The Daubert standard, a primer for pain specialists.

Abstract

“If the law has made you a witness, remain a man of science; you have no victim to avenge, no guilty or innocent person to convict, ruin or save. You must bear testimony within the limits of science”[1]. Dr. P.C.H. Brouardel 19th Century French medico-legalist Pain specialists are being asked to participate in medico-legal matters at an increasing rate. A recent survey revealed that 72% of pain clinicians have engaged in medico-legal work at some level within the last year, with 24% of those clinicians being called to court to provide testimony [2]. Despite this volume of medico-legal activity, professional societies have offered minimal guidance with respect to the issue of standards for medico-legal work. With particular reference to standards for scientific testimony, federal and many state courts have demanded greater accountability. The change began in 1993 with the landmark decision, Daubert v. Merrell Dow Pharmaceuticals, Inc. , where the U.S. Supreme Court announced new standards for the admissibility of expert testimony [3]. This article addresses the importance of Daubert and its progeny to pain specialists engaging in medico-legal activity. Concerns regarding the standards of the admissibility of expert testimony have persisted for many years. In 1923, the Appeals Court of the District of Columbia addressed the admissibility of expert testimony in Frye v. United States [4]. This federal case established the “ Frye test,” or the “general acceptance” test for the admission of expert testimony. It was adopted in all federal courts and in most state courts. Under Frye , expert testimony was permitted where the court found that the scientific principle of the underlying testimony was “sufficiently established to have gained general acceptance in the particular field in which it belongs.” In 1975, the Federal Rules of Evidence were adopted for use at …