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Accident Reconstruction Forensic Engneering ServicesCustom Forensic Solutions

Standards For Expert Testimony or Frye v Daubert

It’s a scene out of almost every courtroom thriller ever made – the expert witness takes the stand. Their credentials are introduced into the record, they are challenged by the other side, legal arguments ensue, tension builds as the judge readies to make a decision.

In the real world, the judge’s decision is governed by one of two standards, one that goes back to 1923, the other 1993. Which standard is applied is a matter of jurisdiction. What standards Frye and Daubert mandate – and why – is something that’s crucial to understand long before a matter goes to trial.

After all, if the court rules an expert’s testimony inadmissible - especially in the middle of a trial - it will have a catastrophic effect, the kind that sinks most cases. Luckily, we know what the standards are; unfortunately, standards for expert witness admissibility are not uniform in the United States. The States are torn between Daubert and Frye.

The Cases

The governing standards were established in two seminal cases — Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Federal courts all follow Daubert. State courts are divided between the two but tend to add their own interpretations. Simply put, the admissibility of expert testimony is variable between jurisdictions. It’s critical, then, to understand the difference between the Daubert and Frye standards, their specific jurisdictional variations, and any recent, applicable case law, prior to trial, ideally, prior to retaining your expert.

The Frye Standard: What it Means

The standard set in 1923 in Frye v. United States is deceivingly simple. It stated that an expert opinion is admissible if the scientific technique on which the opinion is based is “generally accepted” as reliable in the relevant scientific community.

In Frye, the Court refused to allow expert testimony concerning a lie detector test. The reason, one that still applies to lie detector tests, was that lie detectors had “not yet gained such standing and scientific recognition among physiological and psychological authorities.” This gave rise to the “general acceptance” test.

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone, the evidential force of the principle must be recognized, and while the courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

It took decades for the Frye standard to find a wide following. In the 1970s it was employed predominantly in criminal cases. It branched itself into civil cases – particularly toxic torts, in the 1980s. The more Frye was cited, the more criticism it incurred. Some critics noted that the ‘test’ was vague and could not reliably manage complex scientific testimony. Eventually, those criticisms led to Daubert.

The Daubert Standard: What to Consider

In Daubert v. Merrell, the Supreme Court effectively overruled Frye in federal courts. It ruled that Frye was ‘inconsistent’ with Rule 702 of the Federal Rules of Evidence. The Court held that the twin standards of Rule 702—relevance and reliability— were incompatible with the stricter “general acceptance” test.

While the new standard encouraged a more liberal approach to admitting expert testimony it also stressed the importance of subjecting a potential expert witness to vigorous cross-examination instead.

The Daubert admissibility standards for expert testimony were reinforced and somewhat expanded upon in another SCOTUS case in 1997 - General Electric Co. v. Joiner, 522 U.S. 136. There, the Court emphasized the importance of expert methodology instead of focusing solely on the conclusory opinion, finding that “conclusions and methodology are not entirely distinct from one another.”

The Court emphasized the importance of a trial judge’s “gatekeeping responsibility” when admitting expert testimony and listed several non-exhaustive factors to consider:

  • Whether the expert’s technique or theory can be tested and assessed for reliability
  • Whether the technique or theory has been subject to peer review and publication
  • The known or potential rate of error of the technique or theory
  • The existence and maintenance of standards and controls
  • Whether the technique or theory has been generally accepted in the scientific community

Joiner’s lasting importance is that it also set forth the standard of review for appellate courts ruling on a district court’s expert testimony and evidentiary decisions. Joiner held that, “while the Federal Rules of Evidence allow district courts to admit a somewhat broader range of scientific testimony that would have been admissible under Frye, they leave in place the gatekeeper role of the trial judge in screening such evidence.” The Court “rejected the notion propounded by several circuits that they should engage in a stringent review of decisions excluding scientific evidence proffered by plaintiffs in toxic tort and product liability cases.”

In a later ruling, the Supreme Court held that there was no relevant distinction between experts who rely on scientific principles and those who rely on “skill- or experienced-based observation,” stressing that Rule 702 of the Federal Rules of Evidence, “makes no distinction between scientific knowledge and technical or other specialized knowledge.

The Difference Between the Daubert and Frye Standards

Daubert’s standards are broader that Frye. While Frye essentially focuses the question – whether the expert’s opinion is generally accepted by the relevant scientific community – Daubert offers a list of factors to consider, factors that can lead to vigorous cross examination.

Frye arguably puts the admissibility of an expert witness’s methods in the hands of the expert’s own scientific community. Daubert puts the admissibility of an expert witness squarely on the judge while providing a guideline of factors to consider. It is telling that in Daubert, Chief Justice Rehnquist famously noted that the function does not impose on the court “the obligation or the authority to become amateur scientists.”

Missing in Daubert, however, is the amount of weight a judge should give to each Daubert factor or if one is more important than another. All that has been noted since 1997 in that regard is an aside Justice Scalia made in another case, “Daubert factors are not holy writ, in a particular case the failure to apply one or another of them may be unreasonable, and hence an abuse of discretion.”

Daubert is the standard in every federal court. Frye is the standard in approximately eight states – we write ‘approximately' because state legislatures have been known to change the standard. The states that have adopted Daubert have usually done so while adding their own interpretation to the standard. A state-to-state knowledge of those interpretations is crucial.

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McDowell Owens Forensics Expert Witness Services

The right forensic expert is a powerful advantage during litigation; the wrong forensic expert is a disadvantage that is virtually impossible to overcome. The right forensic expert is someone who knows the science, pours through every piece of evidence available, conducts tests, produces an unbiased detailed report, and makes it intelligible to a layperson. The wrong forensic expert is someone who fails to do all of the above.

The right forensic expert knows the difference between Frye and Daubert and the standards and practices of each state court system. McDowell Owens is the right firm. McDowell Owens’ team of highly credentialed, on-point experts has a proven track record of success helping lay audiences understand the value and strength of our findings.

We make the complex accessible for the non-expert.

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MO CHRISTOU

MO CHRISTOU

B.SC.

Engineering Technician

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Residential, Commercial, and Industrial Mechanical Investigation Support

  • Bachelor of Science in Biology, Spring Hill College, Mobile, AL 2001
  • Primary responsibilities include assisting with site examinations, including residential, commercial, and industrial fire losses. Additional duties include site documentation, evidence collection and preservation, preparation of full scale and reduced scale testing and data gathering, computer aided design reconstruction and presentation of facilities (AutoCAD), and preparation of scaled demonstrative litigation presentations.
  • Other responsibilities include assisting with insurance related claims, weather analysis, and research for litigated related cases involving Residential and Commercial construction, plumbing, foundation and roof inspections related to construction defect, water intrusion/damage and foundation failure/deflection analysis.
  • 2021-Present

    MCDOWELL OWENS ENGINEERING, INC.

    Houston, Texas

    Digital Media Manager & Technician Areas of primary interest include digital storage management, and creator of mixed media. Responsibilities include assisting engineers and fire scientists with documentation and evidence preservation, preparing computer aided design presentations as well as constructing and preparing full and reduced scale demonstrations, testing, and data acquisition.

  • 2003-2021

    THE JOY SCHOOL

    Houston, Texas

    Learning Specialist & Videographer 18 years of videoing and cataloging events for the school. Taught middle school science, created unique curriculum for students, and ran the science lab.

  • 2001-2003

    DUGAS & ASSOCIATES, LLC

    Denver, Colorado

    Legal Clerk, Researcher, Managed day-to-day operations, including receiving and organizing correspondence, drafted manuals and resources for identifying access to services, and reduced financial discrepancies by accurately managing accounting documentation while maintaining case costs and billing processes. Documented and supervised depositions for attorneys. Handled sensitive evidence and correspondence between county courts.

  • 2000-2001

    WEEKS BAY NAT. ESTUARINE RES. RESERVE

    Weeks Bay, AL

    Research Scientist, Intern Assisted in writing, editing, and creating their 5- Year Mission Statement for the Environmental Protection Agency. Developed and implemented programs for monitoring environmental pollution and water hazards. Conducted field tests to monitor local tributaries for a multitude of streams filtering into the Mobile Bay. Conducted mercury tests on tanker ships bilge systems in Mobile Bay Ship Channel. Helped to run Weeks Bay lab for testing and educational purposes.

  • Bachelor of Science, Biology
    Spring Hill College, Mobile, Alabama 2001
  • Investigating Motor Vehicle Fires Course by CFITrainer.net, in conjunction with The International Association of Arson Investigators, Inc. (IAAI), January 2023
  • Explosion Dynamics by CFITrainer.net, in conjunction with The International Association of Arson Investigators, Inc. (IAAI), August 2022
  • Ethics and the Fire Investigator by CFITrainer.net, in conjunction with The International Association of Arson Investigators, Inc. (IAAI), August 2022
  • Effective Investigation and Testimony by CFITrainer.net, in conjunction with The International Association of Arson Investigators, Inc. (IAAI), August 2022
  • Digital Photography and the Fire Investigator by CFITrainer.net, in conjunction with The International Association of Arson Investigators, Inc. (IAAI), August 2022
  • The Scientific Method for Fire and Explosion Investigation Course by CFITrainer.net, in conjunction with The International Association of Arson Investigators, Inc. (IAAI), July 2022
  • Writing the Initial Origin and Cause Report by CFITrainer.net, in conjunction with The International Association of Arson Investigators, Inc. (IAAI), July 2022
  • Physical Evidence at the Fire Scene Course by CFITrainer.net, in conjunction with The International Association of Arson Investigators, Inc. (IAAI), July 2022
  • Critical Evaluation and Testing of Commonly Reported Accidental Causes by CFITrainer.net, in conjunction with The International Association of Arson Investigators, Inc. (IAAI), July 2022
  • How First Responders Impact The Fire Investigation by CFITrainer.net, in conjunction with The International Association of Arson Investigators, Inc. (IAAI), March 2022
  • Fire Investigator Scene Safety by CFITrainer.net, in conjunction with The International Association of Arson Investigators, Inc. (IAAI), March 2022
  • Fire Flow Analysis by CFITrainer.net, in conjunction with The International Association of Arson Investigators, Inc. (IAAI), March 2022
  • Documenting the Event Course by CFITrainer.net, in conjunction with The International Association of Arson Investigators, Inc. (IAAI), March 2022
  • Affiliation National Association of Fire Investigators - Company
  • Affiliation National Fire Protection Association - Company
  • Testing of various gas valves using X-Ray and gas flow tests.
  • Compressed natural gas and liquefied petroleum fuel gas fire and explosion testing and investigation.
  • The reaction of specific appliances to various fire origins within the appliance as well as exterior.
  • Research and testing fuel gas regulators.

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  • Employment Record
  • Education
  • Continuing Education
  • Professional Memberships
  • Research and Testing
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Blake M. Carlton

Blake M. Carlton

P.E., C.F.E.I.

Consulting Engineer

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Mechanical System Analysis, Structural Analysis Fires and Explosions, Fuel Gas Systems Workplace Accident & Safety Analysis

  • Bachelor of Science in Mechanical Engineering, Texas A&M University, 2013.
  • Primary areas of consultation include mechanical systems, HVAC, plumbing, and utility systems. Residential and commercial construction, plumbing, foundation, and roof inspections; water intrusion/damage and foundation failure/deflection analysis.
  • Experiences include detailed on-site analyses, repair scope, specification development, acceptance testing, validation, and equipment re-commissioning.
  • 2023-Present

    MCDOWELL OWENS ENGINEERING, INC

    Houston, Texas

    Consulting Engineer. Areas of primary interest include mechanical system and equipment failure analysis, commercial and residential construction, mechanical, electrical, plumbing (MEP) related losses and evaluation and analysis of workplace accidents. Premises liability related to slip/trip and fall accidents.

  • 2018-2023

    EFI GLOBAL

    Houston, Texas

    Senior Forensic Engineer. Primary interests included cases involving fatality and personal injury claims involving industrial equipment. Analysis of HVAC, plumbing systems, and components for commercial and residential structures; premises liability related to slip and fall accidents; mechanical failures of residential and commercial equipment to include plumbing leaks, appliance failures, HVAC failures; oil and gas equipment failure; material fracture (fractography) and corrosion failure analysis; commercial equipment asset valuation.

  • 2013-2018

    TECHNIPFMC

    Houston, Texas

    Production Engineer III. Responsible for concept design, final design, and fabrication reviews of new product tooling for offshore oil and gas and underwater piping involving analysis of weld failure, fastener shear, fastener tear-out, tension, compression, buckling, and bending; supervised risk and safety mitigation for annual high-risk projects and conducted root cause analysis investigations focusing on material properties and factor of safety calculations; issued protocols and conducted factory assembly and testing on equipment before offshore development. Assisted with drilling and fracking assembly operations.

  • 2012-2013

    MECH. ENG. DEPT. TEXAS A&M UNIVERSITY

    College Station, Texas

    Teaching Assistant. Led seminars regarding effective communication and development of leadership skills. Led weekly engineering practice presentation and evaluated student competency in professional presentations and technical report writing.

  • Summer-2012

    CATERPILLAR

    Houston, Texas

    Technical Marketing Intern. Programmed software for record entry and retention catered for ease of use. Created enhanced marketing presentations for natural gas service equipment catalog.

  • Summer-2011

    JP KENNY

    Houston, Texas

    Engineering Consulting Intern. Analyzed drafting documents for inconsistencies and recommended revisions to the document control department. Produced CAD drawings and 3D models pertaining to subsea processing equipment catalog.

  • Bachelor of Science, Mechanical Engineering
    Texas A&M University, College Station, Texas, 2013
  • Licensed Professional Engineer:

    • Alabama

      No. 39734

    • Arkansas

      No. 19891

    • Arizona

      No. 78442

    • Colorado

      No. 0062323

    • Florida

      No. 90075

    • Louisiana

      No. 43213

    • Mississippi

      No. 31217

    • New Mexico

      No. 28692

    • Oklahoma

      No. 32074

    • Texas

      No. 131172

    • Tennessee

      No. 129776

    • Kentucky

      No. 39518

    • Georgia

      No. 051600

  • Certified Fire and Explosion Investigator (C.F.E.I.)
    National Association of Fire Investigators
    2023 by examination
    Registration Number 26662-16195
  • American Society of Gas Engineers (ASGE)
    Certified Gas Engineer
    Registration No. 339
  • CXLT, Tribometer Slip Resistance Testing Certified
  • EPA Section 608, Safe Handling of Refrigerants Applicable
    Refrigerant Types: Universal
  • National Association of Fire Investigators (NAFI), Fire Investigation Training Program, 2023
  • Vale Advanced Roofing Certification, Vale Training, 2022
  • Electrical Engineering Concepts for the Non-Electrical Engineer, Ryan Malone, 2021
  • Corrosion Control and Tactics, Gerald Davis, 2021
  • Principles of Water Treatment, Ryan Malone, 2021
  • Practical Fractography, ASM International/ John Christie, 2020
  • CXLT Slip Resistance Testing Certification, Excel Tribometers, 2019, 2022
  • Air Conditioning and Refrigeration, TPC Training/ Ken Green, 2019
  • International Association of Arson Investigators (IAAI) – CFITTrainer.net
    • Investigating Motor Vehicle Fires, 2018
    • Motor Vehicles: The Engine and the Ignition, Electrical and Fuel Systems, 2018
    • Motor Vehicles: Transmission, Exhaust, Brake, and Accessory Systems, 2018
  • American Society for Mechanical Engineers
  • Texas Board of Professional Engineers
  • SAE International
  • International Association of Arson Investigators
  • National Association of Fire Investigators
  • National Fire Protection Association (Company Affiliation)

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  • Professional Summary
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  • Education
  • Registrations, Licenses & Certifications
  • Continuing Education
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Mohamed Elmenshawi

Mohamed Elmenshawi

P.E.

Consulting Engineer/Civil & Structural

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Residential, Commercial, and Industrial Structures, Foundation Inspections and Analysis, Roadway/Bridge Structural Design and Analysis

  • Bachelor of Science in Civil Engineering at the University of Houston, 2012.
  • Primary areas of consultation: Structural - Foundation & superstructures of steel, timber, and reinforced concrete structures (residential and commercial). Design and construction of residential and commercial structures, lifting devices, and rigging for single-point lifts of structures and equipment (up to 600 tons). Civil - Roads and bridges, earth retaining structures, storm drainage collection and drainage systems, sanitary drainage collection and treatment plants, water supply distribution and irrigation systems, and site work design including compliance for handicap access.
  • Extensive experience since 2012 in residential construction, home inspections, loss investigation and documentation. Additional experience in management and manipulation of various computer- based applications in finite element analysis, structural design, O&G Pipeline, hydrology, and AutoCAD design in various facets.
  • Over 11 years of structural analysis and design.
  • 2023-Present

    McDOWELL OWENS ENGINEERING, INC

    Houston, Texas

    Consulting Engineer. Performed investigations and analyses of structural failures. Conducted structural investigations for damage due to hurricanes, fire loss, tree impauts, tornadoes, earthquakes, and floods. Projects include foundations and structures of residential, commercial, and industrial buildings, roof structures, earth retaining structures, and construction shoring.

  • 2022 –2023

    PROPERTY CONDITION ASSESSMENTS (PCA LLC)

    Remote

    Structural Assessor. Performed structural condition assessments on residential, commercial, and industrial structures and offices as well as industrial properties. Investigated and assessed conditions of the grounds, building envelopes, framing, foundation for structural defects, root-cause of degradation, and recommended scope of repairs. Provided cost assessments for short-term and long-term maintenance based on compliance codes. Provided narratives and photo reports highlighting structural composition of the property and current conditions.

  • 2019 –2022

    ALFRED BENESCH & CO.

    Boston, MA

    Project Engineer. Prepared bridge load ratings involving superstructure load calculations using AASHTOWare and/or MDX for modeling and analysis, and compiling reports in accordance with MassDOT standards. Performed bridge inspections on various bridges and culverts. Conducted peer reviews for load rating calculations and inspection reports to verify accuracy.

  • 2018 –2019

    MASS CRANE & HOIST

    Tyngsboro, MA

    Project Manager/Structural Engineer. Supervised and performed structural design and detailing of crane system for fabrication and installation. Procured components of system (steel, hoist, electrification, hardware, equipment, trucking) and coordinated with scheduler, fabrication shop, installers, and customers. Consulted on technical drawings and specs and supported design execution in the construction field while assuring safety, quality, and compliance with design plans.

  • 2017 –2018

    KUWAIT TECHNICAL CONSULTING BUREAU (KTCB)

    Kuwait City, Kuwait

    Bridge/Structural Engineer. Worked on the engineering team to design and develop projects. Consulted with the client (Ministry of Public Works) and contractors to maintain schedules. Provided technical direction and interpretation of engineering drawings and specs using ASTM codes. Inspected civil and structural site works to ensure compliance and consulted at concrete and asphalt batching plants for quality and compliance testing.

  • 2015 –2016

    S&V ICF

    Houston, TX

    Project Engineer. Provided structural engineering design for commercial and residential buildings in accordance with the IBC, IRC, ACI, and other supporting codes. Reviewed analytical data for technical reports, facilitated project meetings between contractors and the firm, supported design execution in the construction field, and monitored and supervised contractors and foreman.

  • 2012 –2014

    DANNENBAUM ENGINEERING CORP.

    Houston, TX

    Bridge Engineer. Contributed to structural design of connector bridges for SH99 Grand Parkway and SH290 in Houston, Texas. Coordinated with the structural team to design beams, columns, and foundations in compliance with TxDOT regulations, AASHTO LRFD Bridge Design Specifications, and other supporting codes. Reviewed project plans and shop drawings for accuracy.

  • 2012 –2012

    SIGMA ENGINEERING SERVICES

    Houston, TX

    Intern/Associate Engineer. Supported various design projects for industrial contractors to meet the company’s standards of excellence. Projects included a 180 ft. high free-standing exhaust steel stack using ASME STS-1-2011 code, a concrete structure to support 5000kips lateral test load for a petrochemical testing facility in Houston, an 8ft. diameter, 19ft. deep concrete wet work for a new lift station in Fort Bend County, outside of Houston, Texas, and pipeline supports of various sizes.

  • Bachelor of Science in Civil Engineering - University of Houston, Houston, TX, 2012
  • Licensed Professional Engineer:

    • Massachusetts

      No. 55037

      (Active)

    • Texas

      No. 143917

      (Active)

    • Georgia

      No. PE050054

      (Active)

    • Pennsylvania

      No. PE094242

      (Active)

    • Louisiana

      No. 47774

      (Active)

    • Florida

      No. 96633

    • North Carolina

      No. 057208

  • NHI-130056: Safety Insp. of In-Service Bridges for Professional Engineers- 2021
  • Certified Associate in Project Management (CAPM)- Jan 2018
  • OSHA 10-Hour Course- Sept. 2017
  • Permit & Non-Permit Confined Space Entry (OSHA 29 CFR 1910.146)
  • Remote Pilot - Small unmanned aircraft system (XIII Limitations)
    • American Society of Civil Engineers (ASCE)
    • American Wood Council (AWC)
    • National Fire Protection Association (NFPA) (Company Affiliation)
    • Geotextile Tubes for Erosion Control, July 31, 2023
    • Geo-Structural Investigation of Existing Structures, March 23, 2023
    • Earth Retaining Structures, March 23, 2023
    • Design of Wood Lateral-Force Resisting Systems, March 23, 2023
    • Mass Timber Structures: Codes and Adoptions, August 25, 2022
    • A Brief Introduction to Wood Material Science, September 29, 2022
    • Cross Laminated Timber Shear Wall Example, November 17, 2022

    Overview

    • Professional Summary
    • Employment Record
    • Education
    • Registrations, Licenses & Certifications
    • Professional Memberships
    • Continuing Education

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