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Cardozo Law Review

Abstract

This Note maintains that in order for Rule 702 and the Daubert standard to have their intended effect, judges need more guidance and structure in how they approach scientific admissibility decisions. An analysis of how courts following Daubert currently address novel science, specifically in toxic tort cases where some members of the scientific community label causation evidence as junk science, supports this argument. This Note will focus on procedures courts have used to make gatekeeping decisions. From a study of these procedures, this Note will suggest a model framework that courts should employ to tackle novel science issues in mass tort litigation.

Part I of this Note discusses the development of the Daubert standard, efforts to use court-appointed experts, and pre-trial science tutorials that assist the court in executing its gatekeeping role. Part II addresses the limited capacity of judges to analyze complex scientific issues, along with the limitations and criticisms regarding the use of court-appoint experts and tutorials. Part III of this Note proposes a model procedure for judges to use in assessing the admissibility of expert testimony in mass toxic tort litigations. The model procedure draws from lessons learned through judges' varied uses of courtappointed experts and science tutorials. Judges have adapted to their gatekeeping role, but they have done so inconsistently and with varied success. The procedure recognizes the novel approaches judges have taken to Daubert issues, but it seeks to streamline those approaches to create a system that encourages efficiency and consistency in complex science cases.

Disciplines

Evidence | Health Law and Policy | Law | Science and Technology Law | Torts

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