Economic Expert Evidence in the State Courts: Frye v. Daubert

Economic evidence in the state courts:

Traditionally, attorneys and legal scholars have believed that scientific evidence, including testimony concerning economic damages, faces a lower hurdle is states that adopt Frye instead of Daubert standards. The conventional thinking is that the Frye standards of "general acceptability" are lower than the stricter and more defined requirements of Daubert.

Recent research suggest that the conventional thinking on this issue is not backed up by empirical facts. (For a copy of the working paper, click here...)


The research of two law professors, which uses a novel approach based on the removal rate of toxic tort cases, suggest that the states choice of Frye or Daubert has little or no effect on the admissibility of scientific evidence. Specifically, these researchers examined the rate at which defendants successfully removed toxic tort cases from state court to Federal court. In their research, the authors compared the removal rate of states that adopted Daubert and Frye standards.

According to the authors, if the choice matters then if all other case facts are equal, the data should show that in states that adopted tougher Daubert standards, the removal rate (from state to federal court) should be lower since there would be fewer reasons for the defendants to want to remove the case. Likewise, in states that experienced a recent change in their handling of scientific evidence, say from Frye to Daubert, the data should show a change in the removal rate.

The authors empirical work, which included a number of advanced statistical analyses, suggested that in contrast to conventional wisdom there was no statistically significant difference in either the inter-state or intra-state removal rate.