Changes in the Standards for Admitting Expert Evidence in Federal Civil Cases since the Daubert Decision

By Lloyd Dixon; Brian Gill | Go to book overview

7
CONSEQUENCES OF MORE-WATCHFUL GATEKEEPING

The previous three sections describe indications we found that judges have become morewatchful gatekeepers for expert evidence since Daubert. These findings suggest that standards for reliability have tightened and that judges have examined challenged evidence more carefully with respect to other criteria as well. This section examines some of the consequences of this enhanced scrutiny. We first examine its effect on the proportion of challenged evidence excluded; we then examine its effect on one possible outcome when evidence is excludedsummary judgment. Finally, we examine changes in the types of evidence challenged.


7.1 TRENDS IN PROPORTION OF CHALLENGED EVIDENCE EXCLUDED

Findings

Table 7.1 shows the proportion of challenged expert evidence excluded when the evidence is found lacking in terms of reliability, relevance, qualifications, or other considerations. As can be seen, evidence rated negatively on any one of these criteria is almost always excluded, both prior to and after Daubert. Trends in the proportion of challenged evidence found lacking on the basis of one or more criteria thus closely mirror trends in the proportion of challenged evidence excluded.

Table 7.2 shows that slightly over one-half of the 601 challenged elements of evidence in our sample were excluded overall (see Raw Date columns).1 When case type, substantive area of evidence, and appellate circuit are held constant, the proportion of challenged evidence rises after Daubert and then falls (see last column of Table 7.2 and see Figure 7.1).2 The pattern mirrors the patterns for the proportion of evidence found unreliable (see Table 4.1) and for the proportions of evidence rated unfavorably on relevance and on expert qualifications (see Table 6.1).

____________________
1
If judges write opinions more frequently when evidence is excluded than when it is admitted, the proportion of all challenged evidence that is excluded will be less than the proportion reported here. (Data on the frequencies with which exclusions and admissions of evidence are written are not available.) What is important for our analysis, however, is whether the frequency wife which exclusions were written changed relative to the frequency with which admissions were written. For reasons discussed in Subsection 4.1, we doubt that such a change could explain the patterns we observed.
2
Our findings are consistent with those of Johnson, Krafka, and Cecil (2000) but inconsistent with those of Groscup et al. (2000). The latter study found no change in the exclusion rate post-Daubert, which may be due in part to differences between trial court and appellate court decisions and between civil and criminal cases.

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