What is the Daubert Standard as it Relates to Expert Testimony?

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Why Do We Sometimes Need Expert Witnesses to Resolve Legal Disputes?

The standard legal reason that judges typically give to juries as to why an expert witness is called to the stand at trial is that expert witnesses are needed to explain concepts and evidence that is “beyond the ken” of the average juror.  The labyrinth of rules and regulations, not to mention the clinical expertise necessary to prove up a typical Medicare Fraud case, means experts are often needed. Let’s unpack that a little.

Our system of justice, in both civil and criminal cases, relies on juries made up of citizens in the community to decide the facts of a case.  In other words, our jury system gives the community the ability to settle disputes between parties by making a decision as to who has the more compelling, more persuasive case after each side has made its presentation.

Jurors are expected to draw from their own logic, common sense, and personal experience to arrive at a decision on which party should win the case.  Sometimes, however, there is technical information that is presented at trial that falls outside an average juror’s life experience, i.e., it is “beyond the ken” of an average juror. 

For example, in a False Claims Act case involving Medicare billing, the jurors need to learn about how healthcare providers typically bill Medicare in order to understand whether, in any given case, the healthcare provider on trial violated the False Claims Act. That is where expert witnesses come in.

An expert witness is called to educate the jurors on a concept or process that the jurors need to understand to make a decision on the facts of a case.      

How Can Someone Become an “Expert?”

A witness cannot simply take the witness stand at trial and proclaim that he or she is an expert in a particular field.  Rather, under Rule 702 of the Federal Rules of Evidence, a witness must be qualified as an expert before he or she can give expert testimony.  How can a witness be qualified as an expert?  The federal rule has a four-part test.  A witness can be qualified to testify as an expert if:

  1. The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
  2. The testimony is based on sufficient facts or data;
  3. The testimony is the product of reliable principles and methods; and
  4. The expert has reliably applied the principles and methods to the facts of the case.

While those four requirements seem somewhat straightforward, like most things in the law the “devil is in the details.”  For example, litigants may get into disputes about what are “sufficient facts or data,” or what makes a principle and method “reliable” enough.  Because of those disputes, the United States Supreme Court created what is now commonly called the Daubert standard.

What is the Daubert Standard?

 The Daubert standard comes from the Supreme Court’s 1993 decision in Daubert v. Merrell Dow Pharms., Inc.  In that case, the Court provided a framework by which courts throughout the country can determine whether an expert’s testimony is admissible at trial, thereby meeting the four requirements in Rule 702 listed above.

The Daubert standard essentially calls on courts to focus on two things:  reliability and relevance

With regard to reliability, the Supreme Court provides a list of factors that courts should consider.  They are:

  • Whether the expert’s theory can be or has been tested;
  • Whether the theory has been subject to peer review and publication;
  • The known or potential rate of error of a technique or theory when applied;
  • The existence and maintenance of standards and controls; and
  • The degree to which the technique or theory has been generally accepted in the scientific community.

The Supreme Court notes that the list above is not exclusive, and that courts can look to other considerations based on the particular circumstances of the case at hand. 

With regard to relevance, the Supreme Court instructs that an expert’s testimony, to be admissible, must assist the jury “to understand the evidence or to determine a fact in issue.”  In other words, if the expert’s testimony would tend “to make a fact more or less probable,” then it is likely relevant. 


There you have it – the principal components of how an expert witness is qualified as an expert, and the Daubert standard which helps courts determine whether expert testimony should be admitted at trial. 

If you have further questions on this or any Medicare Fraud subject, please contact the Whistleblower Firm – Nolan Auerbach & White, LLP.  We have the experience and resources to protect healthcare fraud whistleblowers.  Contact us online, or by calling 800-372-8304 today.

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