Daubert v. Merrell Dow Pharmaceuticals
Encyclopedia
Daubert v. Merrell Dow Pharmaceuticals, is a United States Supreme Court case determining the standard for admitting expert testimony in federal courts
. The Daubert Court held that the enactment of the Federal Rules of Evidence
implicitly overturned the Frye standard
; the standard that the Court articulated is referred to as the Daubert standard
.
, in a California state court, claiming that the drug Bendectin
had caused the birth defects. Merrell Dow removed the case to federal court, and then moved for summary judgment
because their expert submitted documents showing that no published scientific study demonstrated a link between Bendectin and birth defects. Daubert and Schuller submitted expert evidence of their own that suggested that Bendectin could cause birth defects. Daubert and Schuller's evidence, however, was based on in vitro
and in vivo
animal studies, pharmacological studies, and reanalysis of other published studies, and these methodologies had not yet gained acceptance within the general scientific community.
The district court granted summary judgment for Merrell Dow, and Daubert and Schuller appealed to the Ninth Circuit
. The Ninth Circuit found the district court correctly granted summary judgment because the plaintiffs' proffered evidence had not yet been accepted as a reliable technique by scientists who had had an opportunity to scrutinize and verify the methods used by those scientists. Furthermore, the Ninth Circuit was skeptical of the fact that the plaintiffs' evidence appeared to be generated in preparation for litigation. Without their proffered evidence, the Ninth Circuit doubted that the plaintiffs could prove at a trial that the Bendectin had, in fact, caused the birth defects about which they were complaining. The plaintiffs asked the Supreme Court to review the Ninth Circuit's decision, and it agreed to do so.
held that evidence could be admitted in court only if "the thing from which the deduction is made" is "sufficiently established to have gained general acceptance in the particular field in which it belongs." Frye dealt with a systolic blood pressure deception test, a "crude precursor" to the polygraph
. In 1923, this blood pressure test was not widely accepted among scientists, and so the Frye court ruled it could not be used in court. Over the years, scholars disputed the proper scope and application of the Frye test.
The plaintiffs successfully argued that after Congress adopted the Federal Rules of Evidence
in 1975, Frye was no longer the governing standard for admitting scientific evidence in trials held in federal court. The Supreme Court agreed and had already ruled that where common law rules conflicted with provisions of the Rules, the enactment of the Rules had the effect of supplanting the common law. Frye was certainly part of the federal common law of evidence because it was decided almost 50 years before the Rules were enacted. But the text of the Rules did not suggest that Congress intended to keep the Frye rule, and so the Court reasoned that Frye was no longer the rule.
Rule 702 of the Federal Rules of Evidence provides (in part):
The text of Rule 702 did not make admissibility of expert testimony depend on general acceptance, and there was no evidence that Congress intended to incorporate a general acceptance standard into Rule 702. "Given the Rules' permissive backdrop and their inclusion of a specific rule on expert testimony that does not mention 'general acceptance,' the assertion that the Rules somehow assimilated Frye is unconvincing. Frye made 'general acceptance' the exclusive test for admitting expert testimony. That austere standard, absent from, and incompatible with, the Federal Rules of Evidence, should not be applied in federal trials."
Second, the scientific knowledge must assist the trier of fact in understanding the evidence or determining a fact in issue in the case. The trier of fact is often either a jury or a judge; but other fact finders may exist within the contemplation of the federal rules of evidence. To be helpful to the trier of fact, there must be a "valid scientific connection to the pertinent inquiry as a prerequisite to admissibility." For example, although it is within the purview of scientific knowledge, knowing whether the moon was full on a given night does not typically assist the trier of fact in knowing whether a person was sane when he or she committed a given act.
Third, the Rules expressly provided that the judge would make the threshold determination regarding whether certain scientific knowledge would indeed assist the trier of fact in the manner contemplated by Rule 702. "This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." This preliminary assessment can turn on whether something has been tested, whether an idea has been subjected to scientific peer review or published in scientific journals, the rate of error involved in the technique, and even general acceptance, among other things. It focuses on methodology and principles, not the ultimate conclusions generated.
The Court stressed that the new standard under Rule 702 was rooted in the judicial process and intended to be distinct and separate from the search for scientific truth. "Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly. The scientific project is advanced by broad and wide-ranging consideration of a multitude of hypotheses, for those that are incorrect will eventually be shown to be so, and that in itself is an advance." Rule 702 was intended to resolve legal disputes and, thus, had to be interpreted in conjunction with other rules of evidence and with other legal means of ending those disputes.
Cross examination within the adversary process is adequate to help legal decision makers arrive at efficient ends to disputes. "We recognize that, in practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance that is struck by Rules of Evidence designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes."
" or "pseudoscience
", as well as new or experimental techniques and research that the decision might have been expected to deem admissibile.
The considerations in Daubert do not all have to be met for the evidence to be admitted. It is necessary only that the majority of the tests be substantially complied with.
The principle in Daubert was expanded in Kumho Tire Co. v. Carmichael
, where the evidence in question was from a technician and not a scientist. The technician was going to testify that the only possible cause of a tire blowout must have been a manufacturing defect, as he could not determine any other possible cause. The Court of Appeal had admitted the evidence on the assumption that Daubert did not apply to technical evidence, only scientific evidence. The Supreme Court reversed, saying that the standard in Daubert could apply to merely technical evidence, and that in this case, the evidence of the proposed expert was not sufficiently reliable.
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
. The Daubert Court held that the enactment of the Federal Rules of Evidence
Federal Rules of Evidence
The is a code of evidence law governing the admission of facts by which parties in the United States federal court system may prove their cases, both civil and criminal. The Rules were enacted in 1975, with subsequent amendments....
implicitly overturned the Frye standard
Frye Standard
The Frye standard, Frye test, or general acceptance test is a test to determine the admissibility of scientific evidence. It provides that expert opinion based on a scientific technique is admissible only where the technique is generally accepted as reliable in the relevant scientific community. In...
; the standard that the Court articulated is referred to as the Daubert standard
Daubert Standard
The Daubert standard is a rule of evidence regarding the admissibility of expert witnesses' testimony during United States federal legal proceedings. Pursuant to this standard, a party may raise a Daubert motion, which is a special case of motion in limine raised before or during trial to exclude...
.
Facts
Jason Daubert and Eric Schuller had been born with serious birth defects. They and their parents sued Merrell Dow Pharmaceuticals Inc., a subsidiary of Dow Chemical CompanyDow Chemical Company
The Dow Chemical Company is a multinational corporation headquartered in Midland, Michigan, United States. As of 2007, it is the second largest chemical manufacturer in the world by revenue and as of February 2009, the third-largest chemical company in the world by market capitalization .Dow...
, in a California state court, claiming that the drug Bendectin
Bendectin
Bendectin is a combination of pyridoxine and doxylamine prescribed to treat nausea and vomiting of pregnancy or morning sickness.-History:...
had caused the birth defects. Merrell Dow removed the case to federal court, and then moved for summary judgment
Summary judgment
In law, a summary judgment is a determination made by a court without a full trial. Such a judgment may be issued as to the merits of an entire case, or of specific issues in that case....
because their expert submitted documents showing that no published scientific study demonstrated a link between Bendectin and birth defects. Daubert and Schuller submitted expert evidence of their own that suggested that Bendectin could cause birth defects. Daubert and Schuller's evidence, however, was based on in vitro
In vitro
In vitro refers to studies in experimental biology that are conducted using components of an organism that have been isolated from their usual biological context in order to permit a more detailed or more convenient analysis than can be done with whole organisms. Colloquially, these experiments...
and in vivo
In vivo
In vivo is experimentation using a whole, living organism as opposed to a partial or dead organism, or an in vitro controlled environment. Animal testing and clinical trials are two forms of in vivo research...
animal studies, pharmacological studies, and reanalysis of other published studies, and these methodologies had not yet gained acceptance within the general scientific community.
The district court granted summary judgment for Merrell Dow, and Daubert and Schuller appealed to the Ninth Circuit
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
. The Ninth Circuit found the district court correctly granted summary judgment because the plaintiffs' proffered evidence had not yet been accepted as a reliable technique by scientists who had had an opportunity to scrutinize and verify the methods used by those scientists. Furthermore, the Ninth Circuit was skeptical of the fact that the plaintiffs' evidence appeared to be generated in preparation for litigation. Without their proffered evidence, the Ninth Circuit doubted that the plaintiffs could prove at a trial that the Bendectin had, in fact, caused the birth defects about which they were complaining. The plaintiffs asked the Supreme Court to review the Ninth Circuit's decision, and it agreed to do so.
Prior law
In a 1923 case, Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the D.C. CircuitUnited States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...
held that evidence could be admitted in court only if "the thing from which the deduction is made" is "sufficiently established to have gained general acceptance in the particular field in which it belongs." Frye dealt with a systolic blood pressure deception test, a "crude precursor" to the polygraph
Polygraph
A polygraph measures and records several physiological indices such as blood pressure, pulse, respiration, and skin conductivity while the subject is asked and answers a series of questions...
. In 1923, this blood pressure test was not widely accepted among scientists, and so the Frye court ruled it could not be used in court. Over the years, scholars disputed the proper scope and application of the Frye test.
The plaintiffs successfully argued that after Congress adopted the Federal Rules of Evidence
Federal Rules of Evidence
The is a code of evidence law governing the admission of facts by which parties in the United States federal court system may prove their cases, both civil and criminal. The Rules were enacted in 1975, with subsequent amendments....
in 1975, Frye was no longer the governing standard for admitting scientific evidence in trials held in federal court. The Supreme Court agreed and had already ruled that where common law rules conflicted with provisions of the Rules, the enactment of the Rules had the effect of supplanting the common law. Frye was certainly part of the federal common law of evidence because it was decided almost 50 years before the Rules were enacted. But the text of the Rules did not suggest that Congress intended to keep the Frye rule, and so the Court reasoned that Frye was no longer the rule.
Rule 702 of the Federal Rules of Evidence provides (in part):
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise...
The text of Rule 702 did not make admissibility of expert testimony depend on general acceptance, and there was no evidence that Congress intended to incorporate a general acceptance standard into Rule 702. "Given the Rules' permissive backdrop and their inclusion of a specific rule on expert testimony that does not mention 'general acceptance,' the assertion that the Rules somehow assimilated Frye is unconvincing. Frye made 'general acceptance' the exclusive test for admitting expert testimony. That austere standard, absent from, and incompatible with, the Federal Rules of Evidence, should not be applied in federal trials."
The standard governing expert testimony
Three key provisions of the Rules governed admission of expert testimony in court. First, scientific knowledge, meaning that the testimony must be scientific in nature and must be grounded in "knowledge." Of course, science does not claim to know anything with absolute certainty; science "represents a process for proposing and refining theoretical explanations about the world that are subject to further testing and refinement." The "scientific knowledge" contemplated by Rule 702 had to be arrived at by the scientific method.Second, the scientific knowledge must assist the trier of fact in understanding the evidence or determining a fact in issue in the case. The trier of fact is often either a jury or a judge; but other fact finders may exist within the contemplation of the federal rules of evidence. To be helpful to the trier of fact, there must be a "valid scientific connection to the pertinent inquiry as a prerequisite to admissibility." For example, although it is within the purview of scientific knowledge, knowing whether the moon was full on a given night does not typically assist the trier of fact in knowing whether a person was sane when he or she committed a given act.
Third, the Rules expressly provided that the judge would make the threshold determination regarding whether certain scientific knowledge would indeed assist the trier of fact in the manner contemplated by Rule 702. "This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." This preliminary assessment can turn on whether something has been tested, whether an idea has been subjected to scientific peer review or published in scientific journals, the rate of error involved in the technique, and even general acceptance, among other things. It focuses on methodology and principles, not the ultimate conclusions generated.
The Court stressed that the new standard under Rule 702 was rooted in the judicial process and intended to be distinct and separate from the search for scientific truth. "Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly. The scientific project is advanced by broad and wide-ranging consideration of a multitude of hypotheses, for those that are incorrect will eventually be shown to be so, and that in itself is an advance." Rule 702 was intended to resolve legal disputes and, thus, had to be interpreted in conjunction with other rules of evidence and with other legal means of ending those disputes.
Cross examination within the adversary process is adequate to help legal decision makers arrive at efficient ends to disputes. "We recognize that, in practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance that is struck by Rules of Evidence designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes."
Aftermath
After Daubert, it was expected that the range of scientific opinion evidence used in court would be expanded. However, courts have strictly applied the standards in Daubert, and it has generally been successful in excluding "junk scienceJunk science
Junk science is a term used in U.S. political and legal disputes that brands an advocate's claims about scientific data, research, or analyses as spurious. The term may convey a pejorative connotation that the advocate is driven by political, ideological, financial, or other unscientific...
" or "pseudoscience
Pseudoscience
Pseudoscience is a claim, belief, or practice which is presented as scientific, but which does not adhere to a valid scientific method, lacks supporting evidence or plausibility, cannot be reliably tested, or otherwise lacks scientific status...
", as well as new or experimental techniques and research that the decision might have been expected to deem admissibile.
The considerations in Daubert do not all have to be met for the evidence to be admitted. It is necessary only that the majority of the tests be substantially complied with.
The principle in Daubert was expanded in Kumho Tire Co. v. Carmichael
Kumho Tire Co. v. Carmichael
Kumho Tire Co. v. Carmichael, , is a United States Supreme Court case that applied the Daubert standard to expert testimony from non-scientists.-Facts of the case:...
, where the evidence in question was from a technician and not a scientist. The technician was going to testify that the only possible cause of a tire blowout must have been a manufacturing defect, as he could not determine any other possible cause. The Court of Appeal had admitted the evidence on the assumption that Daubert did not apply to technical evidence, only scientific evidence. The Supreme Court reversed, saying that the standard in Daubert could apply to merely technical evidence, and that in this case, the evidence of the proposed expert was not sufficiently reliable.
Pronunciation of Daubert
While not a matter of law, discussions, corrections, and recriminations on this point from time to time vex attorneys and others among whom the subject of this case arises. Michael H. Gottesman, Jason Daubert's attorney reports that Daubert and his family do not affect the French pronunciation, which would be sounded similar to "dough-bear" (doʊˈbɛər). Rather, they pronounce their family name in the same manner as Dow-Burt(ˈdaʊbərt). The popular use of the French pronunciation may have arisen from Gottesman refraining from correcting the justices during oral argument before the Supreme Court.See also
- BendectinBendectinBendectin is a combination of pyridoxine and doxylamine prescribed to treat nausea and vomiting of pregnancy or morning sickness.-History:...
- Daubert StandardDaubert StandardThe Daubert standard is a rule of evidence regarding the admissibility of expert witnesses' testimony during United States federal legal proceedings. Pursuant to this standard, a party may raise a Daubert motion, which is a special case of motion in limine raised before or during trial to exclude...
- Expert witnessExpert witnessAn expert witness, professional witness or judicial expert is a witness, who by virtue of education, training, skill, or experience, is believed to have expertise and specialised knowledge in a particular subject beyond that of the average person, sufficient that others may officially and legally...
- Kumho Tire Co. v. CarmichaelKumho Tire Co. v. CarmichaelKumho Tire Co. v. Carmichael, , is a United States Supreme Court case that applied the Daubert standard to expert testimony from non-scientists.-Facts of the case:...
- List of United States Supreme Court cases, volume 509
- List of United States Supreme Court cases
- Lists of United States Supreme Court cases by volume
- List of United States Supreme Court cases by the Rehnquist Court
External links
- Text of the opinion, findlaw.com
- Text of the opinion, LII, Cornell University
- http://www.atlanticlegal.org/daubert.html Amicus brief of Atlantic Legal FoundationAtlantic Legal FoundationEstablished in 1977, Atlantic Legal Foundation is a nonprofit, nonpartisan public interest law firm with a history of advocating for individual liberty, limited and efficient government, free enterprise, sound science in the courtroom and school choice...
in support of Merrell Dow] - Daubert Institute for Science & Law
- Daubert-The Most Influential Supreme Court Decision You've Never Heard of
- Project on Scientific Knowledge and Public Policy (SKAPP) website, a collection of original documents and commentary on the Daubert standard and the use of science in public policy