a) References Daubert and follow its standard of “scientific knowledge” and use Rule 702 of the Texas Rules of Civil Evidence.
b) Added two more factors to the Daubert Test:
(1) extent to which the theory has been or can be tested
(2) whether the theory has been subjected to peer review and publication
(3) the technique’s potential rate of error
(4) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community.
(5) NEW: the non-judicial uses which have been made of the theory or technique
(a) Look at theories that haven’t been just brought up in court, but have been used outside of court proceedings. Daubert implies this point when discussing the process used by the plaintiff’s expert–he went to scientific literature (hard science) and then re-analyzed it. He re-analyzed the literature only for purposes of litigation.
(b) Is the opinion based on a process of analysis that is found to be useful in a non-litigation regime or it is only used for litigation.
(6) NEW: the extent to which the technique relies on the subjective interpretation of the expert.
(a) To the extent that the expert relies on his own experience, the judge should question if this is reliable evidence. TRCE and FRE 702 have clauses of experience, but knowledge based on hard science is articulated and less subjective.
(b) The extent to which there is subjective interpretation on part of the expert….
c) Do these two new factors help distinguish looking at reliability of a hard science vs. soft science?
(1) The factors are not exclusive.
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