Excerpt from "Daubert: The Most Influential Supreme Court Decision You've Never Heard Of"

The following is an excerpt from "Daubert: The Most Influential Supreme Court Ruling You've Never Heard Of," a publication of the Project on Scientific Knowledge and Public Policy, coordinated by the Tellus Institute (2003). Read the report in PDF format.

On June 28, 1993, the United States Supreme Court issued an opinion relating to how federal judges should decide whether to allow expert testimony into the courtroom. Prior to this, most federal and state court judges had been relying upon two standards to decide if expert testimony was admissible: relevance (if the testimony addressed a fact at issue in the case and if it would be helpful to the jury); and a 1923 ruling known as Frye, which held that the methods used by the expert in forming his scientific conclusions must be generally accepted within the expert community. Critics of Frye argued that it often excluded new but legitimate science that had not yet gained a consensus within the scientific community. Moreover they pointed out that science was not a “majority rules” endeavor. On the other hand, others argued that abandoning the Frye standard and relying merely on the relevance standard allowed in too much science that was poorly designed or not reliable – what some chose to call “junk science.”

The Supreme Court sought to clarify these standards in Daubert v. Merrell Dow Pharmaceuticals, Inc. by directing judges to act as “gatekeepers” in the courtroom. It instructed judges to examine the scientific method underlying expert evidence and to admit only that evidence that was both “relevant and reliable.” Two later cases, General Electric v. Joiner and Kumho Tire Co. v. Carmichael, expanded upon this opinion. In Joiner, the Supreme Court ruled that appellate courts should not overturn the admissibility decision of a trial court unless the trial court abused its discretion, an extremely difficult thing to show. Kumho clarified the Daubert ruling by finding that it should be applied to all expert testimony, including testimony based on experience, not merely that which relied upon science.

But what started as a well-intentioned attempt to ensure reliable and relevant evidentiary science has had troubling consequences. Over the past 10 years some judges, in our opinion, have routinely misinterpreted and broadened the reach of Daubert, which has become the latest and most effective tool used by tort defendants to protect themselves from product liability and personal injury cases. Polluters and manufacturers of dangerous products are successfully using Daubert to keep juries from hearing scientific or any other evidence against them.

In the aftermath of Daubert, not only are many legitimate scientists and their work being barred from the courtroom, but plaintiffs are being denied their day in court, unfairly in our view. Much of the evidence that forms the basis of a plaintiff ’s case, from the safety of drugs and consumer products to whether pollution has caused harm, is based on science. In many cases, pre-trial “Daubert hearings” exclude so much of the evidence upon which plaintiffs intend to rely that a given case cannot proceed.

Moreover, this process is largely shielded from public view. The Daubert hearing does not happen at the trial, and most judicial decisions on admissibility are not published. And because of Joiner, they are nearly impossible to overturn.

Following Daubert:

  • The percentage of expert testimony by scientists that was excluded from the courtroom rose significantly.
  • This rise in excluded testimony has led to an increase in successful motions for summary judgment, since, without expert testimony, there is often little left with which to proceed. The percentage of summary judgments granted post-Daubert more than doubled. Over 90 percent of these judgments came down against plaintiffs.
  • The expense of defending a Daubert challenge appears to be having a “chilling effect” upon plaintiffs, who don’t have the same resources as large corporations and often cannot afford to defend against aggressive attacks on their experts.
  • Scientists and physicians are likely to be increasingly reluctant to provide expert testimony in civil litigation cases because of the lengths to which defendants go to discredit them and their work.
  • Emboldened by their success in the courtroom, powerful interests are now trying to extend the reach of Daubert-like evidentiary standards to the regulatory arena, where they may affect the federal government’s ability to understand and act to reduce risk from hazardous exposures.
  • In contrast, because of the cost of mounting Daubert challenges, they are rarely brought in the criminal justice system, where life and liberty – rather than economic interests – are at stake. It is in this arena where the most meager rather than the most stringent scrutiny of scientific evidence is applied.

The Daubert Definition of Good Science
When the Supreme Court issued its opinion in Daubert, it suggested four criteria for determining whether science was reliable and, therefore, admissible:
1) is the evidence based on a testable theory or technique;
2) has the theory or technique been peer reviewed;
3) in the case of a particular technique, does it have a known error rate and standards controlling the techniques operation; and
4) is the underlying science generally accepted?

The Court cautioned that the list should not be regarded by judges as “a definitive checklist or test,” opening the door for judges to employ criteria of their own.

Two Supreme Court Justices voiced serious concerns about asking federal judges to take on the role of deciding what is good versus bad science, fearing that this was akin to asking judges to become “amateur scientists.” Notably, Chief Justice Rehnquist, joined by Justice Stevens, wrote in a dissenting opinion: “Questions arise simply from reading this part of the Court’s opinion, and countless more questions will surely arise when hundreds of district judges try to apply its teaching to particular offers of expert testimony.”

It isn’t just federal district judges who interpret these teachings, however. Though Daubert was based on an interpretation of the Federal Rules of Evidence, and intended for use by federal judges, roughly one-third of state courts (which routinely adopt Federal Rules of Evidence) have also adopted the Daubert criteria in determining the admissibility of expert testimony.

Some leading jurists, however, seem quite dismayed by the notion of judges attempting to determine the validity of scientific evidence using the criteria established in Daubert.

“…the Daubert opinion appears politically naïve about the ‘methods and procedures’ of both science and evidentiary admissibility,” wrote Arizona Supreme Court Chief Justice Stanley Feldman, in a case in which expert testimony had been excluded in a lower court. “Multi-factored, ‘flexible’ tests of the sort announced in Daubert are more likely to produce arbitrary results than they are to produce nuanced treatment of complex questions of admissibility.”

One result of Daubert is a battle over where product liability and toxic tort cases are tried. Plaintiffs prefer those state courts that are friendlier to their experts. Defendants on the other hand, try to remove these cases to federal court, where they have a better chance of having expert testimony excluded and winning summary
judgment.

In some cases, plaintiffs have even tried suing the doctor who prescribed the drug or the pharmacist who filled the prescription to keep the case in state court. Noted legal scholar and Brooklyn Law School Professor Margaret Berger explains that if one of the defendants lives in the same jurisdiction as the plaintiff, the action cannot be removed to federal court.

“Now, there is an effort by defendants to stop that [venue-based suits] by alleging fraud or collusion because the plaintiff never really intended to proceed against the doctor or pharmacists,” said Berger. “Defendants are asking that the case should be removable to federal court where it’s often much easier to get the plaintiff ’s experts excluded; because it’s in federal court that you are getting these opinions.”