Forensic Dentistry, Second Edition

Jurisprudence and legal issues 385

use of this test—general acceptance—spread throughout the country with
the practical effect that each judge would decide, often based on the state-
ments of the expert himself or herself (or those from the opposing side), who
and what could or could not be heard. But without published guidelines as a
basis, the decision to hear or not hear an expert rested more in the mind of
the judge than in the veracity of the science. Over the years, rising dissatisfac-
tion with this standard culminated in the 1993 case Daubert v. Merrell Dow
Pharmaceuticals.^2 This U.S. Supreme Court decision established a four-part
test for expert testimony: (1) that the theory is testable (has it been tested?),
(2) that the theory has been peer reviewed (peer reviewing usually reduces
the chances of error in the theory), (3) the reliability and error rate (100%
reliability and zero error are not required, but the rates must be reported),
and (4) the extent of general acceptance by the scientific community. This
case enunciated the guidelines that formally establish the trial judge as the
“ gatekeeper” to determine the admissibility of scientific evidence. Over
the next several years two other cases refined the test for acceptance of an
expert’s testimony. The first, in 1997, General Electric v. Joiner, established the
principle that absent manifest error, the decision of the trial judge in his role
as gatekeeper to admit or not admit expert scientific testimony would not be
disturbed on appeal.^3 A later 1999 case established that all expert testimony
is subject to the Daubert rules.^4 The Federal Rules of Evidence, which apply
in all federal courts, state in Rule 702: “If scientific, technical or other spe-
cialized knowledge will assist the trier of fact to understand the evidence or
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 opinion
or ot her w ise if (1) t he testimony is based on sufficient facts or data, (2) t he tes-
timony is the product of reliable principles and methods, and (3) the witness
has applied the principles and methods reliably to the facts of the case.”^5 The
majority of states now incorporate similar rules regarding expert testimony,
although some cling to Frye or variations somewhere between the two.

16.3 Forensic Dentists and Civil Litigation

Much of the civil litigation in America is based on a legal concept called

tort law. There are other branches of civil law encompassing contracts, prop-

erty, wills and successions, trusts, divorce, and custody. A tort is defined as

a legal or civil wrong. Ordinarily, a legal wrong is handled as a civil matter

only. However, occasionally an intentional tort, such as an assault or battery,

can also become a criminal matter. In addition to intentional torts, there are

also negligent torts and strict liability torts. An accidental injury could be

a negligent tort. However, product liability cases involve strict liability tort

law. Unlike the criminal justice system, where charges are brought based on