Daubert: The Key to Expert Testimony

Sometimes in life and litigation, the key to winning and losing is the strength of your team. In criminal litigation, especially in the state of Michigan, the qualification of of expert can be a grueling task. With that stated, the case of Daubert v. Merrell Dow Pharmaceuticals, Inc.[1]has changed the dynamic of expert testimony. Let’s review the topic by discussing the following: 1. What exactly is an expert. 2. What factors will the court look at when reviewing the expert and 3. Who can qualify as an expert.

This is a common question that is posed on the Michigan Bar Exam but plays a crucial aspect in the field of litigation. In the simplest of terms, an expert is someone that can testify to something without having firsthand knowledge of the situation. A mere review of the situation can make this individual qualified to provide their opinion of the situation at hand.

Under this standard, the factors that may be considered in determining whether the methodology is valid are: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community. The factors presented gives the attorney a lot of leeway to present an expert and should the circuit court refuse to qualify, the qualified attorney will have an appealable issue to present to the Michigan Court of Appeals.

With the Daubert test, we have moved into a new age. Daubert replaced the “Frye” test and in essence broadened the view of an expert. Under the old test of Frye, scientific testimony was virtually the only way for an expert to become qualified.[2] The would present a limitation to physicians, engineers and medical professionals. With the evolution of Daubert, we see where any professional can potentially equate to an expert. For example, if you were litigating a bank robbery and the defendant had a large amount of makeup on and was a male that dressed as a woman, a qualified beautician would provide crucial testimony in court to explain the amount of time that defendant would have had to spend to place makeup on and change their appearance. To further add to this study, we sought the opinion of some of the top litigators in the state of Michigan to gather their insight into the issue.

Matthew McManus is the Founding Member of Ann Arbor Legal PLLC in Ann Arbor, Michigan. McManus has developed a reputation as one of the top researchers in the Midwest and has a practice of both civil and criminal law. When asked about expert testimony, McManus was quoted as saying, “A good expert is very costly but their testimony can be the difference between victory and defeat. Any lawyer worth their weight will cut into their own profit margin to help their client obtain the proper expert.”

Scott Grabel is known as the top criminal defense attorney in the state of Michigan. When asked about experts, Grabel stated, “The expert is a very sensitive topic. Many courts are thrown off by the desire to bring in an expert but having the right person on your team can push your case over the top. The value of the expert is something that you cannot out a price on.”

Ravi Gurumurthy runs Michigan Law North and added insight to the topic. Gurumurthy was quoted as saying, “You cannot try a capital case without an expert on your witness list. Finding the right expert is a challenge but to not have once in a treacherous situation is asking for a disastrous result.”

To learn more about the concept of experts and the attorneys’ cited in this article, visit their websites. Matthew McManus and Ann Arbor Legal are located at: https://www.annarboresq.com/. Scott Grabel and Grabel and Associates is located at: https://www.grabellaw.com/. Ravi Gurmurthy can be reached at: https://www.michiganlawnorth.com/.

William Amadeo is a partner at the law firm of Ann Arbor Legal in Ann Arbor, Michigan. In addition to Ann Arbor Legal, Amadeo is a Senior Associate for Grabel and Associates. Amadeo is also the owner and operator of BAT Tutoring in Lansing, Michigan with fellow attorney Ashley Johnson and has a column with “The Chronicle News” and other websites across the Internet.

• 509 U.S. 579 (1993)
• 293 F. 1013, (Note: California, Illinois, Maryland, Minnesota, New Jersey, New York and Pennsylvania still follow the Frye test).