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The Fifth Element: Adding to the Daubert Criteria

By John L. Tate and Lucy M. Heskins

In the 15 years since Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the criteria used to determine reliability of opinion evidence under FRE 702 have become a familiar litany.

Most commentators find in Justice Harry Blackmun's opinion four nonexclusive factors for assessing whether the methodology underlying proffered opinion testimony provides the necessary assurance of reliability. E.g., Standards and Procedures for Determining the Admissibility of Expert Evidence After Daubert, ACTL (1994). In shorthand form, trial lawyers refer to the four factors as: 1) testability, 2) peer review, 3) potential error rate, and 4) general acceptance.

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