687 (Wis. Ct. App. 2014). This rule finds expert witness testimony admissible if it is “based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods

January 13, 2018

Is Daubert or Frye used for expert witness testimony admissibility in West Virginia?

The state of West Virginia follows the Daubert test for the admissibility of expert witness testimony. San Francisco v. Wendy’s Intern., Inc., 656 S.E.2d 734 (W. Va. 2007). Under this test, the court asks: “(1) is the witness an expert; and, if so, (2) is the expert’s testimony relevant and reliable?” Id. To determine this, the court analyzes whether the

January 12, 2018

Is Daubert or Frye used for expert witness testimony admissibility in Washington, D.C.?

The district of Washington, D.C. follows the Frye test for the admissibility of expert witness testimony. Jones v. U.S., 27 A.3d 1130 (D.C. Cir. 2011). Under this test, expert testimony is not admissible unless it has “gained general acceptance in the particular field in which it belongs.” Id. However, general acceptance “does not require unanimous approval.” Id. Once a specific

January 10, 2018

Is Daubert or Frye used for expert witness testimony admissibility in Utah?

The state of Utah does not follow the Daubert or Frye for the admissibility of expert witness testimony, but instead follows the Rimmasch test. Haupt v. Heaps, 131 P.3d 252 (Utah Ct. App. 2005). The Rimmasch test focuses on the reliability of the expert’s testimony, particularly in cases where the expert utilized “novel scientific principles or techniques” to reach its

January 9, 2018

Is Daubert or Frye used for expert witness testimony admissibility in Tennessee?

The state of Tennessee follows the Daubert test for expert witness admissibility. Dubois v. Haykal, 165 S.W.3d 634 (Tenn. Ct. App. 2004). Under this test, the trial court should determine whether an expert’s testimony is reliable based on five factors. Id. The factors are: “(1) whether scientific evidence has been tested and the methodology with which it has been tested;

January 8, 2018

Is Daubert or Frye used for expert witness testimony admissibility in South Dakota?

The state of South Dakota follows the Daubert test for the admissibility of expert witness testimony. State v. Lemler, 774 N.W.2d 272 (S.D. 2009). The purpose of this test is to ensure that expert testimony is reliable before it is admitted. Id. Under this test, courts should analyze: “(1) whether the theory or technique in question can be (and has

January 6, 2018

Is Daubert or Frye used for expert witness testimony admissibility in South Carolina?

The state of South Carolina has not adopted the Daubert test for the admissibility of expert witness testimony, but the analysis that the court uses is very similar to the Daubert test. State v. White, 642 S.E.2d 607 (S.C. Ct. App. 2007). Under this test, expert witness testimony will only be admitted once four factors are considered. Id. The factors

January 5, 2018

Is Daubert or Frye used for expert witness testimony admissibility in Rhode Island?

The state of Rhode Island follows the Daubert test for the admissibility of expert witness testimony. Morabit v. Hoag, 80 A.3d 1 (R.I. 2013). Under this test, the court should consider four factors when evaluating the admissibility of expert testimony. Id. However, these factors are “nonexclusive” and should be used to help the court guide its analysis. Id. The factors