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\\jciprod01\productn\N\NDL\89-1\NDL102.txt Until approximately thirty years ago, expert witnesses hired by parties to litigation in the United States could testify almost without limit about anyrelevant issue within the scope of their expertise.1 Beginning in the mid-1980s, federal law rapidly and radically evolved until by 2000 all expert testi-mony needed to pass a reliability test before it could be deemed admissible.2Much of this evolution took place in toxic tort cases, in the context ofbroader debate about the efficiency and justice of toxic tort litigation.3 Con-troversy surrounded mass tort litigation involving the morning sickness drugBendectin, silicone gel breast implants, and the herbicide Agent Orange,among other products and substances.4  2013 David E. Bernstein. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, solong as each copy identifies the author, provides a citation to the Notre Dame Law Review,and includes this provision in the copyright notice.
George Mason University Foundation Professor of Law, George Mason University School of Law. Prof. Bernstein thanks Michael Green, David Kaye, Nathan Schachtman,and two anonymous reviewers for their helpful comments. Generous funding for thisArticle was provided by the Law and Economics Center at the George Mason UniversitySchool of Law.
See infra notes 27–9 and accompanying text.
See infra notes 50–9 and accompanying text.
Dozens of treatises and law review articles have been written about toxic tort litiga- tion and attendant controversies. For a sampling of books on the subject, see, e.g., CARL F.
CRANOR, REGULATING TOXIC SUBSTANCES (1993) [hereinafter CRANOR, REGULATING]; CARLF. CRANOR, TOXIC TORTS (2006) [hereinafter CRANOR, TOXIC TORTS]; KENNETH R. FOSTER &PETER W. HUBER, JUDGING SCIENCE (1999); KENNETH FOSTER ET AL., PHANTOM RISK: SCIEN- TIFIC INFERENCE AND THE LAW (1993); JONATHAN HARR, A CIVIL ACTION (1995); PETER W.
HUBER, GALILEO’S REVENGE (1991); SHEILA JASANOFF, SCIENCE AT THE BAR (1995).
For books discussing some of these mass torts and the evidentiary issues they presented, see MARCIA ANGEL, SCIENCE ON TRIAL (1996); MICHAEL D. GREEN, BENDECTIN AND BIRTH DEFECTS (1996); JOSEPH SANDERS, BENDECTIN ON TRIAL (1998); PETER H.
SCHUCK, AGENT ORANGE ON TRIAL (1986); see generally Victor E. Schwartz & Cary Silverman, The Draining of Daubert and the Recidivism of Junk Science in Federal and State Courts, 35 HOF- STRA L. REV. 217, 224 (2006) (“It is not a coincidence that Daubert coincided with theemergence of toxic torts and the burgeoning use of experts in civil litigation.”).
\\jciprod01\productn\N\NDL\89-1\NDL102.txt Many courts ultimately determined that much of this litigation relied on causation theories that were not supported by sound scientific evidence.
This led to judicial rulings restricting the admissibility of expert testimony,which in turn created sufficient uncertainty and controversy to provokeSupreme Court intervention.5 In a period of six years, the Supreme Courtissued the so-called Daubert trilogy of opinions—Daubert v. Merrell DowPharmaceuticals, Inc.,6 General Electric Co. v. Joiner,7 and Kumho Tire Co. v. Car-michael8—each of which tightened the standards for the admissibility ofexpert testimony.9 In 2000, an amendment to Federal Rule of Evidence 702codified a test that allows experts to testify only when their opinions meet astringent reliability test.10 The profound changes to the traditional laissez-faire law of expert testi- mony provoked resistance from some federal judges who favored more lib-eral rules of admissibility. These judges rejected the early precedentsexcluding expert testimony from toxic torts cases of the late 1980s,11 applied Daubert narrowly in the mid-1990s,12 and, in the late 1990s, exploited loop- holes and ambiguities in Joiner and Kumho Tire to admit questionable experttestimony.13 All of these actions, while broadly contrary to the trajectory ofexpert evidence law, were within the bounds of a reasonable interpretation ofthe extant law.
Judicial resistance should have withered away, however, after the 2000 amendment to Federal Rule of Evidence 702. The rule provides that experttestimony that would otherwise be helpful to the jury is admissible only when(1) the testimony is based upon sufficient facts or data, (2) the testimony isthe product of reliable principles and methods, and (3) the witness hasapplied the principles and methods reliably to the facts of the case.14 To get a sense of the dramatic shift amended Rule 702 represents, just a decade before it went into effect no American jurisdiction applied such strictadmissibility criteria. Most federal courts, recognizing their place in thescheme of things,15 have acquiesced to the new regime. There has, however, See infra notes 7–81 and accompanying text.
See infra notes 82–139 and accompanying text.
See infra notes 27–81 and accompanying text.
See infra notes 82–107 and accompanying text.
See infra notes 108–136 and accompanying text.
Cf. Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1316 (9th Cir. 1995) (“Our responsibility, then, unless we badly misread the Supreme Court’s opinion, is to resolvedisputes among respected, well-credentialed scientists about matters squarely within theirexpertise, in areas where there is no scientific consensus as to what is and what is not ‘goodscience,’ and occasionally to reject such expert testimony because it was not ‘derived by thescientific method.’ Mindful of our position in the hierarchy of the federal judiciary, wetake a deep breath and proceed with this heady task.”).
\\jciprod01\productn\N\NDL\89-1\NDL102.txt j u d i c i a l r e s i s t a n c e t o t h e D A U B E R T r e v o l u t i o n been an extraordinary undercurrent of rebellion by a minority of federaljudges who implicitly object to the radical changes16 wrought by the “Daubertrevolution.” These judges ignore the text of Rule 702, and instead rely onlenient precedents that predate (and conflict with) not only the text ofamended Rule 702, but also with some or all of the Daubert trilogy.17 The most prominent example of such judicial truculence is the First Cir- cuit’s 2011 opinion in Milward v. Acuity Specialty Products Group, Inc.18 In Mil-ward, the First Circuit reversed as an abuse of discretion a district court’sruling excluding causation evidence in a toxic tort case.19 In doing so, theappellate court ignored Rule 702, disregarded the Supreme Court’s opinionin Joiner, relied on obsolete precedents, misunderstood the underlying ratio-nale for exclusionary rules for expert testimony, misapplied basic scientificconcepts, and credulously endorsed “weight of the evidence” as a valid scien-tific methodology.20 Not surprisingly, plaintiffs’ lawyers have greeted Milward with great enthusiasm, treating the opinion as a jurisprudential Moses that will part theRule 702 Sea and lead them to the Promised Land of pre-Daubert admissibil-ity rules.21 Defense lawyers, meanwhile, have been aghast.22 The Supreme See David L. Faigman, The Daubert Revolution and the Birth of Modernity: Managing Scientific Evidence in the Age of Science, 46 U.C. DAVIS L. REV. 893, 895 (2013) (describingthese changes as “revolutionary”).
See infra notes 147–222 and accompanying text.
639 F.3d 11 (1st Cir. 2011). Milward has provoked a great deal of commentary, both favorable and unfavorable. See, e.g., 3 DAVID L. FAIGMAN ET AL., MODERN SCIENTIFIC EVI- DENCE § 29:6, at 781 (2010-2011 ed. 2010); DAVID H. KAYE ET AL., THE NEW WIGMORE: ATREATISE ON EVIDENCE—EXPERT EVIDENCE § 10.5.1 (Supp. 2012); Steve C. Gold, The“Reshapement” of the False Negative Asymmetry in Toxic Tort Causation, 37 WM. MITCHELL L.
REV. 1507, 1580 (2011) (suggesting that Milward holds the “promise of reshaping toxic tortcausation law”); Michael D. Green, Introduction: The Third Restatement of Torts in a CrystalBall, 37 WM. MITCHELL L. REV. 993, 1010 n.53 (2011) (describing Milward as “[o]ne of themost significant toxic tort causation cases in recent memory”); Carl Cranor, Milward v.
Acuity Specialty Products: How the First Circuit Opened Courthouse Doors for Wronged Parties toPresent Wider Range of Scientific Evidence, CPR BLOG (July 25, 2011), http://www.progressiver-eform.org/CPRBlog.cfm?idBlog=616EE094-D602-ED68-85FD84E7EB0A212E; William A.
Ruskin, Daubert on the Defense?, TOXIC TORT LITIG. BLOG (June 6, 2012), http://www.toxictortlitigationblog.com/tags/milward-v-acuity-specialty-pro.
See infra notes 198–220 and accompanying text.
See Steve Baughman Jensen, Reframing the Daubert Issue in Toxic Tort Cases, TRIAL, Feb. 2013, at 46; Symposium Considers “Weight of the Evidence” Approach, TRIAL, Sept. 2012, at50.
See Eric Lasker, Manning the Daubert Gate: A Defense Primer in Response to Milward v.
Acuity Specialty Products, 79 DEF. COUNS. J. 128, 128 (2012); James F. Rogers, James Shel-son & Jessalyn H. Zeigler, Changes in the Reference Manual on Scientific Evidence (Third Edi-tion), 80 DEF. COUNS. J. 287, 293–96 (2013); Barnes & Thornberg LLP, Rejecting Milward: A“Weight of the Evidence” Methodology Is No Methodology at All, NAT’L L. REV. (July 30, 2012),http://www.natlawreview.com/article/rejecting-milward-weight-evidence-methodology-no-methodology-all; Julie A. Brennan, Milward v. Acuity Specialty Products: The “Weight of theEvidence” Necessitates Supreme Court Review of First Circuit’s Decision, DRITODAY (March 8, \\jciprod01\productn\N\NDL\89-1\NDL102.txt Court refused to review Milward,23 so it remains good law in the First Circuit,requiring district court judges to admit speculative causation testimony. Mil-ward also has the potential to influence the law in other circuits and in statecourts.24 This Article reviews the history of the evolution of the rules for the admissibility of expert testimony since the 1980s, the revolutionary nature ofwhat ultimately emerged, and the consistent efforts by recalcitrant judges tostop or roll back the changes, even after Rule 702 was amended to explicitlyincorporate a strict interpretation of those changes.
Part I reviews the law of expert testimony through the Supreme Court’s Daubert decision. Critics had charged for decades that the adversarial system was a failure with regard to expert testimony. Parties to litigation, theyargued, often presented expert testimony of dubious validity because it sup-ported their positions, while lay juries were incapable of discerning whichside had the better case. But it took the rise of toxic tort litigation based onquestionable causation theories and the attendant threat to multi-billion dol-lar industries to provoke a meaningful response from the courts—a suddenand dramatic shift toward stricter admissibility standards.
Part II describes the Daubert trilogy and the emergence of amended Rule 702. A pattern emerged of the Supreme Court attempting to strengthen therules governing expert testimony, some lower courts resisting, and the Courtresponding by issuing a new opinion clarifying the courts’ new “gatekeeping”responsibilities. Eventually, an amendment to Federal Rule of Evidence 702codified the Daubert trilogy, and did so with language that removed ambigui-ties and loopholes that had been exploited by judges who had been inclinedto try to evade the Court’s rulings.
Nevertheless, as Part III describes, some federal judges have continued to apply significantly more lenient standards for expert testimony than Rule702 permits. They do so by ignoring the language of Rule 702, and instead 2012), http://dritoday.org/feature.aspx?id=295; Nathan A. Schachtman, Milward— Unhinging the Courthouse Door to Dubious Scientific Evidence, SCHACHTMANLAW.COM (Sept. 2, 2011, 8:13 AM), http://schachtmanlaw.com/milward-unhinging-the-courthouse-door-to-dubious-scientific-evidence; Eric Swan, Milward and the First Circuit’s Weight-of-the-EvidenceApproach, DRITODAY (Sept. 11, 2012), http://dritoday.org/feature.aspx?id=420.
See U.S. Steel Corp. v. Milward, 132 S. Ct. 1002 (2012).
Indeed, it already has. See Kuhn v. Wyeth, Inc., 686 F.3d 618, 625 (8th Cir. 2012) (“[T]rial courts are not empowered ‘to determine which of several competing scientifictheories has the best provenance.’ ” (quoting Milward, 639 F.3d at 15)); In re Fosamax(Alendronate Sodium) Prods. Liab. Litig., Nos. 11–5304, 08–08, 2013 WL 1558690, at *4(D.N.J. April 10, 2013) (citing only Milward in support of its statement that the “Defendantis free to address these issues on cross-examination, but Defendant’s concerns do not pro-hibit Dr. Cornell from testifying as an expert because he is qualified and the methodologyhe used is sufficiently reliable”); Johns v. Bayer Corp., No. 09cv1935 AJB (DHB), 2013 WL1498965, at *21 (S.D. Cal. Apr. 10, 2013) (citing only Milward in explaining why it wasdenying a defense motion to exclude expert testimony); In re Chantix (Varenicline) Prods.
Liab. Litig., 889 F. Supp. 2d 1272, 1300 (N.D. Ala. 2012) (relying on Milward in assertingthat any testimony on which reasonable scientists can disagree is admissible).
\\jciprod01\productn\N\NDL\89-1\NDL102.txt j u d i c i a l r e s i s t a n c e t o t h e D A U B E R T r e v o l u t i o n relying on precedents from a bygone era. The First Circuit’s Milward opin-ion, described in detail in Part III, demonstrates many errors and fallaciescommon to judges who have chosen to resist the Daubert revolution.
The underlying issue tying the history and present controversy over the admissibility of evidence in toxic tort litigation is a dispute over the underly-ing rationale for having special rules for the admissibility of expert testimony.
Judges who favor more liberal rules for admissibility believe that the rules aremeant to address only the problem of “junk science”—scientific testimonythat not only falls outside the scientific mainstream, but does so in the face ofwell-accepted contrary evidence.25 More restrictive judges, by contrast, are addressing the broader problem of “adversarial bias” that results from our legal system allowing the parties tochoose their own experts. Parties to litigation have a natural inclination tochoose experts whose views match their theory of the case, even if thoseexperts are outliers or hired guns. Rule 702 tries to limit this problem byinsisting that experts show an objectively verifiable basis for their testimony, sothat the trier of fact is not in the position of relying on the mere ipse dixit ofan expert chosen solely because his views are consistent with the partisanposition of a party to litigation.26 This Article concludes by discussing some of the factors that have led some federal judges to defy Rule 702. The author contends that theSupreme Court should take an appropriate opportunity to crack down onsuch judicial rebellion for two reasons. First, Rule 702 is the law of the land,and federal judges are obligated to enforce it regardless of their personalviews on what expert testimony should be admissible. Second, Rule 702 rep-resents a constructive effort to confront the problem of adversarial bias whileretaining the basic contours of the broader adversarial process.
THE LAW OF EXPERT TESTIMONY THROUGH DAUBERT Before Daubert, American courts generally applied a very forgiving test when considering the admissibility of expert testimony. Courts required onlythat an expert be at least marginally qualified to testify on the subject athand, and that his testimony be relevant to an issue in the case.27 The onlysignificant limitation was that the expert’s testimony had to be “beyond theken of the jury.”28 See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 153 (1997) (Stevens, J., concurring in part and dissenting in part) (arguing that expert testimony was admissible because it wasn’t“junk science” (internal quotation marks omitted)).
See id. at 143 (majority opinion).
See KAYE ET AL., supra note 18, § 2.1 (describing the traditional rules for the admissi- Id. § 2.1.1 (internal quotation marks omitted). The main exception was that “many jurisdictions applied the general acceptance test of Frye v. United States to scientific testi-mony, mostly in criminal cases.” Id. § 1.2 (footnote omitted). Contrary to myth, however, Frye was not traditionally a significant barrier to expert testimony. See David E. Bernstein, Frye, Frye Again: The Past, Present, and Future of the General Acceptance Test, 41 JURIMETRICS J.
\\jciprod01\productn\N\NDL\89-1\NDL102.txt Even this restriction on expert testimony gradually withered. Many courts ruled that any potentially helpful expert testimony was admissible.29Any flaws in an expert’s testimony were issues of weight, not admissibility. Tothe extent there were problems with an expert’s methodology or reasoning,opposing counsel’s only recourse was to try to alert the trier of fact to theseproblems at trial through cross-examination.30 Federal Rule of Evidence702, enacted in 1975 and eventually adopted by most states, did away with the“beyond the ken of the jury” test in favor of a helpfulness test.31 These very liberal admissibility rules coexisted with deep suspicion of expert testimony.32 Critics charged that the incentive structure facing liti-gants and the experts themselves made the prevalence of biased, one-sidedexpert testimony inevitable.33 The underlying problem critics identified isthat attorneys seeking expert witnesses do not, and have no incentive to, pur-sue expertise wherever it leads. Rather, they search for an expert willing tosupport the litigant’s position.34 Expert testimony in the United States is 385, 394–95 (2001) (noting that the civil cases applying Frye were limited largely to pater-nity tests and techniques more often used in criminal investigations); Jennifer L. Mnookin, Expert Evidence, Partisanship, and Epistemic Competence, 73 BROOK. L. REV. 1009, 1016 (2008) (“Through 1970, [Frye] was cited only fifty-eight times, and the bulk of those cases involvedthe lie detector, the same technology at issue in Frye.”). Even accounting for the fact thatsome “general acceptance” cases did not cite Frye, the general acceptance test was appliedsparingly.
See KAYE ET AL., supra note 18, § 2.2.2.
Original Rule 702 provided: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, awitness qualified as an expert by knowledge, skill, experience, training, or education, maytestify thereto in the form of an opinion or otherwise . . . .” 4 JACK B. WEINSTEIN & MAR- GARET A. BERGER, WEINSTEIN’S FEDERAL EVIDENCE § 702App.01 (Joseph M. McLaughlin ed.,Matthew Bender 2d ed. 2013). Despite what seems to be rather clear language, somecourts continued to nevertheless apply the “beyond the ken” test.
See KAYE ET AL., supra note 18, § 2.1.
See, e.g., Samuel R. Gross, Expert Evidence, 1991 WIS. L. REV. 1113, 1132 (“The prob- lem is professional partisanship. Experts whose incomes depend on testimony must learnto satisfy the consumers who buy that testimony; those who do not will not get hired.”).
See KAYE ET AL., supra note 18, § 1.3.1 (“Perhaps the most frequent criticism of experts was that they too often became partisans, the hired mouthpieces for the parties’points of view instead of the objective spokesmen for scientific truth.”).
For examples, see Lucilius A. Emery, Medical Expert Evidence, 39 AM. L. REV. 481, 488 (1905) (stating that partisanship is “the most prolific cause of the disrepute in which medi-cal evidence is held”); William L. Foster, Expert Testimony,—Prevalent Complaints and Pro-posed Remedies, 11 HARV. L. REV. 169, 171 (1897) (reporting that complaints of “bias”against experts are frequent); Henry Wollman, “Physicians—Expert Witnesses.” “SomeReforms.”, 17 MEDICO-LEG. J. 20, 28 (1899) (“The public believes that expert testimony is ahired, a purchased commodity, and that the number of experts on each side is measuredby the size of the purse of the respective sides. That it is just as easy to obtain the sameexpert on one side as on the other, if you only ‘have the price.’ That the expert has noconscientious scruples about the side he is on. That he doesn’t think about the side, onlythe money.”). As Susan Haack puts it, attorneys are not interested in inquiry, but in advo- \\jciprod01\productn\N\NDL\89-1\NDL102.txt j u d i c i a l r e s i s t a n c e t o t h e D A U B E R T r e v o l u t i o n therefore subject to massive adversarial biasbias that arises because expertsare hired to advance the cause of one party to an adversarial proceeding.35 Critics identified three distinct types of adversarial bias: (1) conscious bias, which occurs when an expert deliberately tailors evidence to support aclient, (2) unconscious bias, which occurs when the expert does not inten-tionally mislead the court, but is influenced by psychological attachment tohis “side,” and (3) selection bias, which results from litigants choosing astheir expert witnesses persons whose views are known to support the litigants’position.36 So in some cases attorneys would deploy “hired guns,”37 inothers, especially in the forensic context, they would find “team players,”38and, perhaps most frequently, they would simply select from the supply ofavailable and honest experts those who had sincere views on the issue athand that happened to coincide with what the attorney needed them to sayto advance his client’s case.
Many reformers argued that the appropriate remedy to adversarial bias (combined with inexpert juries) was increased reliance on court-appointed,nonpartisan experts.39 Learned Hand, writing in the Harvard Law Review in1901, asked, “[H]ow can the jury judge between two statements each cacy. See Susan Haack, What’s Wrong with Litigation-Driven Science? An Essay in Legal Episte-mology, 38 SETON HALL L. REV. 1053, 1070 (2008).
See David E. Bernstein, Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the Daubert Revolution, 93 IOWA L. REV. 451, 456–57 (2008) (discussing adversarial bias).
Id. at 454–56. These forms of bias have been recognized since at least Abinger v. Ashton, 17 L.R. Eq. 358, 373–75 (Ch. 1873).
L. Timothy Perrin, Expert Witness Testimony: Back to the Future, 29 U. RICH. L. REV.
1389, 1389 (1995); see also Olympia Equip. Leasing Co. v. W. Union Tel. Co., 797 F.2d 370,382 (7th Cir. 1986) (“[E]xpert[s] . . . are ‘often the mere paid advocates or partisans ofthose who employ and pay them, as much so as the attorneys who conduct the suit. Thereis hardly anything, not palpably absurd on its face, that cannot now be proved by some so-called “experts.”’ ” (quoting Keegan v. Minneapolis & St. L. R. Co., 78 N.W. 965, 966(Minn. 1899)); see also E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549, 553(Tex. 1995) (“[T]here are some experts who ‘are more than willing to proffer opinions ofdubious value for the proper fee.’ ” (quoting 2 STEVEN GOODE ET AL., TEXAS PRACTICE:GUIDE TO THE TEXAS RULES OF EVIDENCE: CIVIL AND CRIMINAL § 702.2, at 17 (2d ed.
1993))); Dan L. Burk, When Scientists Act Like Lawyers: The Problem of Adversary Science, 33JURIMETRICS J. 363, 368–70 (1993) (discussing the causes of “adversary science” in thecourts).
See DAVID H. KAYE, THE DOUBLE HELIX AND THE LAW OF EVIDENCE 68 (2010); see Gross, supra note 33, at 1139 (noting that the process of preparing witnesses “pushes the expert to identify with the lawyers on her side and to become a partisan member of thelitigation team”); Roger Koppl, How to Improve Forensic Science, 20 EUR. J.L. & ECON. 255,256 (2005); Peter J. Neufeld, The (Near) Irrelevance of Daubert to Criminal Justice and SomeSuggestions for Reform, 95 AM. J. PUB. HEALTH (SUPP. I) S107, S111 (2005); D. Michael Risin-ger et al., The Daubert/Kumho Implications of Observer Effects in Forensic Science: HiddenProblems of Expectation and Suggestion, 90 CAL. L. REV. 1, 27–30 (2002).
The most famous commentary on point was Learned Hand, Historical and Practical Considerations Regarding Expert Testimony, 15 HARV. L. REV. 40, 56–57 (1901); see also Emery, supra note 34, at 492–93; G.A. Endlich, Proposed Changes in the Law of Expert Testimony, 32 AM. L. REV. 851, 853–54 (1898); Clemens Herschel, Services of Experts in the Conduct of Judi- \\jciprod01\productn\N\NDL\89-1\NDL102.txt founded upon an experience confessedly foreign in kind to their own? It isjust because [jurors] are incompetent for such a task that the expert is neces-sary at all.”40 But despite recurring suggestions that the American legal sys-tem limit or even eliminate expert witnesses selected by parties to litigation,41court-appointed experts were and remain rare.42 For decades, the American legal system soldiered on with adversarial experts subject to forgiving admissibility rules. The system was shaken out ofits complacency by the increased use of scientific evidence in criminal casesstarting in the early 1970s.43 Faced with novel forensic techniques such asvoiceprint analysis, hair analysis, and so on, courts increasingly adopted andapplied the Frye general acceptance test, named after a 1923 decision involv-ing primitive lie detectors, to such evidence.44 Some federal courts—eitherthinking themselves constrained by the Federal Rules of Evidence to eschew cial Inquiries, 21 AM. L. REV. 571, 572 (1887); Emory Washburn, Testimony of Experts, 1 AM.
L. REV. 45, 61–62 (1867).
Hand, supra note 39, at 54. For a modern reiteration of Hand’s question, see Scott Brewer, Scientific Expert Testimony and Intellectual Due Process, 107 YALE L.J. 1535, 1552–53(1998) (“[I]f a judge or a jury does not have the requisite scientific training, how can thatjudge or jury make a warranted choice between competing ‘vigorously cross-examined’claims by putative experts in, say, medicine, mathematics, chemistry, or biology?”).
For numerous examples of recurring suggestions for the elimination of adversarial experts, see Edward K. Cheng, Same Old, Same Old: Scientific Evidence Past and Present, 104MICH. L. REV. 1387, 1393–96 (2006). See generally KAYE ET AL., supra note 18, § 11.2 (“[F]rom the later part of the nineteenth century to the present, the dominant proposedsolution to the problems of adversarial experts has been to call for the use of non-adver-sarial experts, in order to create a nonpartisan source of expert knowledge.”); see alsoGross, supra note 33, at 1188 (describing the use of non-partisan experts as “[t]he most Several recent articles favor court-appointed experts, at least in some contexts. See, e.g., Sofia Adrogue & Alan Ratliff, The Independent Expert Evolution: From the “Path of LeastResistance” to the “Road Less Traveled?, 34 TEX. TECH L. REV. 843, 882–97 (2003); David E.
Bernstein, The Breast Implant Fiasco, 87 CAL. L. REV. 457, 486–510 (1999) (reviewing MARCIAANGELL, SCIENCE ON TRIAL (1996)); Ryan M. Seidemann et al., Closing the Gate on Questiona-ble Expert Witness Testimony: A Proposal to Institute Expert Review Panels, 33 S.U. L. REV. 29,69–85 (2005); John Shepard Wiley, Jr., Taming Patent: Six Steps for Surviving Scary PatentCases, 50 UCLA L. REV. 1413, 1425–38 (2003); Debra L. Worthington et al., Hindsight Bias,Daubert, and the Silicone Breast Implant Litigation: Making the Case for Court-Appointed Expertsin Complex Medical and Scientific Litigation, 8 PSYCHOL. PUB. POL’Y & L. 154, 161–63 (2002).
See KAYE ET AL., supra note 18, § 11.2.3, (“[B]y all accounts judges exercise these powers infrequently.”); Michael J. Saks, The Phantom of the Courthouse, 35 JURIMETRICS J. 233,234 (1995) (reviewing JOE S. CECIL & THOMAS E. WILLGING, COURT-APPOINTED EXPERTS(1993)) (“Rule 706[, providing for the appointment of experts] . . . is a rule that was neverreally intended to be used. And not using it is what most judges do with it most of thetime.”).
See David L. Faigman, The Daubert Revolution and the Birth of Modernity: Managing Scientific Evidence in the Age of Science, 46 U.C. DAVIS L. REV. 893, 898 (2013) (“Although Fryewas decided in 1923, it did not achieve true notoriety until the 1970s . . . .”); Paul C.
Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-CenturyLater, 80 COLUM. L. REV. 1197, 1198 (1980).
See Giannelli, supra note 43, at 1206–07.
\\jciprod01\productn\N\NDL\89-1\NDL102.txt j u d i c i a l r e s i s t a n c e t o t h e D A U B E R T r e v o l u t i o n Frye, or persuaded by critiques of Frye that began to circulate in judicial opin- ions and scholarly articles—began to develop a reliability test to screen scien-tific evidence.45 Even more momentous, in the late 1970s, plaintiffs began to file what turned into a wave of “toxic tort” lawsuitslitigation alleging that exposureto pharmaceuticals, pollutants, or other toxic substances caused cancer, birthdefects, or other ailments. Early examples of such litigation included casesalleging harm caused by the swine flu vaccine,46 claims that the morningsickness drug Bendectin caused birth defects,47 and lawsuits arguing that can-cer and other harms were caused by the defoliant Agent Orange when it wasused during the Vietnam War.48 Litigation over these products involvedhundreds or thousands of plaintiffs, and put vast sums of money and entireindustries at risk. These cases also brought a new wave of complex experttestimony to the courts, and added great urgency to the question of whetherthe traditional battle of partisan experts was a sound way of resolving factualdisputes.49 One group of judges and commentators supported the retention of traditional liberal rules for admissibility of expert testimony. They con-tended that testimony by a qualified expert who claimed to find causation byrelying on some supporting evidence based on accepted scientific methodolo-gies should be admissible to prove causation in a toxic torts case withoutfurther inquiry as to the testimony’s reliability.
The leading case adopting this perspective, and probably the leading case on the admissibility of expert testimony in toxic torts cases pre-Daubert, See United States v. Downing, 753 F.2d 1224, 1238–39 (3d Cir. 1985); United States v. Williams, 583 F.2d 1194, 1198–99 (2d Cir. 1978).
See, e.g., Lima v. United States (In re Swine Flu Immunization Prods. Liab. Litig.), 508 F. Supp. 897 (D. Colo. 1981), aff‘d sub nom. Lima v. United States, 708 F.2d 502 (10thCir. 1983).
For overviews, see generally GREEN, supra note 4; SANDERS, supra note 4. For a dis- cussion of the harm to public health caused by this litigation, see David E. Bernstein, Learn-ing the Wrong Lessons from “An American Tragedy”: A Critique of the Berger-Twerski InformedChoice Proposal, 104 MICH. L. REV. 1961, 1962–67 (2006).
See SCHUCK, supra note 4; Michael D. Green, Expert Witnesses and Sufficiency of Evi- dence in Toxic Substances Litigation: The Legacy of Agent Orange and Bendectin Litigation, 86NW. U. L. REV. 643, 671–80 (1992).
Ironically, one product that clearly caused significant harm to the public, cigarettes, was subject to only minimal litigation at this time. A first wave of lawsuits against cigarettemakers in the 1950s and 1960s utterly failed, and such litigation did not return with anyforce until the late 1980s. See Robert L. Rabin, A Sociolegal History of the Tobacco Tort Litiga-tion, 44 STAN. L. REV. 853, 857, 864 (1992); Robert L. Rabin, Institutional and HistoricalPerspectives on Tobacco Tort Liability, in SMOKING POLICY 110, 110–25 (Robert L. Rabin &Stephen D. Sugarman eds., 1993); Robert L. Rabin, The Third Wave of Tobacco Tort Litiga-tion, in REGULATING TOBACCO 176, 176–97 (Robert L. Rabin & Stephen D. Sugarman eds.,2001); Robert L. Rabin, The Tobacco Litigation: A Tentative Assessment, 51 DEPAUL L. REV.
331, 332–47 (2001); Robert L. Rabin, Tobacco Control Strategies: Past Efficacy and Future Prom-ise, 41 LOY. L.A. L. REV. 1721, 1732–44 (2008).
\\jciprod01\productn\N\NDL\89-1\NDL102.txt was the 1984 D.C. Circuit case of Ferebee v. Chevron Chemical Co.50 Ferebeeinvolved a claim that exposure to a herbicide caused an individual’s cancer.
The case involved a unique workplace exposure, and therefore was not thesort of issue for which one could expect to have sufficient epidemiologicaldata. Instead, the plaintiff’s expert relied, rather vaguely, on “tissue samples,standard tests, and patient examination” to support his causationtestimony.51 The Ferebee court held that this testimony was admissible, because the “basic methodology” used by the expert was “sound.”52 The court did notexplain how reviewing “tissue samples, standard tests, and patient examina-tion” was a sound methodology for discovering whether a particular chemicalcauses cancer, much less whether exposure to that chemical caused a givenindividual’s cancer. Rather, the court was content to rely on the expert’sjudgment that such evidence was sufficient for him to conclude that the her-bicide exposure caused the plaintiff’s cancer.
The court explained its rationale as follows: [P]roducts liability law does not preclude recovery until a “statistically signifi-cant” number of people have been injured or until science has had the timeand resources to complete sophisticated laboratory studies of the chemi-cal. . . . [T]he fact that . . . science would require more evidence beforeconclusively considering the causation question resolved is irrelevant.53 The court added that the fact that this “case may have been the first of its exact type, or that [the plaintiff’s] doctors may have been the first alertenough to recognize such a case, does not mean that the testimony of thosedoctors, who are concededly well-qualified in their fields, should not havebeen admitted.”54 “On questions such as these, which stand at the frontier ofcurrent medical and epidemiological inquiry,” the court concluded, “ifexperts are willing to testify that such a link exists, it is for the jury to decidewhether to credit such testimony.”55 736 F.2d 1529 (D.C. Cir. 1984); accord City of Greenville v. W.R. Grace & Co., 827 F.2d 975 (4th Cir. 1987); Wells v. Ortho Pharm. Corp., 788 F.2d 741 (11th Cir. 1986);Bandura v. Orkin Exterminating Co., 664 F. Supp. 1218 (N.D. Ill. 1987), aff’d, 865 F.2d 816(7th Cir. 1988). See generally Burke v. Dow Chem. Co., 797 F. Supp. 1128, 1138 (E.D.N.Y.
1992) (describing Ferebee as “a leading case”); Alani Golanski, Judicial Scrutiny of Expert Testi-mony in Environmental Tort Litigation, 9 PACE ENVTL. L. REV. 399, 406 (1992) (noting that Ferebee was frequently cited as a leading case favoring liberal standards for the admissibility of expert causation testimony). Some Frye courts continue to utilize similar reasoning indefending their choice not to scrutinize plaintiffs’ experts’ reasoning in toxic tort cases.
See Nonnon v. City of New York, 819 N.Y.S.2d 705, 715 (App. Div. 2006) (refusing to applyFrye to a toxic exposure case because applying the general acceptance test to such cases would prevent plaintiffs “suffering the ill effects . . . of environmental contaminants” fromobtaining compensation).
\\jciprod01\productn\N\NDL\89-1\NDL102.txt j u d i c i a l r e s i s t a n c e t o t h e D A U B E R T r e v o l u t i o n The difficulty with Ferebee is that it implicitly treated plaintiffs’ experts in toxic torts cases as if their status as qualified experts meant that their reason-ing and conclusions necessarily reflected the views of a reputable segment oftheir scientific peers. In fact, however, due to adversarial bias in this context,this assumption is wrong.56 A toxic tort plaintiff with even marginally sugges-tive evidence of general causation has little trouble finding qualified expertsfrom among the tens of thousands of at least minimally qualified Americanphysicians, toxicologists, and so on who are willing to testify that specific cau-sation should be extrapolated from such evidence.
Ferebee’s forgiving rhetoric became a rallying cry for courts inclined to admit extremely dubious expert testimony in a variety of toxic tort con-texts.57 A series of verdicts for plaintiffs followed in cases in which expertspresented testimony that at best went well beyond available scientific knowl-edge, and at worst relied on utter balderdash.58 For example, there were several multi-million dollar verdicts against defendants based on the thoroughly discredited theories of a group of medi-cal charlatans who called themselves “clinical ecologists.”59 In one infamouscase, the Eleventh Circuit affirmed a five million dollar award to a plaintiffwho alleged that his birth defects resulted from his mother’s use of a com-mon spermicide.60 An attorney in a Bendectin case won a ninety-five milliondollar verdict thanks to his expert’s claim to have pieced together an “eviden-tiary mosaic” to support his causation theory.61 See Bernstein, supra note 35, at 465–67; Joseph Sanders, Science, Law, and the Expert Witness, 72 LAW & CONTEMP. PROBS. 63, 77 (2009) (“Witnesses are chosen because theyprefer a point of view, and the very choice of experts clouds the degree of consensus thatmay surround a topic.”). It’s worth noting that Ferebee was problematic because of its rea-soning, not necessarily because of its result. A recent review of Ferebee concludes that theD.C. Circuit’s ruling may not have been a miscarriage of justice. The plaintiff may very wellhave had reliable expert testimony of causation, even though the D.C. Circuit did notexplain why that was true and also seemed to disclaim the need for reliable testimony. SeeNathan A. Schachtman, Ferebee Revisited, SCHACHTMANLAW.COM (Nov. 8th, 2012, 2:27 PM),http://schachtmanlaw.com/ferebee-revisited/.
See Golanski, supra note 50, at 406 (noting that Ferebee was frequently cited as a leading case favoring liberal standards for the admissibility of expert causation testimony).
See FOSTER ET AL., supra note 3 (reviewing many of these cases, and comparing con- clusions of scientists in reviews of the relevant scientific literature to the how courts treatedthe same issues); HUBER, supra note 3 (providing accounts of many of these cases); HANS ZEISEL & DAVID KAYE, PROVE IT WITH FIGURES 45–68 (1997) (discussing some of thesecases).
See, e.g., Elam v. Alcolac, Inc., 765 S.W.2d 42, 219 (Mo. Ct. App. 1988) (compensa- tory and punitive damages totaling forty-nine million dollars). For harsh criticism of Elam,see Richard S. Cornfeld & Stuart F. Schlossman, Immunologic Laboratory Tests: A Critique ofthe Alcolac Decision, in PHANTOM RISK, supra note 3, at 401.
See Wells v. Ortho Pharm. Corp., 788 F.2d 741, 747–48 (11th Cir. 1986).
See Oxendine v. Merrell Dow Pharm., Inc., 506 A.2d 1100, 1110 (D.C. 1986) (“Like the pieces of a mosaic, the individual studies showed little or nothing when viewed sepa-rately from one another, but they combined to produce a whole that was greater than thesum of its parts: a foundation for Dr. Done’s opinion that Bendectin caused appellant’sbirth defects.”).
\\jciprod01\productn\N\NDL\89-1\NDL102.txt Such verdicts led to withering criticism from within and without the legal community.62 Editorialists in science journals and newspapers like theNew York Times called for stricter controls on expert testimony.63 In the faceof such criticism, many courts backtracked somewhat. The D.C. Circuit itselflimited Ferebee’s very porous admissibility standard to cases in which thedefendants could not present strong contradictory epidemiological or otherevidence disproving causation.64 Ferebee came to stand for the propositionthat a party may proffer speculative scientific expert testimony if the issue wason the “frontier of current medical and epidemiological inquiry,”65 and theexpert was relying on a methodology used in the mainstream scientificcommunity.66 Meanwhile, verdicts for plaintiffs based on questionable causation theo- ries continued to pile up, leading to increased criticism through the early1990s.67 The problem, according to critics, was not simply experts testifying For an example of criticism from the medical profession, see BD. OF TRS., AM. MED.
ASSOC., IMPACT OF PRODUCT LIABILITY ON THE DEVELOPMENT OF NEW MEDICAL TECHNOLO- GIES (1988) [hereinafter IMPACT OF PRODUCT LIABILITY].
See James L. Mills & Duane Alexander, Occasional Notes: Teratogens and “Litogens, 315 NEW ENG. J. MED. 1234, 1234–35 (1986); Federal Judges vs. Science, N.Y. TIMES, Dec. 27,1986, § 1, at 22.
See Ealy v. Richardson-Merrell, Inc., 897 F.2d 1159, 1164 (D.C. Cir. 1990); Brock v.
Merrell Dow Pharm., Inc., 874 F.2d 307, 311, modified on other grounds, 884 F.2d 166 (5thCir. 1989); Richardson v. Richardson-Merrell, Inc., 857 F.2d 823, 832 (D.C. Cir. 1988).
Defendants rarely have such evidence on their side, especially in the early stages of masslitigation, but they did eventually benefit from such evidence in the Bendectin litigation.
See generally Bernstein, supra note 47, at 1962–70 (reviewing the Bendectin litigation). And they eventually also benefited in the breast implant litigation. See Bernstein, supra note 41, Ferebee v. Chevron Chem. Co., 763 F.2d. 1529, 1534 (D.C. Cir. 1984).
Richardson, 857 F.2d at 832 (reaffirming Ferebee, but limiting it to expert testimony regarding issues on the frontier of scientific inquiry); see also Christophersen v. Allied-Sig-nal Corp., 939 F.2d 1106, 1127 (5th Cir. 1991) (en banc) (per curiam) (citing Ferebee andnoting “through traditional methods . . . the relationship between nickel, cadmium, andsmall-cell colon cancer is scant”); In re Benedectin Prods. Liab. Litig., 732 F. Supp. 744, 748(E.D. Mich. 1990) (holding the underlying data of a study must be “reasonably relied uponby experts in the field”); Bandura v. Orkin Exterminating Co., 664 F. Supp. 1218, 1219(N.D. Ill. 1987), aff’d, 865 F.2d 816 (7th Cir. 1988) (stating an expert’s study should beadmitted if the results are reasonable); Rubanick v. Witco Chem. Corp., 576 A.2d 4, 14–15(N.J. Super. Ct. App. Div. 1990) (stating evidence should be admitted as long as a reasona-ble expert could come to the same conclusion as the expert). The D.C. Circuit, for exam-ple, held that animal studies and chemical structure analyses that were not admissible toprove that Bendectin caused a plaintiff’s birth defects, because there was a great deal ofcontrary data. The same type of studies, however, were admissible to prove that DepoProvera caused that plaintiff’s birth defects, an issue that had not been widely studied. SeeAmbrosini v. Labarraque, 966 F.2d 1464, 1469 (D.C. Cir. 1992).
A key, but hardly the only, factor prompting the attention that the issue received, was HUBER, supra note 3. For criticism in non-legal periodicals, see IMPACT OF PRODUCT LIABILITY, supra note 62, at 9; Bert Black, Evolving Legal Standards for the Admissibility ofScientific Evidence, 239 SCI. 1508, 1511 (1988) (questioning judges’ ability to properlyexamine scientific studies and urging courts to use consistency within the scientific com- \\jciprod01\productn\N\NDL\89-1\NDL102.txt j u d i c i a l r e s i s t a n c e t o t h e D A U B E R T r e v o l u t i o n against a great weight of contrary evidence. Rather, courts erred in allowingexperts to speculate or guess that causation existed based on weak data thatdid not reach a minimum threshold of scientific reliability.68 Due to selec-tion bias, there was (and is) no shortage of sincere, well-qualified expert wit-nesses “who . . . confuse hypothesis with confirmed fact, and testify . . . to theactual existence of causal relations or substantially enhanced risks on weak orno evidence.”69 A few courts—fed up with what they saw as the laxity of their colleagues in admitting unreliable testimony produced by selection bias—began tosearch for a means of ensuring that expert testimony had some objectivebasis before admitting it into evidence. Some courts adopted the reliabilitytest pioneered in the toxic tort context by the Agent Orange opinion.70 Thereliability test’s popularity grew to the point that the Judicial ConferenceAdvisory Committee on Civil Rules proposed amending the rules of evidenceto allow only expert testimony that is “reasonably reliable and will substan-tially assist the trier of fact.”71 Early incarnations of the reliability test, how- munity as their barometer); Blake Fleetwood, From the People Who Brought You the TwinkieDefense, WASH. MONTHLY, June 1987, at 33 (examining the expert witness industry); Con-stance Holden, Science in Court, 243 SCI. 1658, 1658 (1989) (questioning judges’ ability toproperly examine scientific studies and suggesting emulation of the expert evidence rulesof European countries); Eliot Marshall, Immune System Theories on Trial, 234 SCI. 1490, 1492(1986) (stating that normal immune levels must be established before courts rule on theadmissibility of studies reflecting their change); Walter Olson, The Case Against Expert Wit-nesses, FORTUNE, Sept. 25, 1989, at 134, available at http://money.cnn.com/magazines/for-tune/fortune_archive/1989/09/25/72505. For criticism in the legal academic literature,see Bert Black, A Unified Theory of Scientific Evidence, 56 FORDHAM L. REV. 595 (1988) [here-inafter Black, Unified Theory]; Ronald L. Carlson, Policing the Bases of Modern Expert Testi-mony, 39 VAND. L. REV. 577 (1986); E. Donald Elliott, Toward Incentive-Based Procedure: ThreeApproaches for Regulating Scientific Evidence, 69 B.U. L. REV. 487 (1989); Fredrick I. Lederer, Proposals for a Model Rule on the Admissibility of Scientific Evidence, 115 F.R.D. 79, 84–145 (1987); James E. Starrs, Frye v. United States Restructured and Revitalized: A Proposal to AmendFederal Evidence Rule 702, 26 JURIMETRICS J. 249 (1986); David Bernstein, Note, Out of theFryeing Pan and into the Fire: The Expert Witness Problem in Toxic Tort Litigation, 10 REV. LITIG.
117, 138–42 (1990); Paul F. Rothstein & Michael Crew, When Should the Judge Keep ExpertTestimony from the Jury?, INSIDE LITIG., Apr. 1987, at 19.
See FOSTER ET AL., supra note 3, at 433 (contending that courts must assess “the relevance of data to health and the reliability of scientific inferences” (emphasis omitted)).
D. Michael Risinger, A Functional Taxonomy of Expertise, in 1 MODERN SCIENTIFIC EVI- DENCE § 2:15, at 106 (David L. Faigman et al. eds., 2005-2006 ed. 2005).
In re “Agent Orange” Prod. Liab. Litig., 597 F. Supp. 740, 795 (E.D.N.Y. 1984), aff’d, 818 F.2d 145 (2d Cir. 1987); see Lynch v. Merrell-Nat’l Labs, 830 F.2d 1190, 1196 (1st Cir.
1987); Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987).
COMM. ON RULES OF PRACTICE AND PROCEDURE, JUDICIAL CONFERENCE OF THE U.S., PRELIMINARY DRAFT OF PROPOSED AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE AND THE FEDERAL RULES OF EVIDENCE 83 (1991). The Judicial Conference Advisory Com-mittee eventually took no action, and instead referred the issue to the new Advisory Com-mittee on the Federal Rules of Evidence. See SUMMARY OF THE REPORT OF THE JUDICIALCONFERENCE COMM. ON RULES OF PRACTICE AND PROCEDURE 2 (Sept. 1991).
\\jciprod01\productn\N\NDL\89-1\NDL102.txt ever, did not prove a consistent barrier to junk science.72 A few courts, mostprominently the Fifth, Sixth, and Ninth Circuits,73 instead applied the Fryegeneral acceptance test, which had previously been largely limited to forensicscience evidence in criminal cases,74 to exclude toxic tort evidence.
There things stood in the early 1990s, while all sides of the controversy waited for the Supreme Court to weigh in.75 While the let-it-all-in approachwas clearly dying out,76 significant controversy remained as to both theunderlying problem and the underlying solution. On one side were courtsand commentators that believed that the problem was obvious quackery.
Some of these jurists believed that juries could be relied upon to reject suchquackery. But most acknowledged that courts should exclude experts whoeither rely on discredited methodologies like clinical ecology or, as in thecontext of Bendectin litigation, who present causation theories that conflictwith a great deal of sound contrary evidence published in reputable scientificjournals. However, in cases in which respectable scientists were willing tofind causation based on incomplete and speculative evidence where no scien-tific consensus existed, the traditional battle of the experts should reign.
For other courts and commentators, the problem was far broader. The essential problem was not “junk science” in toxic tort litigation per se, but theproblematic nature of relying on experts subject to adversarial bias to presentopinions to lay jurors that relied solely on the experts’ say-so, unsupported by See DeLuca v. Merrell Dow Pharm. Inc., 911 F.2d 941, 959 (3d Cir. 1990) (approv- ing, in a jurisdiction that had adopted the reliability test, the admissibility of testimony thatBendectin caused a plaintiff’s birth defects, which by this point was contrary to a vast bodyof epidemiological data); Susan R. Poulter, Science and Toxic Torts: Is There a Rational Solu-tion to the Problem of Causation?, 7 HIGH TECH. L.J. 189, 203 (1992) (noting that the reliabil-ity standard is problematic when “used to justify such minimal scrutiny of the reliability ofscientific evidence, particularly of expert opinion testimony, that it amounts to no standardat all”).
See Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1116 (5th Cir. 1991) (en banc) (per curiam); Daubert v. Merrell Dow Pharm., Inc., 951 F.2d 1128, 1129–31 (9th Cir.
1991), vacated, 509 U.S. 579 (1993); Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1208(6th Cir. 1988). Sterling didn’t cite Frye, but did apply the general acceptance test. Id. 1 DAVID W. LOUISELL & CHRISTOPHER B. MUELLER, FEDERAL EVIDENCE § 107, at 853 (1977) (“The Frye standard . . . is rarely applied in civil litigation; Frye itself has been citedonly in a very few civil cases, principally in state courts in connection with blood tests todetermine paternity.”); FAUST F. ROSSI, EXPERT WITNESSES 36 (1991) (“The Frye standardtraditionally has been applied almost exclusively in criminal cases.”).
The Court had repeatedly declined to address the issue. See, e.g., Ealy v. Richardson- Merrell, Inc., 897 F.2d 1159 (D.C. Cir. 1990), cert. denied, 498 U.S. 950 (1990); Christopher-sen v. Allied-Signal Corp., 902 F.2d 362 (5th Cir. 1990), aff’d, 939 F.2d 1106 (5th Cir. 1991)(en banc) (per curiam), cert. denied, 503 U.S. 912 (1992); Richardson v. Richardson-Mer-rell, Inc., 857 F.2d 823 (D.C. Cir. 1988), cert. denied, 493 U.S. 882 (1989); Brock v. MerrellDow Pharm., Inc., 874 F.2d 307 (5th Cir. 1989), modified, 884 F.2d 166 (5th Cir. 1989), cert.
denied
, 494 U.S. 1046 (1990); Ferebee v. Chevron Chem. Co., 736 F.2d 1529 (D.C. Cir.
1984), cert. denied, 469 U.S. 1062 (1984).
See Eymard v. Pan Am. World Airways (In re Air Crash Disaster at New Orleans, La.), 795 F.2d 1230, 1234 (5th Cir. 1986) (denouncing the “let it all in” approach to experttestimony (internal quotation marks omitted)).
\\jciprod01\productn\N\NDL\89-1\NDL102.txt j u d i c i a l r e s i s t a n c e t o t h e D A U B E R T r e v o l u t i o n objective evidence such as peer-reviewed, published studies.77 Such criticsfavored broadening the inquiry beyond whether an expert was relying on anaccepted methodology and instead also inquiring as to whether the expertwas using the methodology in a reliable way in a given case.78 Moreover,these courts and commentators rejected the notion that an absence of strongcontrary evidence dictated that they should be lax about admitting causationevidence. Additionally, this side of the debate thought all expert testimonyshould be subject to significant scrutiny for reliability, given that all expertsare subject to adversarial bias.79 THE DAUBERT TRILOGY AND FRE 702 (AS AMENDED) The contours of the debate over the admissibility of expert testimony in toxic tort litigation seem a lot clearer in retrospect than they did contempo-raneously, because at the time the plaintiffs’ bar still held out hope that thelet-it-all-in approach would be revived by the Supreme Court. Instead, in1993, the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals,Inc.80 expressly rejected the let-it-all-in standard in favor of a new reliabilitystandard. This opinion, however, did not resolve the conflict between thosewho thought the problem of quackspertise in court should be resolved byminor tinkering to prevent the most egregious examples of dubious testi-mony in toxic torts cases from being admitted, and those who advocated amore stringent approach that broadly tackled the problem of adversarialbias.
Supporters of more lenient rules for admissibility pointed to language in Daubert noting “the liberal thrust of the Federal Rules [of Evidence] and their general approach of relaxing the traditional barriers to opinion testi-mony,”81 and emphasizing the “flexible” nature of the inquiry trial courtsmust engage in.82 The Court expressed optimism about the capabilities ofthe adversarial process and of the jury, and spoke of “shaky but admissibleevidence.”83 Finally, the Court emphasized that the admissibility inquirymust be focused “solely on principles and methodology, not on the conclu- See HUBER, supra note 3, at 204 (“The only way to tell that expertise is based on objective experience is to see whether others with similar experience favor similar meth-ods, adopt similar procedures, embrace similar theories, and reach similar conclusions.”).
See, e.g., FOSTER ET AL., supra note 3, at 433; Black, Unified Theory, supra note 67, at 599 (contending that courts should consider “the validity of the reasoning leading to aconclusion” (emphasis omitted)).
See HUBER, supra note 3 (dealing not only with toxic tort cases, but with medical evidence and engineering quackspertise); David L. Faigman, To Have and Have Not: Assess-ing the Value of Social Science to the Law as Science and Policy, 38 EMORY L.J. 1005, 1009–10(1989) (“The legal relevance of social science findings should depend on their scientificstrength, that is, on the ability of social scientists to answer validly the questions posed tothem.” (footnote omitted)).
Id. at 588 (internal quotation marks omitted).
\\jciprod01\productn\N\NDL\89-1\NDL102.txt sions that they generate.”84 The latter language seemed consistent with caseslike Ferebee. It suggested the possibility that, post-Daubert, an expert need onlyshow that his very general methodology (such as, “extrapolating from animalstudies”85) could be considered reliable, regardless of how carefully or com-petently the expert utilized that methodology in the case at hand.86 On the other hand, Daubert insisted that trial court judges adopt “a gatekeeping role”87 to “ensure that any and all scientific testimony or evi-dence admitted is not only relevant, but reliable.”88 The Court listed fivesubstantive factorsincluding general acceptance and whether the expertrelied on peer-reviewed, published studiesas examples of how the districtcourts might approach this task.89 And in direct contrast to the “methodol-ogy only” language, the Court charged trial courts with assessing “whetherthe reasoning or methodology underlying the testimony is scientifically validand . . . whether that reasoning or methodology properly can be applied tothe facts in issue.”90 “Rule 702’s ‘helpfulness’ standard,” the Court added,“requires a valid scientific connection to the pertinent inquiry as a precondi-tion to admissibility.”91 So there was sufficient language in the opinion to allow both sides to declare victory. The Court could have clarified matters by applying its newlyannounced standard to the evidence rejected by the courts below. Instead, itsimply remanded the case to the Ninth Circuit. The Court also could havesignaled its intentions by ruling on whether the new reliability approachapplied only to scientific evidence (suggesting that it only wanted to reign inthe egregious misuse of causation evidence, as in the Bendectin litigation) orto all expert testimony (suggesting that it was trying to address the underly-ing issue of adversarial bias by adopting a broad reliability test). Instead, theCourt expressly declined to address the issue.92 News reports of the decision reflected divergent understandings of just what the Court had done.93 Commentators were similarly divided. The In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 781 n.47 (3d Cir. 1994).
See Kenneth J. Chesebro, Taking Daubert’s “Focus” Seriously: The Methodology/Conclu- sion Distinction, 15 CARDOZO L. REV. 1745, 1748–49 (1994); Michael H. Gottesman, Admissi-bility of Expert Testimony After Daubert: The “Prestige” Factor, 43 EMORY L.J. 867, 869–72 (1994)(arguing that under Daubert, courts may only assess experts’ general methodology).
Id. at 590 n.8. For commentary on this omission, see Edward J. Imwinkelried, The Next Step After Daubert: Developing a Similarly Epistemological Approach to Ensuring the Reliabilityof Nonscientific Expert Testimony, 15 CARDOZO L. REV. 2271, 2291 (1994).
The New York Times reported that “[t]he 7-to-2 decision invited judges to be aggres- sive in screening out ill-founded or speculative scientific theories.” Linda Greenhouse, Supreme Court Roundup: Justices Put Judges in Charge of Deciding Reliability of Scientific Testimony, N.Y. TIMES, June 29, 1993, at A13. The Wall Street Journal, by contrast, suggested that theruling favored plaintiffs seeking more liberal admissibility standards. See Paul M. Barrett, \\jciprod01\productn\N\NDL\89-1\NDL102.txt j u d i c i a l r e s i s t a n c e t o t h e D A U B E R T r e v o l u t i o n author of this Article believed that Daubert required what on average wouldamount to significantly increased judicial scrutiny of expert testimony toensure reliability.94 The Court’s more forgiving remarks seemed aimed pri-marily at a mythical version of Frye, understood as an “austere” rule thatmade it extremely difficult to present expert testimony.95 In fact, courtsrarely if ever applied Frye in a harsh, unforgiving way.96 Moreover, courtsusually applied Frye only to very narrow categories of evidence. Daubert’s criti-cisms of Frye were therefore not especially apposite.97 What was important,however, was Daubert’s focus on the reliability of expert testimony, its sugges-tion of several pertinent and reasonably strict criteria for determining relia-bility, and, in contrast to Frye’s traditional narrow scope, the Supreme Court’sinsistence that the new standard applied to all scientific evidence.98 Nevertheless, as noted, not everyone agreed, and Daubert became some- thing of a Rorschach test revealing judges’ preexisting views about howstrictly trial courts should scrutinize expert testimony. Courts that werestrongly inclined before Daubert to adopt more forgiving understandings ofadmissibility standards often continued to do so after Daubert. Indeed, theD.C. Circuit, where Ferebee was conceived, favorably cited and applied Ferebeethree years after Daubert.99 Justices Rule Against Business in Evidence Case, WALL ST. J., June 29, 1993, at A3; see also Margaret A. Berger, Supreme Court Deals Blow to Venerable ‘Frye’ Standard, N.Y.L.J., July 19,1993, at S3 (“Both sides immediately claimed victory . . . .”); Paul Houston, High CourtRelaxes Curbs on Expert Witness Testimony Law: Ruling Praised by Backers of Flexibility. BusinessInterests Also Claim Victory in Birth-Defects Case, L.A. TIMES (June 29, 1993), http://articles.
latimes.com/1993-06-29/news/mn-8393_1_expert-testimony (quoting the attorneys’reactions).
See David E. Bernstein, The Admissibility of Scientific Evidence After Daubert v. Merrell Dow Pharmaceuticals, Inc., 15 CARDOZO L. REV. 2139, 2139 (1994); David E. Bernstein &Peter W. Huber, Defense Perspective, 1 SHEPARD’S EXPERT & SCI. EVID. Q. 59, 60 (1993) (“Thetrend towards stricter scrutiny of scientific evidence began in the late-1980s; in the after-math of Daubert it will accelerate.”); David Bernstein, Hauling Junk Science Out of the Court-room, WALL ST. J., July 13, 1993, at A16 (“[A]s standards are established, [Daubert] meansthat junk science will have a far harder time making it to court.”).
KAYE ET AL., supra note 18, § 9.2.1 (“Before Daubert, it was clear that the elevated scrutiny reserved for scientific evidence applied to the methodology that an expertemployed and not to the conclusions that the expert reached by applying that methodol-ogy to specific facts.”).
As Michael Green notes: “To say that the Supreme Court replaced Frye in its Daubert opinion is misleading. What the Court did in Daubert was to adopt a test for scrutinizing anexpert’s methodology and reasoning that filled a previously extant void.” Michael D.
Green, The Road Less Well Traveled (and Seen): Contemporary Lawmaking in Products Liability,49 DEPAUL L. REV. 377, 398 (1999).
See Daubert, 509 U.S. at 592 n.11 (“Although the Frye decision itself focused exclu- sively on ‘novel’ scientific techniques, we do not read the requirements of Rule 702 toapply specially or exclusively to unconventional evidence.”).
The court held that highly speculative expert testimony indicating that Depo Provera caused the plaintiff’s birth defects was admissible because “there is no ‘overwhelm-ing body of contradictory epidemiological evidence’ to [the expert’s] conclusion.” \\jciprod01\productn\N\NDL\89-1\NDL102.txt Consider as well the post-Daubert Ninth Circuit case of Hopkins v. Dow Corning Corp.100 Hopkins involved a claim that silicone breast implants causeda woman’s immune system disease. This claim had no reliable scientific evi-dence behind it, and the notion that breast implants cause immune systemdisease became discredited as contrary evidence accumulated.101 Hopkinswas a momentous opinion, with the fate of the multi-billion dollar breastimplant litigation resting in significant part on the court’s decision whetherto uphold a jury verdict for the plaintiff.102 Yet the Ninth Circuit providedonly the most superficial and cursory examination of the plaintiff’s experttestimony. For example, here is all the court had to say about the admissibil-ity of the testimony of a key plaintiffs’ expert: “Dr. Vasey, a rheumatologist,testified that his opinion was based on medical records, his clinical experi-ence, preliminary results of an epidemiological study[,] and medical litera-ture. Thus, we conclude the ‘reasoning or methodology underlying thetestimony is scientifically valid . . . .’ ”103 Despite cases like Hopkins, the trend toward stricter scrutiny of expert testimony accelerated because of the attention the “gatekeeper” requirementreceived, and because the Court had suggested several relatively stringentcriteria for scrutinizing expert testimony.104 Indeed, in contrast to Hopkins,two Ninth Circuit opinions rejected the “methodologies/conclusions” dis-tinction,105 and on remand from Daubert itself, the court issued an opinionwidely seen as adopting a strict interpretation of the Supreme Court’s rul- Ambrosini v. Labarraque, 101 F.3d 129, 138 (D.C. Cir. 1996) (quoting Richardson v. Rich-ardson-Merrell, Inc., 857 F.2d 823, 830 (D.C. Cir. 1988)) (applying and citing Ferebee v.
Chevron Chem. Co., 736 F.2d 1529, 1536 (D.C. Cir. 1984)); see Michael D. Green, Relief atthe Frying of Frye: Reflections on Daubert v. Merrell Dow Pharmaceuticals, 1 SHEPARD’SEXPERT & SCI. EVID. Q. 43, 47–48 (1993) (suggesting that Daubert adopted Ferebee-like stan-dards in cases on the frontier of medical science); see also McCullock v. H.B. Fuller Co., 61F.3d 1038, 1043–45 (2d Cir. 1995) (upholding the admission of a treating physician’s testi-mony that glue fumes caused the plaintiff’s throat polyps, despite the absence of any scien-tific literature suggesting such a relationship); Alexander Morgan Capron, Daubert and theQuest for Value-Free “Scientific Knowledge” in the Courtroom, 30 U. RICH. L. REV. 85, 106 (1996)(predicting that “the courts [will] read Daubert as encouraging liberal allowance of testi-mony whenever there is any well credentialed scientist who supports the theory”).
For an early post-mortem of the litigation, see Bernstein, supra note 41, at 472–76, Hopkins, 33 F.3d at 1125 (alteration in original) (quoting Daubert, 509 U.S. at 592–93). Part of the fault likely lies with the defendants’ attorneys, who chose in theirbrief to primarily rely on a statute of limitations argument that was inconsistent with theirsecondary reliance on Daubert.
See MOLLY TREADWAY JOHNSON ET AL., FED. JUDICIAL CTR., EXPERT TESTIMONY IN FED- ERAL CIVIL TRIALS 4 (2000) (finding that Daubert significantly increased judges’ willingnessto serve as gatekeepers).
See Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 598 (9th Cir. 1996) (“When a scientist claims to rely on a method practiced by most scientists, yet presents conclusionsthat are shared by no other scientist, the district court should be wary that the method hasnot been faithfully applied.”); Claar v. Burlington N.R.R., 29 F.3d 499, 501 (9th Cir. 1994) \\jciprod01\productn\N\NDL\89-1\NDL102.txt j u d i c i a l r e s i s t a n c e t o t h e D A U B E R T r e v o l u t i o n ing.106 Other courts also adopted an exacting interpretation of Daubert,sometimes specifically referencing the problems attendant to adversarial bias(albeit without using that terminology).107 For several years, the Supreme Court allowed the debate over the proper interpretation of Daubert to simmer in the lower courts. The Court inter-vened, however, because two circuits engaged in open revolt against theirresponsibility to serve as gatekeepers ensuring the reliability of expert testi-mony in toxic torts cases.
First, the Third Circuit, the most lenient circuit pre-Daubert with regard to the admissibility of expert testimony in toxic tort cases,108 announced thathenceforth it would provide a “hard look,” i.e., “more stringent review” ofdistrict court rulings excluding plaintiffs’ causation evidence.109 Otherwise,the court claimed, “there is a significant risk that district judges will set thethreshold too high and will in fact force plaintiffs to prove their case twice.
Reducing this risk is particularly important because the Federal Rules of Evi-dence display a preference for admissibility.”110 The idea that appellate courts should adopt a “hard look” perspective regarding district court decisions, and only when the district court excludedevidence, and only when such exclusions applied to plaintiff’s evidence in a civil case, had no basis in the text of Daubert. Nor did the court cite any precedent for the idea that district court evidentiary rulings should bereviewed differently depending on which side’s evidence was excluded.
Moreover, the court failed to apply any sort of reliability test to the evidenceat hand.
Similarly, in Joiner v. General Electric Co., the Eleventh Circuit not only reversed a district court decision excluding dubious causation evidence, butalso joined the Third Circuit in applying “a particularly stringent standard ofreview to the trial judge’s exclusion of expert testimony.”111 Joiner involvedan electrician, Robert Joiner, who developed small cell lung cancer afterbeing exposed to poly-chlorinated biophenyls (PCBs) at his workplace. Hesued several manufacturers of PCBs, relying on expert testimony regardingcausation that was based on extrapolating from animal studies. The districtcourt found that the studies on which the plaintiffs’ experts relied did not (emphasizing that a district court is “both authorized and obligated to scrutinize carefullythe reasoning and methodology underlying” the expert’s proffered testimony).
See Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315–16 (9th Cir. 1995).
See Braun v. Lorillard Inc., 84 F.3d 230, 235, 237–38 (7th Cir. 1996).
See In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 856–59 (3d Cir. 1990); DeLuca v.
Merrell Dow Pharm., Inc., 911 F.2d 941, 954–57 (3d Cir. 1990); Linkstrom v. Golden T.
Farms, 883 F.2d 269 (3d Cir. 1989). See generally Bernstein, supra note 67, at 152 n.208(identifying the Third Circuit as having the most liberal admissibility standards for experttestimony in toxic tort cases of any federal circuit).
In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 749–50 (3d Cir. 1994).
Joiner v. Gen. Elec. Co., 78 F.3d 524, 529 (11th Cir. 1996) (“[W]e apply a particu- larly stringent standard of review to the trial judge’s exclusion of expert testimony.”), rev’d,522 U.S. 136 (1997).
\\jciprod01\productn\N\NDL\89-1\NDL102.txt adequately support the conclusion that PCBs can promote cancers. Thecourt then granted summary judgment to the defendants.
On appeal, the Eleventh Circuit engaged in its “particularly stringent review” of the district court ruling. The panel concluded that the lower courterred by “assess[ing] only a portion of the studies relied upon by each of theJoiners’ experts, and then exclud[ing] the testimony because it drew differ-ent conclusions from the research than did each of the experts.”112 The gauntlet thrown down, the Supreme Court agreed to review the Eleventh Circuit holding. The Court summarily rejected the notion that aspecial, stricter standard of review applied to a district court’s exclusion ofplaintiffs’ evidence in toxic tort cases.113 Instead, the Court held that circuitcourts must universally apply an abuse of discretion standard to district courtrulings on the admissibility of expert testimony.114 The Court then took the opportunity to weigh in on the broader contro- versy within the federal courts regarding whether Daubert permitted districtcourts to assess the reliability of an expert’s reasoning process, or whethercourts were to strictly segregate “methodology” from “conclusion.” Joinertook the former position, stating that “conclusions and methodology are notentirely distinct from one another” and that nothing in “Daubert or the Fed-eral Rules of Evidence requires a district court to admit opinion evidencethat is connected to existing data only by the ipse dixit of the expert.”115Instead, courts were free to conclude that “there is simply too great an analyt-ical gap between the data and the opinion proffered.”116 The Court thencarefully reviewed the plaintiff’s causation testimony, and upheld the districtcourt’s ruling that the evidence was not admissible.117 Joiner sent a powerful signal to lower federal courts that the era of specu- lative expert testimony on causation was over.118 The Supreme Court had Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997).
The Court, for example, explained why the animal studies presented in the case Joiner was an adult human being whose alleged exposure to PCB’s was far lessthan the exposure in the animal studies. The PCB’s were injected into the micein a highly concentrated form. The fluid with which Joiner had come into con-tact generally had a much smaller PCB concentration of between 0-to-500 partsper million. The cancer that these mice developed was alveologenic adenomas;Joiner had developed small-cell carcinomas. No study demonstrated that adultmice developed cancer after being exposed to PCB’s. One of the experts admit-ted that no study had demonstrated that PCB’s lead to cancer in any otherspecies.
See Margaret A. Berger & Aaron D. Twerski, Uncertainty and Informed Choice: Unmaking Daubert, 104 MICH. L. REV. 257, 263 (2005) (reporting that “the Joiner Courtendorsed an approach that provided trial courts with a template for excluding expert testi-mony on causation”). For example, the Eleventh Circuit, which had issued the “loose scru- \\jciprod01\productn\N\NDL\89-1\NDL102.txt j u d i c i a l r e s i s t a n c e t o t h e D A U B E R T r e v o l u t i o n bluntly rejected the let-it-all-in approach in Daubert. Now, in Joiner, it alsorejected the somewhat more demanding Ferebee approach of allowing quali-fied experts in cases involving scientific controversies on which no profes-sional consensus had developed to testify to causation based on ambiguous,speculative, or preliminary data created with standard scientificmethodologies.
At this point, at least one prominent advocate of more lenient scrutiny of expert testimony in toxic torts cases conceded defeat.119 Some courtsinclined to more liberal admissibility rules, however, did not give up. TheSecond Circuit, for example, tried to revive Ferebee-like standards in Zuchowiczv. United States.120 The court upheld the district court’s admission of expertcausation evidence that at best amounted to educated guesses.121 The courtconcluded that when direct studies of the association in humans between arare disease and a drug are not possible, Joiner allows causation testimonybased on the exclusion of other drugs as the cause and an untested, specula-tive theory as to how the drug might have produced the disease.122 Arguably, Zuchowicz violated only the spirit, but not the letter, of Joiner.
Joiner permitted and encouraged, but did not explicitly require, a district court to examine the reliability of an expert’s reasoning processes.123 In the tiny” lower court opinion in Joiner, issued a much stricter ruling in Allison v. McGhanMedical Corp., 184 F.3d 1300, 1314–15 & n.16 (11th Cir. 1999). After Joiner, courts becameincreasingly likely to reject anecdotal case reports as evidence of causation. See, e.g., Hol-lander v. Sandoz Pharm. Corp., 95 F. Supp. 2d 1230, 1235–39 (W.D. Okla. 2000); Glastetterv. Novartis Pharm. Corp., 107 F. Supp. 2d 1015, 1030 (E.D. Mo. 2000), aff’d, 252 F.3d 986(8th Cir. 2001); Brumbaugh v. Sandoz Pharm. Corp., 77 F. Supp. 2d 1153, 1157 (D. Mont.
1999); In re Breast Implant Litig., 11 F. Supp. 2d 1217, 1227–28 (D. Colo. 1998) (“To theextent that there are case or anecdotal reports noting various symptoms or signs in breastimplanted women, without controls, these suggest only a potential, untested hypothesisthat breast implants may be their cause.”); Willert v. Ortho Pharm. Corp., 995 F. Supp. 979,981 (D. Minn. 1998) (concluding that case reports are not sufficient evidence of causationbecause they do not exclude other alternative explanations). Other courts rejected chemi-cal structure analysis as evidence of causation. See, e.g., Schudel v. Gen. Elec. Co., 120 F.3d991, 996–98 (9th Cir. 1997); Brumbaugh, 77 F. Supp. 2d at 1157; see also Daniel J. Capra, The Daubert Puzzle, 32 GA. L. REV. 699, 715 (1998) (“One example of improper extrapola- tion is an expert’s use of structure analysis.”). For post-Joiner cases rejecting reliance ongovernment regulatory action to prove causation, see Hollander, 95 F. Supp. 2d at 1234 n.9; Glastetter, 107 F. Supp. 2d at 1036.
See, e.g., Michael H. Gottesman, From Barefoot to Daubert to Joiner: Triple Play or Double Error?, 40 ARIZ. L. REV. 753, 771 (1998). Gottesman represented the plaintiffs in Joiner and Daubert before the Supreme Court.
See Samuel R. Gross & Jennifer L. Mnookin, Expert Information and Expert Evidence: A Preliminary Taxonomy, 34 SETON HALL L. REV. 141, 184 (2003) (describing the expert opin-ions in Zuchowicz as educated guesses).
See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (“But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evi- dence that is connected to existing data only by the ipse dixit of the expert. A court may \\jciprod01\productn\N\NDL\89-1\NDL102.txt absence of such an explicit requirement, the Second Circuit could plausiblyconclude that the district court did not abuse its discretion.124 By contrast to Zuchowicz, in Moore v. Ashland Chemical Inc.,125 the Fifth Circuit held that a party proffering expert testimony must demonstrate thatthe expert’s findings and conclusions are based on the scientific method,and, therefore, are reliable. This, said the court, requires some “objective,independent validation of the expert’s methodology. The expert’s assur-ances that he has utilized generally accepted scientific methodology isinsufficient.”126 Moore reflected the trend in federal courts far more than Zuchowicz.127 Nevertheless, given precedents like the latter, it remained unclear as towhether the extant rule was that expert scientific testimony was only admissi-ble if it was supported by objective validation (which would imply that adver-sarial bias was the underlying problem addressed by Daubert and Joiner), orwhether district courts could choose between applying that standard andallowing experts to speculate based on available data (which would imply thatthe Court was focused solely on the “junk science” problem).
This ambiguity was addressed in the Supreme Court’s final contribution to the Daubert trilogy, Kumho Tire Co. v. Carmichael.128 Some courts had triedto evade the trend toward stricter scrutiny of expert testimony by declaringthat Daubert’s reliability standard only applied to scientific evidence. Theythen defined the scope of scientific evidence narrowly.129 conclude that there is simply too great an analytical gap between the data and the opinionproffered.” (emphasis added)).
See Westberry v. Gislaved Gummi AB, 178 F.3d 257, 266 (4th Cir. 1999) (allowing causation testimony even though there were no peer-reviewed studies, no animal studies,and no laboratory data supporting the testimony); Heller v. Shaw Indus., Inc., 167 F.3d146, 155 (3d Cir. 1999) (allowing highly speculative expert testimony not supported byunderlying research because otherwise the rules of evidence would “doom” claims wherethe relevant research was in its early stages); Kennedy v. Collagen Corp., 161 F.3d 1226,1231 (9th Cir. 1998) (reversing a district court’s exclusion of testimony purported to link aconsumer product to lupus, despite the absence of any human or animal studies showingsuch a link).
This led one plaintiffs’ lawyer, not shy about hyperbole, to conclude in 1999 that “Daubert is death and disaster to Plaintiffs’ attorneys!” Raphael Metzger, Dealing withDaubert in California: The Perspective of a Plaintiff’s Attorney, METZGER LAW GROUP http://www.toxictorts.com/index.php/about-us/articles/40-dealing-with-daubert-in-california-the-perspective-of-a-plaintiffs-attorney (last visited Oct. 22, 2013).
See Iacobelli Constr., Inc. v. Cnty. of Monroe, 32 F.3d 19, 25–26 (2d Cir. 1994); Fanning v. Acromed Corp. (In re Orthopedic Bone Screw Prod. Liab. Litig.), 176 F.R.D.
158, 168–69, 173 (E.D. Pa. 1997); Thornton v. Caterpillar, Inc., 951 F. Supp. 575, 577–78(D.S.C. 1997); see also Imwinkelried, supra note 92, at 2273 (“To be sure, it is understanda-ble why the Daubert Court limited its ruling to scientific testimony.”); Linda SandstromSimard & William G. Young, Daubert’s Gatekeeper: The Role of the District Judge in AdmittingExpert Testimony, 68 TUL. L. REV. 1457, 1466 n.63 (1994) (noting the narrow scope of Rule703). This continues to be an issue in state courts that follow the Frye rule. The Kansas \\jciprod01\productn\N\NDL\89-1\NDL102.txt j u d i c i a l r e s i s t a n c e t o t h e D A U B E R T r e v o l u t i o n In Kumho Tire, however, the Court extended Daubert’s gatekeeping func- tion beyond scientific evidence to encompass all expert testimony. It is diffi-cult to overstate the significance of this ruling. As noted previously,130before Daubert, the Frye general acceptance test was the main tool courts hadto exclude unreliable expert testimony. But Frye had traditionally appliedonly to limited categories of scientific expert testimony, with all other experttestimony subject to a liberal admissibility standard that focused primarily onthe qualifications of the expert. By contrast, Kumho Tire expanded Daubert’sreliability test to the broader universe of expert testimony.
Any claims that this broadening was accompanied by a subtle liberaliza- tion of the standard for admissibility were negated a year later, when theSupreme Court noted that “[s]ince Daubert . . . parties relying on expertevidence have had notice of the exacting standards of reliability such evidencemust meet.”131 A 2000 amendment to Federal Rule of Evidence 702 reinforced, indeed codified, the Supreme Court’s insistence that all adversarial expert testimonybe subject to a reliability test. In 1997, legislation codifying Daubert was pend-ing in the federal House of Representatives and Senate. The legislation wasintroduced by congressmen seeking to encourage the trend toward greaterscrutiny of expert testimony. The Advisory Committee on Evidence Rulesfound the bills to be too narrow, as they did not address non-scientific evi-dence, and too stringent, as they would “impose evidentiary standards so rig-orous as to render much traditionally accepted expert testimonyinadmissible.”132 The Advisory Committee therefore decided to try toamend Rule 702 through the rule-making process.133 The proposed rule had to be demanding enough to discourage congres- sional efforts to rewrite Rule 702. Crucially, the new rule mandated that forexpert testimony to be admissible, an expert witness must not only utilizereliable principles and methods, but must have “applied the principles andmethods reliably to the facts of the case.”134 The rule therefore prohibited Supreme Court, for example, held that a physician’s testimony claiming that ingestion ofthe drug Parlodel caused a woman’s death was exempt from Frye because it was not basedon scientific evidence but was instead his “pure opinion.” Kuhn v. Sandoz Pharm. Corp.,14 P.3d 1170, 1179–85 (Kan. 2000).
See supra notes 43–48 and accompanying text.
Weisgram v. Marley Co., 528 U.S. 440, 455 (2000) (emphasis added).
Memorandum from Fern M. Smith, Chair, Advisory Comm. on Evidence Rules, to Alicemarie H. Stotler, Chair, Standing Comm. on Rules of Practice and Procedure 4 (Dec.
1, 1997), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Reports/EV12-1997.pdf.
Memorandum from Fern M. Smith, Chair, Advisory Comm. on Evidence Rules, to Alicemarie H. Stotler, Chair, Standing Comm. on Rules of Practice and Procedure 8 (May1, 1998), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Reports/EV5-1998.pdf.
\\jciprod01\productn\N\NDL\89-1\NDL102.txt experts from relying on informed speculation and educated guesses as in The Advisory Committee cut off an additional loophole used by courts seeking to evade their gatekeeping responsibilities. Some courts had simplydeclared that testimony that otherwise appeared to be expert testimony sub-ject to the Daubert trilogy could instead be admitted as lay opinion testimonyunder Rule 701.136 Rule 701 was therefore amended to clarify that it appliedonly to testimony “not based on scientific, technical, or other specializedknowledge within the scope of Rule 702.”137 Thus, in a very short period of time, expert evidence law in federal courts (and states following the federal lead) underwent revolutionarychanges. As of the early 1980s, with few exceptions, any qualified expert waspermitted to testify on any relevant subject. By 2000, even the most qualifiedexperts needed to prove that their testimony was based on reliable principlesand methods, and those principles and methods were applied reliably to thefacts of the case. Prompted by the controversy over toxic tort cases, the lawhad evolved very quickly to tackle the longstanding problem of adversarialbias. As discussed below, however, not all federal judges accepted such rapidand radical change.
As we have seen, as the rules for expert testimony gradually tightened, many federal courts resisted. A few sought to retain the old let-it-all-in rules,while a larger number preferred narrow changes to deal with obviousinstances of junk science. Most courts, regardless of their previous positions,eventually complied with the new order created by the Daubert trilogy as codi-fied by amended Rule 702.138 Some judges, however, have continued toapply more liberal rules. Such judges often rely on cases preceding the 2000 Cf. McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1255 (11th Cir. 2005) (overturn- ing a trial court admissibility ruling and jury verdict on this basis).
See, e.g., Asplundh Mfg. Div. v. Benton Harbor Eng’g, 57 F.3d 1190, 1194 (3d Cir.
1995) (noting the district court’s use of Rule 701 to admit arguably expert testimony).
For example, several courts excluded causation evidence in cases alleging harm from the drug Parlodel. See, e.g., Soldo v. Sandoz Pharm. Corp., 244 F. Supp. 2d 434,572–75 (W.D. Pa. 2003); Dunn v. Sandoz Pharm. Corp., 275 F. Supp. 2d 672, 676–84(M.D.N.C. 2003); Caraker v. Sandoz Pharm. Corp., 172 F. Supp. 2d 1046, 1048–53 (S.D. Ill.
2001); Siharath v. Sandoz Pharm. Corp., 131 F. Supp. 2d 1347, 1351–74 (N.D. Ga. 2001), aff’d sub nom. Rider v. Sandoz Pharm. Corp., 295 F.3d 1194, 1203 (11th Cir. 2002); Glastet- ter v. Novartis Pharm. Corp., 107 F. Supp. 2d 1015, 1017–46 (E.D. Mo. 2000), aff’d, 252F.3d 986 (8th Cir. 2001); Hollander v. Sandoz Pharm. Corp., 95 F. Supp. 2d 1230, 1233–39(W.D. Okla. 2000), aff’d, 289 F.3d 1193 (10th Cir. 2002). But see Brasher v. Sandoz Pharm.
Corp., 160 F. Supp. 2d 1291, 1299 (N.D. Ala. 2001) (denying motion for summary judg-ment on grounds that expert testimony was reliable); Eve v. Sandoz Pharm. Corp., No. IP98-1429-C-Y/S, 2001 U.S. Dist. LEXIS 4531, at *55–88 (S.D. Ind. Mar. 7, 2001); Globetti v.
Sandoz Pharm. Corp., 111 F. Supp. 2d 1174, 1180 (N.D. Ala. 2000). Such evidence wouldhave been easily admissible in an earlier era.
\\jciprod01\productn\N\NDL\89-1\NDL102.txt j u d i c i a l r e s i s t a n c e t o t h e D A U B E R T r e v o l u t i o n changes to Rule 702, going back at times to pre-Joiner, or even pre-Daubertcase law inconsistent with later developments in the law of expert testimony.
Meanwhile, they ignore the language of Rule 702.139 Judging from the opinions they wrote, some federal judges were either unaware that Rule 702 was amended in 2000, or intentionally ignored theamendment.140 Other judges have ignored both Joiner’s statement that dis-trict courts may reject testimony when there is an “analytical gap”141 betweenthe expert’s methodology and conclusions, and amended Rule 702’s insis- For discussions of this issue, see David Bernstein, Courts Refusing to Apply Federal Rule of Evidence 702, THE VOLOKH CONSPIRACY (May 6, 2006, 09:29 AM), http://www.volokh.
com/posts/chain_1147021015.shtml; David Bernstein, More on Daubert and Rule 702, THEVOLOKH CONSPIRACY (Jul. 6, 2006, 3:38 PM), http://www.volokh.com/posts/1152214719.shtml. Perhaps the most egregious example of a federal appellate court ignor-ing the language of Rule 702 arose in the 2006 Federal Circuit opinion in Liquid DynamicsCorp. v. Vaughan Co., 449 F.3d 1209 (Fed. Cir. 2006). In this case, the court never cited thetext of Rule 702, or, for that matter, showed an awareness that Rule 702, as amended in2000, is the governing rule for the admissibility of expert testimony. The court citedDaubert as the last word on the scope of Rule 702, ignoring both the text of amended Rule702 and Joiner. Id. at 1220. To justify its ruling, the court cited a 1986(!) Eighth Circuitopinion for the proposition that inadequacies in expert testimony are a matter of weight,not admissibility. Id. at 1221. The court also cited an equally wrongheaded post-2000 Elev-enth Circuit opinion that relied on the same 1986 precedent to state that an objection tothe reliability of an expert’s testimony goes only to weight, not admissibility. Id. For arecent example of a court relying on pro-admissibility dicta in Daubert and ignoring subse-quent developments, see MBIA Ins. Corp. v. Patriarch Partners VIII, LLC, No. 09 Civ. 3255,2012 WL 2568972, at *15 (S.D.N.Y. July 3, 2012) (“The Federal Rules of Evidence favor theadmissibility of expert testimony and are applied with a ‘liberal thrust.’ ” (quoting Daubertv. Merrell Dow Pharm., Inc., 509 U.S. 579, 588 (1993))).
As courts have noted, “ ‘Rule 702 reflects an attempt to liberalize the rules governing the admission of expert testimony.’ ” Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8thCir. 2001) (quoting Weisgram v. Marley Co., 169 F.3d 514, 523 (8th Cir. 1999)). It isremarkable that a federal court in 2001 could come to the conclusion that Rule 702 liberal-ized the admissibility of expert testimony, and even more remarkable that the court quotesfor support an opinion from when a different version of the rule existed. To compoundmatters, it also quoted a pre-Daubert opinion for the proposition that Rule 702 is a rule “ ‘ofadmissibility rather than exclusion.’ ” Id. (quoting Arcoren v. United States, 929 F.2d 1235,1239 (8th Cir. 1991)).
At least two federal district court judges have alluded to the Supreme Court’s inter- pretation of Rule 702 in the Daubert trilogy as the current law. Of course, the trilogy inter-preted the old Rule 702, and neither of the judges in question addressed the text of thecurrent rule. See In re Chantix (Varenicline) Prods. Liab. Litig., 889 F. Supp. 2d 1272, 1279(N.D. Ala. 2012); Ellipsis, Inc. v. The Color Works, Inc., 428 F. Supp. 2d 752, 757 (W.D.
Tenn. 2006). In another recent case, the presiding judge invoked the Third Circuitapproach to expert testimony. In re Avandia Mktg., Sales Practices & Prods. Liab. Litig.,No. 2007–MD–1871, 2011 WL 13576, at *1–2 (E.D. Pa. Jan. 4, 2011). While the judge didquote the language of the current rule, she added that in a 1999 case, the Third Circuitdistilled this rule to two essential inquiries: “1) is the proffered expert qualified to expressan expert opinion; and 2) is the expert opinion reliable?” Id. at *1 (quoting In re TMILitig., 193 F.3d 613, 664 (3d Cir. 1999)). The Third Circuit obviously could not havedistilled a rule from statutory language that did not yet exist.
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
\\jciprod01\productn\N\NDL\89-1\NDL102.txt tence that courts ensure that a witness has applied the principles and meth-ods reliably to the facts of the case.142 Yet others have been far more lenientabout admitting expert testimony than any reasonable interpretation of Rule702 would allow.143 Finally, some courts resurrected the ghost of Ferebee byholding plaintiffs’ evidence to a lower standard of reliability when no scien-tific consensus on the issue at hand had developed.144 For example, in 2004 the Eleventh Circuit cautioned that “a court should meticu- lously focus on the expert’s principles and methodology, and not on the conclusions thatthey generate.” McDowell v. Brown, 392 F.3d 1283, 1298 (11th Cir. 2004). In another2004 opinion, the Eleventh Circuit quoted the three-part test established by Rule 702, butjust a few paragraphs later announced that its own more forgiving test, adopted in 1998,was the law of the circuit. See United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004)(citing City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998)); cf.
Rosenfeld v. Oceania Cruises, Inc., 682 F.3d 1320, 1322 (11th Cir. 2012) (Tjoflat, J., dis-senting from denial of rehearing en banc) (arguing that the Frazier test must be construedto mean the same thing as Rule 702). The Third Circuit, meanwhile, claimed that “therole of the District Court is simply to evaluate whether the methodology utilized by theexpert is reliable” and added that any “application” of the methodology should be“addressed on cross-examination,” not through the rules of evidence. Walker v. Gordon,46 F. App’x 691, 695–96 (3d Cir. 2002); see also Riley v. Target Corp., No. 4:05CV00729,2006 WL 1028773, at *4–5 (E.D. Ark. Apr. 13, 2006) (holding that any flaws in a “differen-tial diagnosis” go to weight, not admissibility).
See, e.g., Kudabeck v. Kroger Co., 338 F.3d 856, 860–63 (8th Cir. 2003) (holding that chiropractor’s testimony that a fall caused the plaintiff’s degenerative disc disease satisfied Daubert); Perkins v. Origin Medsystems, Inc., 299 F. Supp. 2d 45, 62 (D. Conn. 2004) (con- cluding that a clinician’s speculation based on her experience, and not an examination ofthe victim, was admissible); In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 289 F.
Supp. 2d 1230, 1248 (W.D. Wash. 2003) (“[C]ase and adverse drug reports, textbooks andtreatises, and the clinical experience of several experts . . . satisfies the mandate of The Eighth Circuit, in language reminiscent of Ferebee, has stated that [t]he first several victims of a new toxic tort should not be barred from havingtheir day in court simply because the medical literature, which will eventuallyshow the connection between the victims’ condition and the toxic substance[(how could a court possibly know this?)], has not yet been completed.
Bonner v. ISP Techs., Inc., 259 F.3d 924, 928 (8th Cir. 2001) (first alteration in original)(internal quotation marks omitted) (quoting Turner v. Iowa Fire Equip. Co., 229 F.3d1202, 1209 (8th Cir. 2000)). By contrast, in Daubert, the Supreme Court stated: We recognize that, in practice, a gatekeeping role for the judge, no matter howflexible, inevitably on occasion will prevent the jury from learning of authenticinsights and innovations. That, nevertheless, is the balance that is struck by Rulesof Evidence designed not for the exhaustive search for cosmic understanding butfor the particularized resolution of legal disputes.
The Eighth Circuit added that:the factual basis of an expert opinion goes to the credibility of the testimony, notthe admissibility, and it is up to the opposing party to examine the factual basisfor the opinion in cross-examination. Only if the expert’s opinion is so funda-mentally unsupported that it can offer no assistance to the jury must such testi-mony be excluded.
\\jciprod01\productn\N\NDL\89-1\NDL102.txt j u d i c i a l r e s i s t a n c e t o t h e D A U B E R T r e v o l u t i o n The most notorious opinion rebelling against the post-Daubert admissi- bility rules for expert testimony, the First Circuit’s opinion in Milward v. Acu-ity Specialty Products Group, Inc.,145 makes all of these errors and more.
Milward involved claims that Brian Milward’s workplace exposure to products containing benzene caused him to develop a rare subtype of acute myeloidleukemia (AML) called acute promyelocytic leukemia (APL).146 The plain-tiffs’ scientific expert was Martyn Smith, a well-credentialed toxicologist withmuch experience researching the health effects of benzene.147 At defendants’ request, the trial court bifurcated the trial so that the issues of general and specific causation would be presented separately. Smithfirst presented evidence on general causation, i.e., whether benzene expo-sure causes an increased risk of APL. Smith argued that causation could beinferred based on the following evidence: (1) a small body of epidemiological studies investigating the relationship (2) an analogy between APL and other types of AML known to be associ- (3) experimental research purporting to show that the various sub-types

Source: http://ndlawreview.org/wp-content/uploads/2013/05/NDL102_Bernstein.pdf

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