resource on Daubert Test. Judge Nichols used Daubert to bar Shaken Baby Syndrome testimony.

Discussion of when Daubert should be applied, and the areas and topics which are exempt from Daubert reviews.  Discussion of Judicial Notice used as a method to avoid a Daubert hearing.  Also discussion of use of new Daubert standards to obtain introduction of medical causation evidence.


The effect of Daubert has found its way to the trial Courts of Kentucky.  Defense attorneys have recently sought to suppress evidence obtained by radar devices, blood tests, field sobriety tests, PBT’s and the Breathalyzer 5000.   In these cases they generally file a pre–trial motion to suppress that just demands a Daubert hearing.   These motions have not yet found their way to the appellate level, and it is appropriate that we examine the consequences of the Daubert ruling on these issues.

The ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L Ed2d 469 (1993), and its application to Kentucky criminal law by Mitchell v. Commonwealth, Ky. 908 SW2d 100, (l995) require that prior to the introduction of the results of field sobriety tests, that the court is required to conduct a Daubert hearing to test the scientific basis for these tests.

  Pursuant to Mitchell, infra, standards to be reviewed by the trial court in conducting a Daubert hearing include consideration of:

 1.      whether the scientific method or theory at issue has been generally accepted in the relevant scientific   community;

2.      whether the method or theory can be tested;

3.       whether the method or theory has been subjected to peer review and publication;

4.      whether there are known or potential rates of error;

5.      consideration of the existence and maintenance of standards controlling the technique’s operation.

         A review of the cases, appear to reveal that the court should consider these factors, but is not required to find that all of them have been proven.



           Before we subject the field sobriety tests to a Daubert hearing, let us review the ruling in Johnson v. Commonwealth,  case number 96-SC-0577-M 12/16/1999.   Johnson v. Commonwealth held:

        “Daubert also recognized that some scientific methods, techniques and theories are so firmly established as to be proper subjects of judicial notice pursuant to FRE 201(b)(2).(See KRE 201)…thus it was held that once an appropriate appellate court holds that the Daubert test or reliability is satisfied, lower courts can take judicial notice of the reliability and validity of the scientific method, technique or theory at issue.

 Courts are “right to admit or exclude much evidence without ‘re-inventing the wheel’ every time by requiring the parties to put on full demonstrations of the validity or invalidity of methods or techniques that have been scrutinized well enough in prior decisions to warrant taking judicial notice of their status.?


      “We recently held in Fugate v. Commonwealth, supra, that the scientific reliability of the RFLP and PCR methods of DNA testing have been sufficiently established that a Daubert hearing is no longer required before such evidence is admissible at trial. For other types of scientific methods and theories which have been recognized as reliable by our courts see  Commonwealth v. Wirth, 936 S.W.2d 78 (l996) (breath testing to determine blood alcohol content); Bartlett v. Commonwealth, ex rel. Callowav., Ky. 705 S.W.2d 470 (1986) and Perry v. Commonwealth. Ex rel. Kessinger, Ky. 652 S.W.2d 655 (l983) (HLA blood typing to determine paternity): Garr v. Commonwealth 463 S.W2d 109 (l971), (fiber analysis; Morris v. Commonwealth 208 S.W.2d 58 (l948Z) (ballistics analysis; Shelton v. Commonwealth 134 S.W.2d 653 (l939) (fingerprint analysis).  On the basis of these decisions, trial judges in Kentucky can take judicial notice that those methods or techniques have achieved the status of scientific reliability.?

                                                 Also JOHNSON CONTINUES:             

       “As previously noted, evidence of hair analysis by microscopic comparison has been admissible in the Commonwealth for many years.  Wilhite v. Commonwealth of Ky., 574 S.W.2d 304 (1978)…

 “Although we have never specifically addressed the scientific reliability of this method of hair analysis, we must assume that it at least satisfied the test of general acceptance; for otherwise , the evidence would never have been admitted in the first place.?

 “ The absence in our previous opinions of any in-depth analysis under the “general acceptance? test was probably due to the overwhelming acceptance of this procedure as a reliable scientific method for the past fifty years….

 Based upon the overwhelming acceptance of this evidence by other jurisdictions, as well as our own history of routine admission of this evidence at trial, trial courts in Kentucky can take judicial notice that this particular method or technique is deemed scientifically reliable.?



 Let us now examine in more detail the requirements of the Kentucky Rules of Evidence relating to judicial notice.

(a)           Scope of rule.  This rule governs only judicial notice of adjudicative facts.


 (b)    Kinds of facts.  A judicially noticed fact must be one not subject to reasonable dispute in that it is either:


(1)    Generally known within the county from which the jurors are drawn, or, in a nonjury matter, the county in which the venue of the action is fixed; or


(2) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.


(c)        When discretionary.  A court may take judicial notice, whether  requested or not.                           (d)      When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.

      (e) Opportunity to be heard.  A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the  tenor of the matter noticed.  In the absence of prior notification, the request may be made after judicial notice has been taken.

      (f)      Time of taking notice. Judicial notice may be taken at any stage of the proceeding.

      (g)    Instructing the jury.  The court shall instruct the jury to accept as conclusive any fact judicially noticed

   Another basis for the admission of this evidence is the “common-sense? or  “generally known? standards found in Kentucky case law. See: Spears v. Commonwealth, 253 S.W.2d 570 (Ky. l952); Casey Co. Board of Education vs.Luster, 282 S.w.2d 333 (Ky. l955), Frank v. Silvers, 414 S.W.2d 887 (Ky. l967).

  These cases uphold the proposition that things need not be beyond dispute to be part of a court’s reasoning in taking judicial notice of a fact that is generally known to all or is a matter of common-sense.

 (“Kentucky appellate courts have used the terms “judicial notice and “common knowledge? interchangeably, to refer to assumptions about human behavior and natural phenomena to support the holding in a case.?*)

  Note what the court said in Johnson:

         “Although we have never specifically addressed the scientific reliability of this method of hair analysis, we must assume that it at least satisfied the test of general acceptance; for otherwise , the evidence would never have been admitted in the first place. The absence in our previous opinions of any in-depth analysis under the “general acceptance? test was probably due to the overwhelming acceptance of this procedure as a reliable scientific method for the past fifty years….Based upon the overwhelming acceptance of this evidence by other jurisdictions, as well as our own history of routine admission of this evidence at trial, trial courts in Kentucky can take judicial notice that this particular method or technique is deemed scientifically reliable.?



But when Daubert is required:   The Ky. Supreme has applied Daubert to criminal law.


  908 S.W.2d 100 MITCHELL V. COMMONWEALTH (S. Ct. 1995)

In 1993, the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals Inc., U.S., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), analyzed Fed. R. Evid. 702 in relation to Frye v. United States, 54 App. D.C. 46, 293 F. 1013. Fed. R. Evid. 702 and KRE 702 contain the same language. The United States Supreme Court held that Fed. R. Evid. 702 supersedes the Frye standards.

“Accordingly, we adopt the standard of review set forth in Daubert. We overrule the portion of Harris v. Commonwealth, Ky., 846 S.W.2d 678 (1992), that conflicts with Daubert v. Merrell Dow Pharmaceutical Inc. However, it must be emphasized that we retain as much of Harris v. Commonwealth that limits the determination of admissibility of DNA evidence to a case-by-case basis. “

                            (THE ESSENSE OF DAUBERT)

When “faced with a proffer of expert scientific testimony,” the trial judge must determine at [a preliminary hearing] “whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” Daubert, 125 L. Ed. 2d at 482.

According to the United States Supreme Court, the trial court must make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology can be applied to the facts in issue. Id.

“In order to qualify as ‘scientific knowledge,’ an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation — i.e., ‘good grounds,’ based on what is known. In short, the requirement that an expert’s testimony pertain to ‘scientific knowledge’ establishes a standard of evidentiary reliability.”

 Id. at 481. In addition, “Rule 702′s ‘helpfulness’ standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.” “Id. at 482.

 In applying Rule 702, “lower courts should look at whether the {S.W.2d 102} scientific knowledge being presented has been tested, whether it has been subject to peer review and publication,

 what the evidence’s known rate of error is,

 and whether the evidence has a particular degree of acceptance in the relevant community.” Abramson at § 27.83 n.2 (Supp. 1994) (summarizing Daubert, 125 L. Ed. 2d at 482-485).   

 ”In order to understand the factors better, it is important to examine Daubert in further detail. First, according to the United States Supreme Court, lower courts should examine whether the theory or technique can be tested. Daubert, 125 L. Ed. 2d at 482-83. A second consideration is “whether the theory or technique has been subjected to peer review and publication.” Id. at 483. “Submission to the scrutiny of the scientific community is a component of ‘good science,’ in part because it increases the likelihood that substantive flaws in methodology will be detected.” Id.    The United States Supreme Court noted that publication alone does not necessarily correlate with reliability.      An additional consideration, “in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error, . . . and the existence and maintenance of standards controlling the technique’s operation.” Id. 

Finally, “‘general acceptance’ can yet have a bearing on the inquiry.” Id. “Widespread acceptance can be an important factor in ruling particular evidence admissible, and ‘a known technique that has been able to attract only minimal support within the community[]‘ . . . may properly be viewed with skepticism.” Id. at 483 (quoting United States v. Downing, 753 F.2d 1224, 1238 (3d Cir. 1985)). 

“To summarize, pursuant to KRE 702 and Daubert, expert scientific testimony must be proffered  (BEFORE INTRODUCTION,) to a trial court. The trial court judge must conduct a preliminary hearing on the matter utilizing the standards set forth in Daubert.”

On appeal, the standard of review is whether in deciding the admissibility of the evidence the trial judge abused his or her discretion. 



Before Daubert  the admissibility of expert testimony was governed by the test set forth in Frye v U.S., 293. Fed. 1013, (D.C. Cir 1923).

Frye focused on the experts conclusions.  Frye demanded that an expert’s theories and conclusions be generally accepted by the scientific community regardless of the scientific soundness of his or her methodology and reasoning.

In contrast Daubert does not require that an opinion be generally accepted by the scientific community, so long as the methods used by the expert to arrive at his or her conclusions are scientifically sound.

 In shifting the emphasis from the expert’s opinion to the methods used to arrive at that opinion, Daubert no longer requires an expert’s opinion to be correct.  In fact, under Daubert a court cannot even consider the scientific correctness of an opinion because “..(i)t is not the trial court’s role to decide whether an expert’s opinion is correct. See:  Smith v. Ford Motor Co. 215 F2d 713 (7th. Cir. 2000) and Blobetti v. Sandoz Pharmaceuticals Corp. 111 F.Supp 2d 1174, 1180 (N.D.ald 2000)

                                                 FACTORS DETERMINING SCIENTIFIC SOUNDNESS:

An expert opinion is scientifically sound under Daubert when it is based on scientifically valid techniques, theories, methodology, and data. The Daubert court suggested various factors to determine the scientific validity of opinions and the techniques and methodology upon which they are based:          (The following are mentioned in Daubert)

1.      Whether the opinion can be and has been tested;

2.           Whether the expert’s conclusions rely upon subjective interpretation;

3.      Whether the opinion has been subjected to peer review and/or publication;

4.            Whether it has a known or potential rate of error;

5.      Whether it is generally accepted by the relevant scientific community;

6.      Whether the opinion is based on a technique for which there exist, and are maintained, standards controlling            the technique’s operation;

7.      The relationship of the technique to methods that have been established to be reliable;

8.           Whether the opinion was based on research independent of litigation or developed expressly for purposes of testifying, and:

9.          Qualifications of the expert

In short the courts would like to see that “an expert’s pro-offered testimony grows out of pre-litigation research or that the expert’s research has been subjected to peer review…(or that he has reached his conclusion based on)…some objective source – a learned treatise, the policy statement of a professionial association, a published article in a reputable scientific journal or the like –to show that they have followed the scientific method, as it is practiced by a recognized minority of scientists in their field? (See Daubert).

Proving legal causation requires proof that a particular agent caused a particular organ to malfunction. Causation does not require knowledge of the pathophysiology, or the disease process, so long as it is clear that the etiologic agent somehow caused the patient’s signs and symptoms.

“Not knowing the mechanism whereby a particular agent causes a particular effect is not always fatal to a plaintiff’s claim. Causation can be proved even when we don’t know precisely how the damage occurred, if there is sufficiently complellng proof that the agent must have caused the damage somehow.?   (See Daubert)


      Proving a disease process is a three step procedure:

1.     prove that the patient’s signs and symptoms are due to a disease process affecting a particular organ of the body.


2.     prove the “general causation?—that the offending agent (i.e. the negligence of the defendant)…was capable of causing the plaintiff’s medical illness.

            Proving general causation generally requires epidemiological, animal and laboratory studies, preferably published in peer-reviewed journals.  See Tanner v. Westbrook, 174 F.3rd. 542 (5th. Cir. 1999).   While the courts in general favor large epidemiological studies..?This requirement for publication does not exclude situations where the science is so new when the illness or its etiology are so new that scientists have not yet had time to study the disease for publication.. See: Turner v. Iowa Fire Equipment Co, 229 F3d 1202, 1209, (8th. Cir. 2000). Heller v. Shaw Industries, Inc. 167 F3rd. 146, 155 (3rd. Cir. 1999)  It is been held that case studies alone will not suffice to prove general causation.    Also extrapolating animal studies to humans has been rejected by some courts. Hall v. Baxter Healthcare Corp., 947 F Supp 1387 (D.Or.1996)

            To introduce proof in the absence of a large epidemiological study, the courts have allowed evidence that studies demonstrating that the agent is capable of causing the same phatophysiology as that suffered by the plailntiff. (Examples:  liver damage from Tylenol, inhalation damage from talc, cessation of blood pressure medications causing heart attack ex: procardia stopped to cure patient’s sexual disfunction.)

This requires two proofs: (1) that the plaintiff is suffering a specific pathophysiology, and

                                       (2) that the agent can cause that same pathoplysiology.

                                       See:  Westberry v. Gummi, 178 F.3rd. 257 (4th. Cir. 1999).

3.     only then can “specific causation? be addressed…(i.e. was the agent the cause of this plaintiff’s illness in this case.


           Federal courts, following the principles set forth in Daubert appear to have recognized the medical concept of pathophysiology, the process by which an agent causes an organ of the body to malfunction. Faced with cases in which there is insufficient scientific proof establishing or refuting general causation, the courts have fashioned a sensible approach using pathophysiology as a substitute for general causation so long as the plaintiff is shown to be suffering the same pathophysiology.


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