Friday, August 04, 2006

Nebraska Supreme Court will consider Daubert challenges to expert testimony for retrial of arson/murder case when first trial took place before date of Nebraska Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001)decision even though Nebraska Supreme Court had on first appeal rejected the Defendant's ; Most of fire experts testimony allowed under Daubert standardsState of Nebraska, v. Davlin, (Davlin II) 272 Neb. 139 Filed August 4, 2006. No. S-05-547. The law-of-the-case doctrine does not bar consideration of the expert testimony issues even though the Supreme Court already ruled on the admissibility of the fire experts in Davlin I,. Because an expert's testimony and opinions may vary from one trial to the next, the law-of-the-case doctrine does not necessarily preclude a foundational challenge to an expert's testimony in a retrial. Furthermore Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), adopting the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993),ordered that Daubert apply prospectively for trials commencing on or after October 1, 2001. The Daubert/Schafersman standards were not applicable in Davlin's first trial which commenced in March 2000, Davlin I, 263 Neb. 283, 639 N.W.2d 631 (2002), but were applicable in the retrial which commenced in January 2005. The Court may consider a Defendant's Daubert/Schafersman challenge to the expert testimony presented at retrial but sustains the trial court's findings.

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