Daubert changed how courts weigh science. The 2023 FRE 702 amendment rewrote the gatekeeping burden without changing the test's name — and most practitioners haven't caught up.
0.7s
Analysis time
32 yr
Precedent age
1
Rule amendment found
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01 — Analysis
Real-time citation scanning
MikeCheck reads your expert witness motion, extracts every citation, and checks each against live legal databases — including federal rule amendments that changed the gatekeeping burden.
United States District Court
Southern District of New York
Defendant moves to exclude plaintiff's expert under
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)
and
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923),
which require that expert testimony be scientifically reliable.
II. LEGAL STANDARD
Under
Fed. R. Evid. 702 [pre-2023],
the district court acts as gatekeeper. This role was confirmed in
General Electric Co. v. Joiner, 522 U.S. 136 (1997)
and extended to all expert testimony in
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
III. ARGUMENT
The expert's methodology fails the "generally accepted in the relevant scientific community" standard required under Daubert and is therefore inadmissible.
Waiting
0.0s
1 Parsing citations...
2 Querying treatment history...
3 Verifying quote accuracy...
4 Checking rule amendments...
5 Analyzing circuit precedent...
6 Generating risk assessment...
Risk Level
ATTENTION
2 citations inapplicable or outdated
1Inapplicable
1Outdated
3Good law
02 — Findings
What MikeCheck found
5
Citations analyzed
1
Inapplicable
1
Outdated
3
Good law
⚡ 0.7s
⚠ Requires immediate attention
Frye v. United States
● Inapplicable
293 F. 1013 (D.C. Cir. 1923) · D.C. Circuit
⚠ Brief cites Frye alongside Daubert in federal court — Daubert (1993) explicitly replaced the Frye "general acceptance" test in federal proceedings. Frye still controls in ~15 state courts, but this is a federal action. Citing both creates a contradictory standard.
superseded in federal courtsinapplicable jurisdictioncontradicts daubertstate-court standard
97% confidence
WHY THIS MATTERS
Daubert explicitly replaced Frye in federal court in 1993. Frye controls in roughly 15 states, but this is a federal action. Citing both creates a contradictory standard — Frye's "general acceptance" test and Daubert's four-factor inquiry are mutually exclusive frameworks.
RECOMMENDED ACTION
Remove Frye entirely. The full federal expert admissibility analysis runs through Daubert plus the December 2023 FRE 702 amendments. If you need a state-court fallback, address it separately in a footnote.
⚡ Outdated — rule amended
FRE 702 [pre-2023 citation]
⚡ Outdated
Fed. R. Evid. 702 · Amended December 1, 2023
⚡ Rule amended Dec. 1, 2023: proponent must now demonstrate by a preponderance that the expert's opinion "reflects a reliable application" of the principles. Pre-2023 citations understate the gatekeeping burden now squarely on the proponent.
rule amended 2023preponderance standard addedburden shifted to proponent
89% confidence
WHY THIS MATTERS
The December 1, 2023 amendments added an explicit preponderance-of-the-evidence standard: the proponent must now affirmatively demonstrate that the expert's opinion reflects a reliable application of reliable principles. Pre-2023 citations understate this burden and may signal to the court that counsel is unaware of the current rule.
RECOMMENDED ACTION
Cite FRE 702 as amended December 1, 2023 and use the preponderance language explicitly in your motion. Structure your proffer to address each amended element: qualifications, sufficient facts/data, reliable principles, and reliable application.
✓ 3 citations confirmed as good law
✓ Good law
Daubert v. Merrell Dow Pharmaceuticals
✓ Good Law
509 U.S. 579 (1993) · Supreme Court
foundational gatekeeping testfollowed4-factor frameworkreaffirmed by kumho
99% confidence
WHY IT'S SAFE
All four Daubert factors remain active law: testability, peer review and publication, known or potential error rate, and general acceptance in the relevant scientific community. The 2023 FRE 702 amendments supplement Daubert, not replace it — courts apply both. Kumho extended Daubert's gatekeeping to all expert testimony, technical and experience-based alike.
HOW TO USE IT
Walk through each Daubert factor methodically for the challenged expert. Structure your brief so the court can make the preponderance finding required by amended FRE 702 on each factor individually. A well-organized Daubert challenge survives Joiner's abuse-of-discretion review on appeal.
Kumho extended Daubert's gatekeeping obligation to all expert testimony — not just scientists. Engineers, accident reconstructionists, physicians, accountants, and experience-based experts are all subject to the same reliability inquiry. Courts have no discretion to skip Daubert for non-scientific experts.
HOW TO USE IT
Cite Kumho when the challenged expert is not a traditional bench scientist. Many Daubert challenges fail because counsel cites only Daubert, and opposing counsel argues it applies only to science. Kumho closes that escape route. Pair with amended FRE 702 for the preponderance standard.
General Electric Co. v. Joiner
✓ Good Law
522 U.S. 136 (1997) · Supreme Court
abuse of discretion reviewfollowedcorrectly cited
97% confidence
WHY IT'S SAFE
Joiner established abuse-of-discretion appellate review for Daubert rulings — meaning a strong district court record is largely insulated from reversal. Joiner also permits exclusion when the analytical gap between the expert's data and conclusion is too great, even if each step of the methodology is sound.
HOW TO USE IT
Build the most detailed Daubert record possible at the district court level — Joiner's deferential review makes that record dispositive on appeal. Quote Joiner's "analytical gap" language directly when the expert's reasoning leaps from disputed data to sweeping conclusions without methodological justification.
03 — Citation Network
The Daubert web
32 years of refinement, expansion, and one rule amendment that shifted the burden. MikeCheck maps the full citation network — showing which nodes strengthen the gatekeeping framework and which have been superseded.
Anchor (subject)
Extends / Applies
Codified (amended 2023)
Superseded
Criminal application
04 — Jurisdiction Intelligence
Seven circuits. One standard. Zero agreement.
The "analytical gap" doctrine — how large a gap between methodology and conclusions triggers exclusion — varies dramatically. MikeCheck surfaces the split and tells you which forum is most favorable.
7Circuits analyzed
DirectSplit type
LowSCOTUS review likelihood
"Analytical Gap"Issue
← Strict gap enforcement (exclude)Liberal admission (allow) →
7th Cir.
80%
Strict
D.C. Cir.
72%
Strict
1st Cir.
65%
Moderate
4th Cir.
55%
Moderate
9th Cir.
60%
Liberal
5th Cir.
65%
Permissive
11th Cir.
Mixed
SCOTUS Review Probability
Low
Daubert itself is settled. The analytical gap doctrine is left to circuit discretion — SCOTUS is unlikely to revisit the underlying framework despite persistent inconsistency.
7th Circuit (Posner) strictest on analytical gap · 5th Circuit most permissive
05 — Quote Verification
Every word matters
The brief appended the Frye "generally accepted" standard — the very test Daubert replaced. This misquote introduces the wrong legal framework into a gatekeeping motion, potentially undermining the entire argument.
✗ As written in expert witness motion
"Under Daubert, the proponent must show the expert's testimony is based on sufficient facts or data, the testimony is the product of reliable principles and methods,
and the methodology is generally accepted in the relevant scientific community."
Attributed to: Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993)
✓ Actual Daubert standard (509 U.S. at 593–594)
"...the Rules of Evidence — especially Rule 702 — do assign to the trial judge the task of ensuring that an expert's testimony both rests on a sufficient factual basis and is the product of reliable principles and methods... the inquiry envisioned by Rule 702 is a flexible one."
Daubert v. Merrell Dow Pharms., 509 U.S. 579, 593–594 (1993)
0%
Similarity score
The appended phrase "generally accepted in the relevant scientific community" is the Frye standard that Daubert explicitly rejected as the sole test. General acceptance is one Daubert factor, not a requirement — this misquote introduces a legally superseded standard.
06 — Treatment History
Thirty-two years. One amendment that changed everything.
Kumho (1999) was the last time Daubert got stronger — expanding gatekeeping from science to all expert testimony. The 2023 FRE 702 amendment shifted the burden of proof to proponents without changing Daubert's name.
Positive treatment
Negative treatment
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