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ABSTRACT
Since the Daubert v. Merrell Dow Pharmaceuticals, Inc. decision in 1993, plaintiffs and defendants have used two primary arguments in applying Daubert to expert witness testimony in real estate valuation cases: the use of a methodology and the qualification of an expert witness. This article examines cases involving the methodology used in real estate valuation situations and finds that although Daubert identifies four factors (theory testing, peer review and publication, known rate of error, and general acceptance) for the courts to consider, these factors have been interpreted differently in various courts. Several cases are summarized and the significance of different interpretations in the application of Daubert is noted.
The case of Daubert v. MerrellDowPharmaceuticals, Inc.1 was decided in 1995 and has since been referenced and relied on in numerous lawsuits. Prior to Daubert, the admissibility of expert testimony was decided under an interpretation of Rule 702 of the Federal Rules of Evidence, known as the Frye rule.2 Rule 702 determined qualified expert witnesses based on their knowledge, skill, experience, training, or education. The Frye rule examines testimony to determine its general acceptance in the scientific community.
Dauben, however, superseded the Fryenue in federal courts and many states. It places the court as a gatekeeper in evaluating the admissibility of testimony. Before the admission of expert testimony, the court must now consider whether the theory has or can be tested; if the theory has been subjected to peer review and publication; if there is a known rate of error; and the general acceptance of the technique in question. Since the Daubert decision, plaintiffs and defendants have used two primary arguments when applying Daubert to real estate testimony in valuation situations: the use of a methodology and the qualification of an expert witness.
The Daubert case and its progeny determine the admissibility of expert scientific and technical evidence in all court cases, including those that pertain to real estate expert witnesses. Thus, to fully understand the Daubert case's impact on real estate expert witnesses, it is necessary to examine how the courts have interpreted and applied it
Four years after the Daubert decision, Hoyt and Aalberts published an article that presented four court cases involving Daubert ana real estate valuation.3 In a subsequent article, pertaining...