The authors review and note the limited reach of Daubert v. Merrell Dow Pharmaceuticals. They also address its implications for concerned non-lawyers

Field, Thomas G., Jr.

Keegan, Colleen M.

English

UNH Scholars' Repository

RISK: Health, Safety & Environment (1990-2002)Volume 4Number 4 RISK: Issues in Health & Safety Article 3September 1993Daubert's SignificanceThomas G. Field Jr.Professor Emeritus, University of New Hampshire School of LawColleen M. KeeganFollow this and additional works at: https://scholars.unh.edu/riskPart of the Evidence Commons, Food and Drug Law Commons, Medical JurisprudenceCommons, and the Pharmacology, Toxicology and Environmental Health CommonsThis Comment is brought to you for free and open access by the University of New Hampshire – School of Law at University of New HampshireScholars' Repository. It has been accepted for inclusion in RISK: Health, Safety & Environment (1990-2002) by an authorized editor of University ofNew Hampshire Scholars' Repository. For more information, please contact ellen.phillips@law.unh.edu.Repository CitationThomas G. Field Jr. & Colleen M. Keegan , Daubert's Significance, 4 RISK 283 (1993).Daubert's SignificanceThomas G. Field, Jr. & Colleen M. Keegan*The U.S. Supreme Court recently decided Daubert, possibly themost important case to involve scientific evidence in seventy years.1That case has received 2 and continues to receive3 much attention.However, it is easy to overestimate its importance and difficult to knowits implications - particularly for engineers, physicians and scientists.BackgroundThe earlier case widely used to determine whether expert testimonyshould be considered at trial, and was so used by lower courts inDaubert,4 was Frye. That case had held:5[W]hile courts will go a long way in admitting experttestimony deduced from a well-recognized scientificprinciple or discovery, the thing from which the deductionis made must be sufficiently established to have gainedgeneral acceptance in the particular field in which it belongs.In Daubert, plaintiffs sought recovery for serious birth defectsallegedly suffered because two boys' mothers had used defendant'santi-nausea drug. Defendant moved for summary judgment6 based onan expert's affidavit that:7* Mr. Field is Professor of Law and Ms. Keegan is candidate for the J.D., both atFranklin Pierce Law Center.1 Daubert v. Merrell Dow Pharmaceuticals (Daubert), 61 U.S.L.W 4805 (U.S.June 29, 1993).2 Id., at 4810 (Rehnquist, J., dissenting) (twenty-two briefs were filed by othersthan parties). One was filed by the Carnegie Commission on Science, Technology, andGovernment, author of a March, 1993 report entitled SCIENCE AND TECHNOLOGY INJUDICIAL DECISION MAKING: CREATING OPPORTUNITIES AND MEETING CHALLENGES,id at 82, n. 17.3 See, e.g., Kenneth R. Foster, David E. Bernstein & Peter W. Huber, Scienceand the Toxic Tort, 261 SCIENE 1509 (1993).4 See, e.g., Daubert, 61 U.S.L.W. at 4807.5 Frye v. U.S. (Frye), 293 F. 1013, 1014 (D.C. Cir. 1923) (emphasis added).6 Summary judgment is proper if a trial is not needed to resolve issues of fact.4 RISK - Issues in Health & Safety 283 [Fall 1993]he had reviewed all the literature... [and] concluded thatmaternal use of Bendectin... has not been shown to be a riskfactor for human birth defects.Based on Frye, evidence to the contrary was ruled inadmissiblebecause it had not been peer reviewed. After the trial court granteddefendant's motion, the Court of Appeals affirmed. Ultimately theSupreme Court vacated the judgment and refranded for furtherproceedings. 8The Court's OpinionsWriting for the majority, Justice Blackmun observed:9The merits of the Frye test have been much debated, andscholarship on its proper scope and application is legion.Petitioners' primary attack, however, is not on the contentbut on the continuing authority of the rule. They contend thatthe Frye test was superseded by the adoption of the FederalRules of Evidence. We agree.He then quoted Rule 402 of the Federal Rules of Evidence: 10 "Allrelevant evidence is admissible, except as otherwise provided....Evidence which is not relevant is not admissible." Mentioning that suchrules supersede earlier law except to the extent that the latter may help tounderstand them, he also quoted Rule 702 as most pertinent. 11If scientific, technical, or other specialized knowledgewill assist the trier of fact to understand the evidence or todetermine a fact in issue, a witness qualified as an expert byknowledge, skill, experience, training, or education, maytestify thereto in the form of an opinion or otherwise.Justice Blackmun then stated that the "austere standard" representedby Frye, "absent from and incompatible with the Federal Rules ofEvidence, should not be applied in federal trials." 12 Yet, he began thenext section of his opinion by stating: 137 Daubert, 61 U.S.L.W. at 4806.8 Id. (more detailed procedural history).9 Id. at 4807.10 Id.I1 Id.12 Id. at 4808.Field & Keegan: Daubert's Significance 285That the Frye test was displaced... does not mean,however, that the Rules themselves place no limits on theadmissibility of purportedly scientific evidence. Nor is thetrial judge disabled from screening such evidence. To thecontrary, under the Rules the trial judge must ensure that anyand all scientific testimony or evidence admitted is not onlyrelevant, but reliable.In favor of liberal admissibility, Justice Blackmun noted that"scientists do not assert that they know what is immutably 'true' - theyare committed to searching for new, temporary theories to explain, asbest they can, phenomena ' 14 and that science "represents a processfor proposing and refining theoretical explanations about the world thatare subject to further testing and refinement." 15 Thus, judges make a"preliminary assessment of whether the reasoning or methodologyunderlying the testimony is scientifically valid and of whether thatreasoning or methodology properly can be applied to the facts inissue." 16 Jurors determine the credibility of what survives.Finally, to answer Frye proponents, Justice Blackmun stated:17We conclude by briefly addressing what appear to betwo underlying concerns.... Respondent expressesapprehension that abandonment of "general acceptance"...will result in a "free-for-all" in which befuddled juries areconfounded by absurd and irrational pseudoscientificassertions. In this regard respondent seems to us to beoverly pessimistic about the capabilities of the jury, and ofthe adversary system generally. Vigorous cross-examin-ation, presentation of contrary evidence, and careful instruc-tion on the burden of proof are the traditional and appropriatemeans of attacking shaky but admissible evidence.Only with regard to factors judges might use in screening evidencedid Justice Rehnquist dissent.18 He was disturbed by a statement that"the criterion of the scientific status of a theory is its falsifiability, or13 Id.14 Id. (quoting the amicus brief for Nicholas Bloemberger et al.).15 Id. (quoting the amicus brief for the American Association for the Advancementof Science and the National Academy of Sciences).16 Id. at 4809.17 Id.18 Id. at 4810 (he was joined only by Justice Stevens).4 RISK - Issues in Health & Safety 283 [Fall 1993]refutability, or testability," 19 and wrote, e.g., that, while he has greatrespect for federal judges, "I am at a loss to know what is meant when itis said that the scientific status of a theory depends on its 'falsifiability,'and I suspect some of them will be, too."20Assuming the Demise of FryeThe limited reach of Daubert must be appreciated. Most tort orcriminal cases that might use scientific evidence are governed by statelaw, and the Supreme Court's interpretation of federal rules ofevidence, in contrast with its cases decided under the U.S. Constitution,binds neither state courts nor legislatures. In short, whether statesfollow Daubert remains to be seen.Without discussing such matters, one article has assumed thegeneral demise of Frye and issued what seems to be a call to arms.With a cautionary, but obscure, reference to antitrust law, it suggeststhat professional technical societies should generate codes that "addressdirectly or indirectly the problems of eccentric and unreliabletestimony."2 1Assuming that muzzling or ostracizing mavericks and quacks couldor would work as intended, valuable resources might nevertheless bedirected elsewhere. It seems more productive in the short term formembers of such societies to direct their efforts toward developing andtesting materials useful for helping judges and juries distinguish sciencefrom pseudoscience. 22 Indeed, if all technically trained people were,over the longer term, to actively champion deeper and broader scienceliteracy, we would have far less need for concerns dismissed at the endof Daubert, and society as a whole would generally be better off.19 Id. at4811.20 Id.21 Foster et al., supra note 3, at 1614.22 An unusually solid step in that direction is represented by THOMAS GILOVICH,HOW WE KNOW WHAT ISN'T So: THE FALLiBiLrrY OF REASON IN EVERYDAY LIFE(1991), reviewed at 3 RISK 179 (1992).

Daubert\u27s Significance

https://scholars.unh.edu/cgi/viewcontent.cgi?article=1151&amp;context=risk

Daubert\u27s Significance

Abstract

Similar works

Full text

Available Versions

UNH Scholars' Repository