Eight Eligibility Elements

Conclusion About Admissible Expert Opinions

I call these my “Eight Eligibility Elements.” This is “quick list”. Remember these elements and you will almost always know what the court wants to know before she lets the opinion into evidence. This list is expressed in layperson’s terms; it is expressed simply and as an unqualified assertion. Therefore it is limited. But it is useful.

ALL the following listed elements to not have to be present in every expert opinion for the opinion to be admissible. But if all or most of the following eight elements exist, the expert’s opinion probably will pass the judge’s gatekeeper tests. Conversely, if all of the eight elements are missing, the opinion probably will not pass the judge’s gatekeeper tests.

A more extensive laundry list of factors is found in the checklist that is Appendix 1 to this article. If you do not want to take the time to go through the extensive checklist in the appendix (or you simply want a “quick list”, then use these “Eight Eligibility Elements” as your short form checklist.

After you read this EEE”, click the link to continue reading the Daubert legal case history and the change in admissibility of expert opinions that case created, plus what steps you should take.

The EEE (Eight Eligibility Elements)

QUESTION: It is no longer enough that the expert is qualified and his/her knowledge would assist the jury. The judge must consider the expert’s opinion “reliable”. What is a reliable opinion?

ANSWER: If -

  1. they are a qualified expert in the exact field of inquiry,
  2. has reviewed an appropriate amount of pertinent data (including an appropriate amount of pertinent case documents or depositions),
  3. has read the appropriate articles or materials in the field,
  4. (where on-site investigation is appropriate) has interviewed the appropriate persons and inspected the appropriate site or product,
  5. has taken steps that an expert reasonably would take to take to solve the problem,
  6. has applied his/her knowledge and experience,
  7. if the opinion is in a field of expertise where the following factors are applicable (usually in a scientific field) he/she has verbalized:
    • an appropriate specific method, theory or technique was used to obtain the conclusion;
    • the method, theory or technique can be, or has been, tested;
    • the method, theory or technique has been subjected to peer review and publication;
    • the known or potential rate of error with respect to the technique, and the standards controlling the technique’s operations are reasonable;
    • and the expert’s method, theory or technique enjoys general acceptance within the relevant industry,
  8. and, there is a logical connection between the data and the expert’s conclusion (to wit: the data has been bridged to the conclusion by sound inductive or deductive reasoning)

Then the trial judge as gatekeeper should find the proffered testimony reliable and admit it into evidence.

On the other side of the coin, if all of these elements are missing in the foundation for the testimony, then the trial judge as gatekeeper should find the proffered testimony not reliable and not admit it into evidence.

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