In Case You Were Wondering…Daubert Decisions in Divorce

In Case You Were Wondering…Daubert Decisions in Divorce

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), is a United States Supreme Court case determining the standard for admitting expert testimony in federal courts under Rule 702 of the Federal Rules of Evidence which provides (in part):

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to 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 an opinion or otherwise...”

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

aI The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

bI The testimony is based on sufficient facts or data;

cI The testimony is the product of reliable principles and methods; and

dI The expert has reliably applied the principles and methods to the facts of the case.

Daubert further provides that an expert opinion may only be admitted if:

1I the testimony is based upon sufficient facts or data;

2I the testimony is the product of reliable principles and methods; and

3I the witness has applied the principles and methods reliably to the facts of the case.

The “Daubert” standard or some version thereof has been adopted by approximately 30 states, some of which have limited the application to criminal cases. Following are a few representative cases from jurisdictions in which the admissibility of expert testimony was scrutinized under the “Daubert” standards.

strong>GIANNARIS V GIANNARIS, 960 So. 2d 462 – Miss: Supreme Court 2007

Facts of the Case: The parties were divorced in 1994, at which time Wife was awarded primary physical custody of the parties’ minor child with liberal visitation granted to Husband. Approximately one year later, Husband, a weather forecaster for the United States Navy, was transferred to San Diego and filed a complaint seeking primary physical custody of the child. Husband engaged a social worker whose formal training in interviewing children consisted of a five-week training course and one year of working with abused children at a mental health clinic. The social worker testified that she had done five or six interviews of children for the purpose of making custody recommendations. She further testified that her opinions were based on unrecorded sessions with the child and she did not seek independent verification of the truthfulness of the child’s allegations.

Trial Court Decision: The Chancery Court of Harrison County granted Husband’s motion finding, in part, that Wife’s refusal to communicate and cooperate with Husband constituted an adverse circumstance. Wife appealed the Chancery Court’s ruling to the Court of Appeals, which upheld the lower court ruling. Wife then appealed to the Mississippi Supreme Court arguing in part that the trial court failed to conduct a “Daubert” hearing before considering the testimony of the clinical social worker engaged by Husband.

Supreme Court Decision: The Supreme Court reversed the lower court rulings, finding that the trial court had abused its discretion in admitting the testimony of the social worker. The Court found that there was no evidence that the social worker’s opinion was based on sufficient data or was the “product of reliable principles or methods.” Although the chancellor had stated in his opinion that he found the social worker‘s opinion of insignificant weight, the Supreme Court held that the admission of the testimony was prejudicial to Wife and amounted to an abuse of discretion. Primary custody of the minor child was restored to Wife.

BUFKIN V BUFKIN, 259 SW 3d 343 – Tex: Court of Appeals, 5th District 2008

Facts of the Case: The parties entered into a premarital agreement (“Agreement”) in 1987 prior to their marriage. The Agreement provided, in part, that all property acquired by either party before the marriage and during the first five years of the marriage would remain that party’s separate property. After the fifth anniversary of the marriage, “all increases in kind or in value of property that is the product of either party shall become the community property of the parties.” The value of a ranch owned by Husband prior to the marriage is at issue in this appeal.

The parties were divorced in 2001 and the property division was reversed and remanded for reasons not relevant here. On remand, Husband engaged an appraiser to value his ranch as of the date of the marriage and the fifth anniversary date. During a hearing on the admissibility of the expert’s testimony, the appraiser admitted that he appraised the ranch as raw land and included a third party timber appraisal from 1996 to reflect the value of the timber on the land. The appraiser, a certified forester, further testified that he had never valued real estate that way before.

Trial Court Decision:After a hearing on the admissibility of testimony from Husband’s real estate expert, the trial court determined that the expert’s testimony was not reliable and thus, not admissible. Husband appealed the decision to the Court of Appeals.

Appellate Court Decision: The Court denied Husband’s appeal, finding that no evidence was presented regarding the reliability of the third party’s timber appraisal and Husband failed to prove the underlying data for his expert’s opinion was reliable. Thus, the trial court was within its discretion to exclude the testimony of Husband’s expert.

FRANKLIN V FRANKLIN, 928 So. 2d – La: Court of Appeals, 1st Circuit 2005

Facts of the Case:Pursuant to a judgment of divorce dated July 29, 2003, the parties were awarded joint custody of their two children with Wife designated as the domiciliary parent. Shortly thereafter, the Wife filed a petition for change of custody of the parties’ two children, requesting sole custody based on an allegation that the daughter had been abused by Husband.

Husband sought to have a polygraph examiner qualified as an expert who would testify that Husband had not abused the child based on the results of a polygraph he administered to Husband. Wife objected and a “Daubert” hearing was conducted to determine 1) if the proffered expert was qualified, and 2) if the polygraph met the reliability standards of Daubert.

During the hearing, the polygraph examiner testified that he had never been qualified as an expert in any court and that he was not aware of any scientific studies validating single issue polygraphs like the one he used in this case. Further, the examiner could cite no studies or publications validating his assumed 90% accuracy.

Trial Court Decision: Despite the lack of testimony regarding the validity or reliability of his methods, the trial court qualified the examiner as an expert and allowed him to testify about the polygraph test given to Husband. Wife’s petition for sole custody was denied and Husband was designated as the domiciliary parent with frequent visitation for Wife. Wife appealed the decision, challenging the admission of testimony concerning the results of the polygraph.

Appellate Court Decision: The Court reversed the trial court decision finding that admission of the polygraph examiner’s testimony was an abuse of discretion and remanded the case for a new trial. The Court did not address the admissibility of polygraph results based upon a proper showing of the Daubert requirements for reliability. Rather, the Court found that the expert’s proposed testimony in this case did not meet the Daubert requirements and that the finder of fact might give disproportionate weight to the polygraph as a means of determining credibility. In a concurring opinion, one of the jurists added that “because the inadmissible polygraph evidence has already tainted the fact finder in this matter, I find that it is inappropriate to remand this matter back to the same fact finder.

strong>VON HOHN V VON HOHN, 260 SW 3d 631 – Tex: Court of Appeals, 12th Dist. 2008

Facts of the Case:Husband was a partner in a patent law firm, the value of which was the primary issue in this trial. Wife engaged an expert to value the interest in the law firm. Husband then filed a motion to exclude the expert’s testimony and the trial court held a hearing to determine the admissibility of the testimony.

The expert testified that he had been performing business valuations for over 15 years. He also testified that he had never used information from patent cases in valuing a law firm, but had previously used the type of projections used in this valuation in valuing a contingency fee law practice. He also testified that he had valued the same law firm approximately five years earlier using the same methods.

Trial Court Decision: Following the “Daubert” hearing, the trial court allowed the testimony of Wife’s expert. Husband appealed, arguing that the trial court committed reversible error by failing to exclude the testimony of Wife’s valuation expert. Husband maintained, in part, that there was no evidence that the methodology used by Wife’s expert in valuing the business was used by other valuation experts and further, the methodology was unreliable and flawed.

Appellate Court Decision: The Court denied Husband’s appeal, finding that the expert had experience performing business valuations, had valued a partnership interest using the income approach, and had previously been qualified as an expert in Texas courts. Although he had never used information from a patent case in valuing a law firm, the specific issue in this case was valuation of a partner’s interest in a law firm, for which he had specialized knowledge, skill, experience, training, or education.

BIRO V BIRO, 2007 Ohio 3191 – Ohio: Court of Appeals, 11th Appellate Dist. 2007

Facts of the Case:The parties were married on February 14, 1987, and Wife filed for divorce on December 19, 2003. Prior to trial, Husband filed a motion in limine to preclude Wife from introducing the report or testimony of her financial expert on the ground that the report, which had not yet been received, was untimely. Following the Court’s denial of his motion, Husband challenged the expert’s qualifications to testify at trial.

Trial Court Decision: The court allowed the expert to testify citing his credentials as a CPA and certified valuation analyst with 19 years of experience. Further, the expert testified that he had performed 75 valuations and had been admitted as a business valuation expert in Ohio court. Husband appealed.

Appellate Court Decision: The decision of the trial court to admit the expert testimony was upheld on appeal. The Court of Appeals ruled that “any weakness in the factual underpinnings of expert testimony goes to the weight and or credibility of the testimony, rather than its admissibility.” The Court went on to say that in determining whether expert testimony is reliable, the focus must be on the reliability of the methods used to reach an opinion, not whether the conclusions are correct. Further, and of particular interest, the Court stated that to qualify as an expert, the witness need not be the best witness on the subject.

ROOT V ROOT, 65 p. 3d 41 – WYO: Supreme Court 2003

Facts of the Case:The parties were married in 1983. During the marriage, Wife obtained a medical degree and in 1993 purchased a pathology business for $30,000. The husband also worked at various times for the pathology business as secretary/treasurer, general business manager, and bookkeeper.

Both parties submitted expert testimony regarding the manner in which the pathology business should be appraised. The wife’s expert provided no opinion as to the specific value of the business; however, he did testify the value should be determined by adding the accounts receivable, discounted for monthly fluctuations and expenses, to the value of the hard assets. He contended there was no “blue sky” or good will because the business was wholly dependent on the wife’s medical expertise. The wife testified the hard assets were worth $30,000. Husband’s expert valued the business $394,772 using an income approach.

Trial Court Decision:The trial court determined the business was worth $50,000. Husband appealed, arguing that the trial court erred by undervaluing the pathology business and further, that Wife’s expert was not qualified to provide an expert opinion regarding the value of the business.

Appellate Court Decision: Husband’s appeal was denied and although Husband’s challenge to the expert testimony was denied because the issue had not been raised at trial, it is interesting to note that the Court chose to address the issue in its opinion.

The court found that the expert, an independent consultant who provided advice to a variety of medical concerns regarding the acquisition and sale of medical practices and physician recruitment, was qualified to provide expert testimony. Although the expert did not have a college degree, he had over 14 years of practical experience in the acquisition and operation of medical practices. “Given that evidence, we cannot conclude the trial court abused its discretion by permitting him to testify. Unless an expert witness is clearly unqualified, questions concerning the nature of his qualifications normally go to the weight accorded the witness’ testimony rather than the admissibility of his testimony.”


The state courts are divided on whether they will follow the Daubert standard. Of the various state courts that have decided to follow Daubert, virtually all have standards on expert testimony similar to federal Rule 702. Whether the state courts follow Daubert or not, virtually all courts recognize that specialized knowledge is often useful in helping the trier of fact understand the relevant factors involved in a particular case. Expert testimony continues to be a crucial component in complex litigation, making it particularly important to use experts who have the specific expertise called for in a specific case.