Flexible Standards, Deferential Review: Daubert's Legacy of Confusion

By Welch, Cassandra H. | Harvard Journal of Law & Public Policy, Summer 2006 | Go to article overview

Flexible Standards, Deferential Review: Daubert's Legacy of Confusion


Welch, Cassandra H., Harvard Journal of Law & Public Policy


I. INTRODUCTION

Expert evidence--particularly expert scientific evidence--has long been thought to require special treatment in the courtroom. (1) Concern about "junk science" and fear that jurors will be easily impressed by such evidence are two oft-cited reasons for giving special attention to expert testimony. (2) Addressing these concerns, the Supreme Court set the standard for the admissibility of expert testimony in the 1993 case of Daubert v. Merrell Dow Pharmaceuticals. (3) The holding of Daubert and two other cases, referred to as the "Daubert trilogy," (4) were later codified in Rule 702 of the Federal Rules of Evidence: (5)

   If scientific, technical, or other specialized knowledge will
   assist the trier of fact to understand the evidence or to determine
   a fact in issue, a witness qualified as an expert by
   knowledge, skill, experience, training, or education, may testify
   thereto in the form of an opinion or otherwise, if (1) the
   testimony is based upon sufficient facts or data, (2) the testimony
   is the product of reliable principles and methods,
   and (3) the witness has applied the principles and methods
   reliably to the facts of the case. (6)

The exact standard for the admission of expert testimony remains uncertain, and because evidentiary decisions under Daubert are reviewed only for abuse of discretion, courts have had little opportunity to reconsider or redefine the standard of admissibility. (7)

This Note argues that the flexible standard for admissibility of expert testimony and the abuse of discretion standard of review on appeal result in continued confusion about when expert testimony is reliable enough to be considered by the factfinder. Part II outlines the history of the Daubert trilogy. Part III describes the current application of Daubert, giving an example of how little guidance Daubert provides and elucidating the problems with the flexible approach and the deferential standard of appellate review. Part IV examines the practical application of the Daubert standards by judges across circuits, the debate on whether Daubert is liberal or conservative, and the confusion among scholars and jurists following the opinion. It also explores judges" confusion and their perceptions of their role as gatekeeper. Part V addresses the goals of both the Federal Rules of Evidence and Daubert and the ways the current approach to the admissibility of expert testimony fails to achieve those goals. Finally, this Note concludes that a more conservative standard is needed to provide guidance to judges when expert testimony is at issue and that more appellate oversight is necessary to ensure that expert testimony is appropriately reviewed and admitted or excluded.

II. THE DEVELOPMENT OF CURRENT STANDARDS: FROM FRYE TO THE DAUBERT TRILOGY

For seventy years following the decision of the Court of Appeals for the District of Columbia in Frye v. United States, (8) expert testimony based upon a scientific principle was inadmissible unless the principle had gained "general acceptance" in its field. (9) In Frye, the defense had sought to introduce an expert to testify to the results of a systolic blood pressure deception test--the precursor of the modern polygraph--to which the defendant had been subjected. (10) Citing no previous cases, the court held that the systolic blood pressure deception test had not achieved general acceptance within the fields of physiology and psychology and that expert testimony deduced from the test was therefore inadmissible. (11)

In the years after Frye, "sharp divisions" developed among the circuits about the proper standard for the admission of expert testimony, with some courts applying the Frye test and others rejecting it. The Supreme Court resolved the conflict in Daubert v. Merrell Dow Pharmaceuticals, Inc. (12) In Daubert, plaintiffs Jason Daubert and Eric Schuller, born with serious birth defects, had alleged that these defects were a result of their mothers' ingestion of the drug Bendectin and sought to introduce expert testimony that Bendectin could cause such defects. …

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