Concurring Supreme Court of Alabama Justice Calls for the State to Apply the Daubery Standard to Non-Scientific Expert Evidence
Prior to 2011, Alabama determined the admissibility of expert evidence by applying the Frye test, which asks a judge to consider whether an expert technique or technology is “generally accepted” in the relevant expert community (e.g., whether latent fingerprint comparison is generally accepted in the biometric community). In 2011, Alabama cut bait with Frye and amended Alabama Rule of Evidence 702(b) so that it now reads as follows:
(b) In addition to the requirements in section (a), expert testimony based on a scientific theory, principle, methodology, or procedure is admissible only if:
(1) The testimony is based on sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.
In doing so, Alabama adopted the Daubert standard that requires judges to serve as gatekeepers and independently assess the reliability of expert evidence. But Alabama courts have held that a judge only needs to conduct a Daubert hearing if the expert evidence at issue is scientific in nature. And that has caused a concurring justice in MBN 500-1200 Buildings, LLC v. Alabama Department of Revenue, 2025 WL 224489 (Ala. 2025), to argue that Alabama should hold Daubert hearings even for expert evidence of the non-scientific variety.
In MBN, the owners of commercial office buildings challenged the assessments of the fair market values of those buildings. As Justice Cook of the Alabama Supreme Court wrote in a special concurrence,
One of the key arguments raised by MBN both during trial and in the present consolidated appeals is that the expert testimony presented by ADOR, explaining the methods used to calculate the values underlying the assessed ad valorem taxes, is unreliable.
This expert testimony was admitted without a Daubert hearing, which Alabama courts don’t require for non-scientific expert evidence. So, what is non-scientific expert evidence? Justice Cook cited this example from a prior Supreme Court of Alabama opinion (itself quoting the Eleventh Circuit):
“The distinction between scientific and non-scientific expert testimony is a critical one. By way of illustration, if one wanted to explain to a jury how a bumblebee is able to fly, an aeronautical engineer might be a helpful witness. Since flight principles have some universality, the expert could apply general principles to the case of the bumblebee. Conceivably, even if he had never seen a bumblebee, he still would be qualified to testify, as long as he was familiar with its component parts.”
“On the other hand, if one wanted to prove that bumblebees always take off into the wind, a beekeeper with no scientific training at all would be an acceptable witness if a proper foundation were laid for his conclusions. The foundation would not relate to his formal training, but to his firsthand observations. In other words, the beekeeper does not know any more about flight principles than the jurors, but he has seen a lot more bumblebees than they have.”
Justice Cook then added that
In the present cases, Cooley’s testimony addressing the methods used by the Shelby County Tax Commissioner’s Office to calculate and assess the values of commercial properties for ad valorem taxes is not based on her application of scientific principles or theories but is, instead, based on her training and experience as the chief appraiser. Thus, under current Alabama evidentiary practice, the Daubert standard would not have been applied to her testimony in this case. Instead, it appears to me to have been properly admitted under the lower standard of Rule 702(a).
After going through all the possible issues with the methodologies used in the case at hand, Justice Cook then argued for Alabama to require a Daubert hearing even for non-scientific expert evidence:
In the present cases, Cooley’s testimony addressing the methods used by the Shelby County Tax Commissioner’s Office to calculate and assess the values of commercial properties for ad valorem taxes is not based on her application of scientific principles or theories but is, instead, based on her training and experience as the chief appraiser. Thus, under current Alabama evidentiary practice, the Daubert standard would not have been applied to her testimony in this case. Instead, it appeIn my view, our citizens are entitled to the most accurate results by county tax-assessing officials and in the Alabama courts. Importantly, the Alabama economy works best when investors from Alabama and from across the nation are confident that they will receive predictable and accurate results in our courts. I thus make the above observations in the hope that the Legislature — and, perhaps, the Standing Committee on the Alabama Rules of Evidence — will consider whether Alabama should adopt the Daubert reliability standard for all expert testimony regardless of whether it is scientific in nature. I also make the above observations in the hope that ADOR considers the question of whether it should include REIT-owned properties and certain trust-owned properties in its tax-assessment calculations.
-CM