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Cases using phrasing similar to:
"The final factor which may be considered is the extent to which the technique relies on the subjective interpretation of the expert."
Given the degree of congruence of Brown and Daubert, we find the aspects of the Daubert decision discussed above to be persuasive, and we adopt them. Faced with a proffer of expert scientific testimony, an Oregon trial court, in performing its vital role as "gatekeeper" pursuant to OEC 104(1), should, therefore, find Daubert instructive. ... 680*680 In Daubert, the Supreme Court pointed out that, in assessing a proffer of expert scientific testimony under FRE 702, a trial court should also be mindful of other applicable evidentiary rules, such as FRE 703, 706, and 403.
In Brown, this court abandoned special tests for the admissibility of scientific evidence in favor of resolving the problem by relying on traditional evidence law as codified in the Oregon Evidence Code (OEC), specifically OEC 401 (relevance), OEC 702 (opinions of experts), and OEC 403 (exclusion of relevant evidence on ground of prejudice, confusion or undue delay). ... Both parties' experts testified that scientists conducting DNA research agree that the PCR method accurately and reliably replicates small samples of DNA. Gerdes, defendant's expert witness, testified that he had no problem with the validity of the PCR-based DNA tests.
Several arguments are usually advanced to support the use of the general acceptance test: that it establishes a method for insuring the reliability of scientific evidence; that it establishes a degree of uniformity of decision; that it eliminates hearings on the validity of scientific techniques; and that it insures that at least a "minimal reserve" of experts will be available to evaluate the technique's use in any given case. ... Somewhere in this twilight zone the evidential force of the principle must be recognized, and while 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.
A number of experts testified that nonalcohol induced jerk nystagmus caused by disease or brain damage occurs in three to four percent of the population, although it is generally nonsymmetrical (one eye only), whereas alcohol-induced nystagmus is the same in both eyes. ... Typically, scientific evidence is presented by an expert witness who can explain data or test results and, if necessary, the scientific principles that are said to give the evidence its reliability or accuracy.
In determining whether evidence is scientific, we also determine whether it "possesses significantly increased potential to influence the trier of fact as [a] `scientific' assertion * * * [especially] where the proffered expert scientific testimony is innovative, nontraditional, unconventional, controversial, or close to the frontier of understanding." ... Each of those disciplines has been involved in the study of alcohol-induced nystagmus.") In addition to drug and alcohol researchers and pharmacologists, the fields which have contributed the most to the development of the protocol, we conclude that the relevant scientific community includes physicians, toxicologists, and vision experts, each of whose fields have studied the protocol extensively.
In Kennedy v. Eden Advanced, Pest Technologies, 222 Or.App. 431, 193 P.3d 1030 (2008), the trial court had excluded expert testimony proffered by the plaintiff to establish that he had developed multiple chemical sensitivity from mercury in his dental filings and had been injured as the result of exposure to a pesticide defendant had wrongfully applied to his property. ... For example, in Kennedy, 222 Or.App. 431, 193 P.3d 1030, the defendant had put on extensive evidence at the OEC 104 hearing showing that the plaintiff's proffered expert and his diagnosis and methodology had been rejected by the mainstream medical community and his testimony excluded by numerous courts.
As relevant to this appeal, the state argued that key parts of each expert's testimony amounted to scientific evidence and that, under the admissibility requirements for scientific evidence set out in State v. Brown, 297 Or 404, 687 P2d 751 (1984), and State v. O'Key, 321 Or 285, 899 P2d 663 (1995), their testimony would have been inadmissible in petitioner's criminal trial because it lacked valid scientific foundation. ... see also Cuevas, 263 Or App at 110 (expert witness's testimony not scientific where it was "explicitly framed in terms of [the expert's] own career, training, and experience," and "did not refer to studies, research, scholarly literature, or anything else that would cause a jury to infer that her testimony was based on more than her personal experience").
Other jurisdictions that require the expert to have sufficient facts to accurately plot a defendant's BAC placement on the BAC curve include New Mexico, State v. Downey, 145 N.M. 232, 239-40, 195 P.3d 1244, 1251-52 (2008); and Nevada, State v. Armstrong, ___ Nev. ___, 267 P.3d 777, ___ (2011) (reasoning that the expert's lack of knowledge about whether the defendant was absorbing or eliminating alcohol at the time of the blood draw created too great a danger of unfair prejudice to defendant). ... Marcum v. Adventist Health System/West, 345 Or. 237, 244-45, 193 P.3d 1 (2008) (explaining that "the fundamental question" is the "scientific validity of the general propositions utilized by the expert" (emphasis added;
In that case, the court drew a distinction between scientific evidence and other specialized knowledge that requires expert testimony, stating that, although "it is difficult to set a more definitive boundary between `scientific' evidence and `technical or other specialized knowledge,'" such a distinction exists. ... In Marrington, the court held that an expert's testimony regarding a child's delay in reporting sexual abuse would be perceived as scientific evidence by a trier of fact, and thus required a foundational showing of scientific validity before its admissibility.