Since the United States
Supreme Court decided Daubert v. Merrill Dow Pharmaceuticals,
509 U.S. 579 (1993), state courts in Missouri have struggled with
the standard for admission of expert testimony. Some courts have
utilized the standards set forth in Frye v. United States,
293 F. 1013 (1923), while other opinions have applied the standards
set forth in Daubert and other courts have straddled the fence
and applied some of both standards. In State Board of Registration
for the Healing Arts v. McDonagh, D.O., 2003 WL 22999293 (Dec.
23, 2003 Mo. Banc), the Missouri Supreme Court emphasized that
the standards for admissibility of expert testimony in Missouri
are neither those of Daubert nor Frye, but those set out in Mo.Stat.Ann.
§490.065, which provides:
490.064. Expert witness, opinion
testimony admissible – hypothetical question not
required, when:
- In any civil action, if scientific,
technical or other specialized
knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education may
testify thereto in the form of an opinion or otherwise;
- Testimony by such an expert witness in the
form of an opinion or inference otherwise admissible is not
objectionable because it embraces an ultimate issue to the decided
by the trier of fact.
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- The facts or data in a particular
case upon which an expert bases an opinion or inference may
be those perceived by or made known to him at or before the
hearing and must be of a type reasonably relied upon by experts
in the field in forming opinions or inferences upon the subject
and must be otherwise reasonably reliable.
- If a reasonable foundation is laid, an expert
may testify in terms of opinion or inference and give the reasons
therefore without the use of hypothetical questions, unless
the court believes the use of a hypothetical question will make
the expert’s opinion more understandable or of greater
assistance to the jury due to the particular facts of the case.
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In a refreshingly clear and direct
way, Judge Michael A. Wolff, in a concurring opinion, titled,
“Advice for Lawyers on Expert Witnesses” stated:
Forget Frye. Forget Daubert. Read the statute. Section 490.065
is written, conveniently, in English. It has 204 words.
These straight-forward statutory words are all we really need
to know about the admissibility of expert testimony in civil proceedings.
Appellate opinions are rarely so concise or easily understood.
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