Editing Daubert standard (section)

==Use==
Although the ''Daubert'' standard is now the law in federal court and over half of the states, the [[Frye standard|''Frye'' standard]] remains the law in some jurisdictions including California, Illinois, Pennsylvania, and Washington.<ref>Giannelli & [[Edward Imwinkelried|E. Imwinkelried]], Scientific Evidence §§ 1.06, 1.16 (4th ed. 2007).</ref> Florida passed a bill to adopt the ''Daubert'' standard as the law governing expert witness testimony, which took effect on July 1, 2013.<ref>[http://newsandinsight.thomsonreuters.com/Legal/News/2013/06_-_June/Florida_adopts_new_standard_for_expert_evidence/ Reuters]</ref>  On May 23, 2019, the [[Supreme Court of Florida|Florida Supreme Court]] accepted the ''Daubert'' standard.<ref>{{Cite web|last=Lean|first=Raychel|url=https://www.law.com/dailybusinessreview/2019/05/23/daubert-evidence-standard-takes-immediate-effect-in-florida-after-high-court-turnaround/|title = 'Daubert' Evidence Standard Takes Immediate Effect in Florida After High Court Turnaround|date=May 23, 2019|website=Law.com}}</ref><ref>{{cite web |last1=McDonough |first1=Sean M. |last2=Duerden |first2=Angela M. |title=The Daubert Standard Once Again Controls in Florida State Court |url=https://www.natlawreview.com/article/daubert-standard-once-again-controls-florida-state-court |website=[[The National Law Review]] |date=June 5, 2019}}</ref> On August 28, 2020, The [[Maryland Court of Appeals]] adopted the ''Daubert'' standard.<ref>Rochkind v. Stevenson, 471 Md. 1 (2020), https://www.mdcourts.gov/data/opinions/coa/2020/47a19.pdf</ref>

Although trial judges have always had the authority to exclude inappropriate testimony, prior to ''Daubert'', trial courts often preferred to let juries hear evidence proffered by both sides.<ref name="Berger">{{cite journal 
 |last=Berger 
 |first=Margaret A. 
 |title=What Has a Decade of ''Daubert'' Wrought 
 |journal=American Journal of Public Health 
 |volume=95 
 |year=2005 
 |issue=S1 
 |pages=S59–65 
 |doi=10.2105/AJPH.2004.044701 
 |pmid=16030340 
 |hdl=10.2105/AJPH.2004.044701 
 |hdl-access=free 
 }}</ref> Once certain evidence has been excluded by a ''Daubert'' motion because it fails to meet the relevancy and reliability standard, it will likely be challenged when introduced again in another trial. Even though a ''Daubert'' motion is not binding to other courts of law, if something was found untrustworthy by one court, other judges may choose to follow that precedent. Of course, a decision by an appellate court that a piece of evidence is inadmissible under ''Daubert'' would be binding on district courts within that court's jurisdiction.{{Citation needed|date=April 2019}} An evidentiary hearing on the motion may not be necessary if the court finds that it would not assist the court in ruling on any of the matters in the motion.

===Timing===
To attack expert testimony as inadmissible, counsel may bring pretrial motions, including [[Motion in limine|motions ''in limine'']].{{efn|The third circuit has emphasized the importance of conducting ''in limine'' hearings under Fed. R. Evid. 104 (resolution of preliminary questions) when making reliability determinations required by Fed. R. Evid. 702 and ''Daubert v. Merrell Dow Pharmaceuticals, Inc.'', 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). ''See''  ''Padillas v. Stork-Gamco, Inc.'', 186 F.3d 412, 417 (3d Cir. 1999);  ''Voilas v. General Motors Corp.'', 73 F. Supp. 2d 452, 455 (D.N.J. 1999) (not holding hearing in this case, however). See also 1 Weinstein's Federal Evidence, Ch. 104, Preliminary Questions  (Matthew Bender 2d ed.); Edward J. Imwinkelried & David A. Schlueter, Federal Evidence Tactics, Ch. 1, Article I: General Provisions, § 1.04 (Matthew Bender).}}  The motion ''in limine'' may be brought prior to trial, although counsel may bring the motion during trial as well.<ref>See, e.g., Smoot v. Mazda Motors of America, Inc., 469 F.3d 675, 676 (7th Cir. 2006) (case dismissed after plaintiff expert's testimony excluded); Curtis v. M&S Petroleum, Inc., 174 F.3d 661, 667 (5th Cir. 1999); United States v. Nichols, 169 F.3d 1255, 1265-1266 (10th Cir. 1999 ); Heller v. Shaw Indus., Inc., 167 F.3d 146, 155, 157-158 (3d Cir. 1999); Ruiz-Troche v. Pepsi Cola of Puerto Rico, 161 F.3d 77, 90 (1st Cir. 1998); Jack v. Glaxo Wellcome Inc., 239 F. Supp. 2d 1308, 1319 (D. Ga. 2002) (rejecting objection of untimeliness of motion ''in limine'' to exclude expert testimony on ground that motion ''in limine'' is not dispositive); United States v. Lester, 234 F. Supp. 2d 595, 597-598 (E.D. Va. 2002) (criminal defendant's motion to allow expert testimony regarding reliability of eyewitness testimony denied); Lentz v. Mason, 32 F. Supp. 2d 733, 737 (D.N.J. 1999).</ref> A motion attacking expert testimony should be brought within a reasonable time after the close of [[Discovery (law)|discovery]] if the grounds for the objection can be reasonably anticipated.<ref>See, e.g., Pineda v. Ford Motor Co., 520 F.3d 237, 241-242 (3d Cir. 2008) (after deposition of plaintiff's expert, defendant filed alternative motions to exclude testimony of plaintiff's expert and for summary judgment, and motion for Daubert hearing).</ref> The hearing should be made well in advance of the first time a case appears on a trial calendar. 

In one case where a Daubert hearing was conducted on the day of the trial, in which the district court excluded all plaintiff's expert testimony, resulting in the dismissal of all claims, the appellate court remanded the case because of multiple irregularities and a defective record of lower court proceedings.<ref>Webster v. Fulton County, Ga., 85 F. Supp. 2d 1375, 1377 (N.D. Ga. 2000) (denying defendant's Daubert motion as untimely, when brought after court had relied on plaintiff expert's report in denying defense summary judgment motion, and within days of trial date). See also Alfred v. Caterpillar, Inc., 262 F.3d 1083, 1087 (10th Cir. 2001 ) (counsel should not ''sandbag'' Daubert concerns until close of opponent's case''; however, appellate court did not reach issue of late filing of motion because district court chose to address defendant's Daubert objections on merits, rather than deeming them waived); Pullman v. Land O'Lakes, Inc., 262 F.3d 759, 763 (8th Cir. 2001) (appellate court noted with disapproval that defendant failed to bring Daubert motion ''until shortly before the trial began''; Daubert inapplicable to experimental test evidence not presented by expert witnesses).''</ref> The appellate court noted that in cases that rely heavily on expert testimony, a district court should set a discovery<ref>See Smith v. Ford Motor Co., 215 F.3d 713, 722 (7th Cir. 2000) . See also Goebel v. Denver and Rio Grande W. R.R., 215 F.3d 1083, 1087 (10th Cir. 2000) (district court orally denied motion to exclude expert testimony on morning of trial); McPike v. Corghi S.p.A., 87 F. Supp. 2d 890, 891 n.1 (E.D. Ark. 1999) (court telephoned attorneys with ruling denying defendant's motion to exclude plaintiff's expert testimony, because closeness of trial did not allow time for formal written memo and order at that time; court later rendered substituted memorandum and order, fully stating reasons for its decision in writing).</ref> and trial schedule that realistically provides both sides with an adequate opportunity to introduce necessary evidence. The application of Federal Rule of Evidence 702 to proposed expert testimony can often be an uncertain process and is best conducted in such a manner that litigants have a reasonable opportunity to locate experts who meet the rule's requirements.

In another case in which the defendant was apparently at fault for filing a motion to exclude expert testimony one week before the trial date, the district court denied the motion on that ground, but it advised the defendant that it might conduct its own ''[[voir dire]]'' of the expert in question before he testified. The district court preliminarily found that defendant's motion was predicated on a ruling made almost three months earlier by a district court in another state, and that defendant had shown no good cause for waiting to file the motion. The defendant ultimately lost that case, following the admission of the disputed expert testimony, and ultimately failed in its appeal.<ref>See Clay v. Ford Motor Co., 215 F.3d 663, 674 (6th Cir. 2000)</ref>