Emerging trend, Daubert blurs with Frye

When Daubert Starts Looking Like Frye: Expert Witnessing in the Age of Emerging Healthcare Trends

Wayne Bennett, DC, DABCC, DABCO

In simpler times selecting an expert witness felt like shopping from a well-stocked shelf. You wanted Daubert credibility? No problem. Pick someone with peer-reviewed publications, established standards, and a CV thick enough to stop a door. Science had spoken, credentials were abundant …. the answer was obvious.

Then healthcare evolved.

Enter Trauma-Informed Care, telehealth expansion, and machine-readable file (MRF) reimbursement analysis—fields that are clinically relevant, regulated, and legally unavoidable, yet still young enough to lack the reassuring credentialing trail Daubert likes to see. Suddenly, the shelf is nearly bare and everyone is squinting at the label.

These issues are real, the disputes are live, and the courts still want an expert. But when the body of literature is thin, credentials are fragmented, and “standards” are still being argued about at conferences, demonstrating classic Daubert credibility becomes an exercise in creative explanation rather than box-checking.

At that point, something uncomfortable happens.

Daubert starts looking a lot like Frye.

Not because the court has changed its mind about science, but because in emerging arenas of contention there is often no settled science or clear jurisdictional language to point to. The expert’s job shifts from citing consensus to explaining why consensus doesn’t yet exist, why that absence doesn’t equal junk science, and what “evidence” is still just junk. Attorneys find themselves defending not just conclusions, but the legitimacy of the entire analytical framework.

Meanwhile, opposing counsel will inevitably locate some literature—often thin, tangential, or methodologically suspect—and insist that this, too, is “the science.” The real work for a competent expert is no longer choosing between good science and bad science, but between less bad science and more bad science, and then explaining—calmly, clearly, and repeatedly—why that distinction matters.

This blurring of lines creates risk on both sides. Attorneys want Daubert-safe experts; experts want defensible methodologies. But when innovation and a changing healthcare landscape outpace credentialing bodies, peer-reviewed science, and formal guidelines, everyone is operating in a gray zone where experience, regulatory exposure, and methodological rigor matter more than tidy labels.

The irony, of course, is that courts still need answers. Emerging healthcare models don’t wait for consensus before generating disputes, and litigation doesn’t pause until journals catch up. So attorneys and experts adapt—carefully—knowing that in these cases, the question isn’t whether Daubert applies, but how much explanation it will take to make Daubert recognizable.

In the end, the challenge isn’t so much that standards are absent as it is that they’re still being written—sometimes right there in the courtroom itself.