In Bowen v. E.I. duPont de Nemours & Co., Inc., read opinion here , the Delaware Supreme Court , in a opinion issued only a few days ago, upheld the exclusion by the trial court of experts who did not meet the Daubert test. Analyzing Daubert and Delaware Rule of Evidence 702 the court recognized that decisions to bar experts are often case dispositive. The court listed the applicable factors that the trial court needs to apply as a gatekeeper, as follows:
Consistent with Daubert, we apply a five-step test to determine the admissibility of scientific or technical expert testimony. The trial judge must determine whether:
(1) the witness is qualified as an expert by knowledge, skill experience, training or education; (2) the evidence is relevant; (3) the expert’s opinion is based upon information reasonably relied upon by experts in the particular field; (4) the expert testimony will assist the trier of fact to understand the evidence or to determine a fact in issue; and (5) the expert testimony will not create unfair prejudice or confuse or mislead the jury (citing Tolson v. State, 900 A.2d 639, 645 (Del. 2006)).
The party seeking to introduce the expert testimony bears the burden of establishing its admissibility by a preponderance of the evidence.