Academic journal article The Review of Litigation

The History of Daubert and Its Effect on Toxic Tort Class Action Certification

Academic journal article The Review of Litigation

The History of Daubert and Its Effect on Toxic Tort Class Action Certification

Article excerpt


Should parties be able to oppose and discredit expert scientific evidence during a toxic tort class action certification proceeding by using the principles espoused in Daubert v. Merrell Dow Pharmaceuticals, Inc.?1 In Daubert, the Supreme Court provided a new standard for the admissibility of expert scientific evidence and attempted to resolve the past controversy surrounding IMAGE FORMULA207

"junk science."2 Although using Daubert to oppose scientific evidence during the actual trial is common, its role in class action certification proceedings remains uncertain. In toxic tort class actions especially, expert scientific evidence is often the only evidence available to prove whether a particular person was injured by a toxic substance and thus should be included as a class member.3

Since Daubert, federal and state courts have been called upon to exercise a "gate-keeping" function to assess the admissibility of scientific expert testimony.4 In Daubert, the Supreme Court held that judges must rule on the admissibility of expert scientific testimony by engaging in a two-part analysis.5 First, the judge must determine whether the expert's testimony reflects scientific knowledge, whether his or her findings are based on the scientific method, and whether his or her work product amounts to "good science."6 Second, the judge must ensure that the expert testimony is relevant and that it logically advances a material aspect of the party's case.7 The Court referred to this second prong as the "fit" requirement.8

Daubert has had an enormous effect on litigation requiring expert scientific testimony, especially with regard to toxic torts. In the class action context, however, courts have offered little clarity as to Daubert's role in certification proceedings.9 The controversy lies in the uncertainty as to whether an in-depth analysis of expert scientific evidence is appropriate during the class action certification process.10 Recently, the United States District Court for the Eastern District of New York held that Daubert's role in class action IMAGE FORMULA210

certification proceedings is limited.ll The court further held that Daubert's role in certification proceedings must be tailored to determine only whether the plaintiffs will meet the class action requirements of Rule 23 of the Federal Rules of Civil Procedure. 12

In most states, however, the admissibility of scientific evidence during class certification remains an unanswered question. Most courts believe that evaluating expert scientific evidence during certification proceedings will result in looking at the merits of the case, which is strongly prohibited by Rule 23.13 However, expert scientific evidence may have a substantial impact on the size of a class action, and some argue that a Daubert-like 14 principle is necessary to govern toxic tort class action certification.14

This Note focuses on the history of Daubert and its effects on toxic tort class actions. It discusses the fact that, for the most part, courts have found that the Daubert standard does not apply to certification proceedings. Finally, it argues that, in determining the size of class actions, the Daubert standard should be applied to determine the admissibility of scientific evidence. In order for a court to fairly determine whether plaintiffs have met the class action requirements of Rule 23, opposing counsel should be able to challenge, and even discredit, expert scientific evidence during certification proceedings with a Daubert-like principle.


A. The Frye Test

Before Daubert and Frye v. United States,15 courts dealt with scientific evidence in a laissez-faire manner and relied on rigorous cross-examination to discredit unscientific theories.16 Experts, IMAGE FORMULA215

however, brought with them impressive credentials that often blinded the jury as to the credibility of the scientific theories presented. …

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