Daubert v. Merrell Dow Pharmaceuticals, Inc.: Redefining the Bases for Admissibility of Expert Scientific Testimony

Authors

Clifton T. Hutchinson, Hughes & Luce, L.L.P., Dallas, Tex.
Danny S. Ashby, Hughes & Luce, L.L.P., Dallas, Tex.

Abstract

Daubert v. Merrell Dow Pharmaceuticals, Inc. is not only, or even primarily, a case about the viability of Frye v. United States and "general acceptance" as the criterion for evaluating expert testimony. Principally, it is a case about the preconditions of Federal Rule of Evidence 702, the sole provision in the Federal Rules that authorizes the use of expert testimony. The question as framed by petitioners in the course of argument was whether trial courts may screen scientific expert testimony under any real test. The Supreme Court answered this question strongly in the affirmative.

Petitioners' recurring theme was that Rule 702 imposes only two requirements: first, a general determination in the case that the testimony is the type of evidence that will assist the jury; and, second, a determination that the witness is qualified as an expert. "Rule 702," they said, "merely declares that qualified experts can present opinions whenever the situation is a proper one for expert testimony." When asked by the Court during oral argument whether it was their "position that so long as an individual is an expert, whatever conclusion he arrives at on the basis of data that other experts consider relevant... must be accepted by the court" under Rule 702, petitioners frankly responded "Your Honor, yes."

This position, the Supreme Court held, contradicts the language, structure, and policies of Rule 702 because it omits a crucial additional requirement: that the testimony of each expert have an adequate foundation. By restricting expert testimony to "scientific, technical, or other specialized knowledge [that] will assist the trier of fact," Rule 702 demands that an expert's testimony be wellgrounded in the standards generally followed in his or her field for validating assertions of the type offered. From this the Court concluded that it is the fundamental duty of the federal courts under the Federal Rules to screen evidence for admissibility to ensure that it provides a rationally reliable basis for judgment. In the case of scientific evidence, this screening requires not only that expert opinions be relevant to the case, as petitioners freely recognized, but also, as petitioners all but ignored, that such opinions be based on scientifically valid reasoning and principles.

Unequivocally, then, Daubert rejected petitioners' test (which, in actuality, was no test at all) in favor of substantive and critical analysis of scientific testimony. The mere willingness of a qualified expert to testify to a proposition that may only marginally be called "scientific knowledge" is insufficient to meet this foundational requirement. Only by satisfying the various prerequisites of Rules 702, 703, and 403 may such testimony be admitted in evidence. Even then, the evidence may be insufficient to support a jury's verdict, thereby entitling the opposing party to a directed or summary judgment.

This Article considers the criteria that the Court said must govern the use of expert scientific testimony in the courtroom. Following a brief review of the various approaches of the federal courts to the admissibility of such evidence and the Supreme Court's approach to this issue, the Article focuses on the "scientific knowledge" inquiry of Rule 702 and the numerous factors that the Court indicated would bear on this inquiry. Then, the Article considers the "helpfulness" standard of Rule 702 and the Court's evidentiary concept of "fit," which is a related, but independent, prerequisite for admitting scientific testimony. The Article also discusses the role of Rules 703 and 403 in the evidentiary analysis of expert scientific testimony, as well as the sufficiency criteria that otherwise admissible expert testimony must satisfy. In sum, the Article offers the view that while no theory of admissibility of scientific testimony can eliminate all "battles of the experts," Daubert provides a workable framework for limiting the battle to disputes in which the application of well-founded contested theories reasonably may lead to different conclusions.

Keywords

Testimony, Legal Practice and Procedure, Evidence, Federal Rules of Evidence, Science and Technology Law, Law and Society

Disciplines

Evidence | Law | Law and Society | Science and Technology Law

Recommended Citation

Clifton T. Hutchinson & Danny S. Ashby, Daubert v. Merrell Dow Pharmaceuticals, Inc.: Redefining the Bases for Admissibility of Expert Scientific Testimony, 15 Cardozo L. Rev. 1875 (1994).
Available at: https://larc.cardozo.yu.edu/clr/vol15/iss6/6