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2
Overview of Key
Supreme Court Decisions
The Daubert case was by no means the first proceeding in which the
courts had to struggle with the challenge of deciding when and
which scientific expertise is needed to decide a case. In the past 30
years there has been an increase in toxic tort litigation, that is, cases
in which the plaintiffs bringing the action allege that their injuries
or diseases have been caused by exposure to the defendant's
product or discharge. These cases have received a great deal of
attention, in part because they often involve claims of significant
injury, demands for large amounts of money, and allegations that
some of the expert testimony did not meet appropriate scientific
standards. Daubert was the first of three Supreme Court cases that
significantly shaped the way in which federal courts would evaluate
scientific testimony. All three cases centered on the admissibility of
expert testimony concerning the data required to establish causa-
tion, an exercise that involves synthesis of available evidence, and
all three cases recognized that expert testimony must be subject to
a strong and careful judicial gatekeeper function. The most recent
of the three, Kumho Tire Co. v. Carmichael, while involving causation,
was not a toxic tort case.
For 70 years, many federal courts relied on the general
acceptance standard laid out in Frye v. the United States (1923) to
determine the admissibility of expert testimony. Under the Frye
standard expert testimony is admissible only if its methodology is
"generally accepted" (i.e., a consensus has been reached) in the
relevant scientific community. The Daubert decision essentially
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DISCUSSIONS OF THE COMMITTEE ON DAUBERT STANDARDS
held that Frye did not survive the enactment of the Federal Rules
of Evidence, and interpreted Rule 702 of the Federal Rules of
Evidence as requiring that scientific expert testimony be grounded
in the methodology and reasoning of science (i.e., the expert must
show the underlying validity of his opinion). In finding that the
epidemiological and toxicological evidence offered by the plaintiff
experts was inadmissible, the lower court in Daubert had applied the
Frye general acceptance test. However, the Supreme Court spelled
out a new test for the admissibility of scientific evidence, aimed to
ensure that it "is not only relevant, but reliable."
The Daubert case was one of many in which plaintiffs
claimed that birth defects exhibited by their children were caused
by Bendectin, an anti-morning sickness pill that had been taken by
their mothers (and approximately 20 million other pregnant
women). In response to these suits, the defendant manufacturers
took the drug off the market even though it never lost its Food and
Drug Administration approval.
A central message of the Daubert decision was the Court's
designation of the trial judge as the gatekeeper, responsible for
screening expert testimony to determine whether the relevancy and
reliability requirements are met. In the second part of his majority
opinion, over the dissent of Chief Justice Rehnquist and Justice
Stevens, Justice Blackmun wrote that federal judges have a duty to
ensure that "an expert's testimony rests on a reliable foundation
and is relevant to the task at hand." He suggested that the reliabil-
ity of scientific testimony be judged using the following criteria: 1)
whether or not it could be tested and falsified; 2) whether it had
been subject to peer review and publication; 3) whehter there
existed known or potential rate of error and standards controlling
the technique's operation; and 4) whether or not it was generally
accepted within the scientific community. However, Blackmun
emphasized the flexible nature of this reliability requirement, a
point that would be reiterated in a later decision (Kumho). To satisfy
the reliability standard, the experts' opinion must be the product of
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Overview
scientific reasoning and methodology. This requirement reinforces
the concept of science as an empirical endeavor. The Court also
stated that the testimony must be relevant, that is, it must fit the
facts of the case. The expert may not testify about a hypothesis that
cannot be applied to the facts under consideration.
A second case provided courts with additional guidance. In
General Electric v. Joiner (1997) a plaintiff who was a longtime
smoker with a family history of lung cancer claimed the exposure to
polychlorinated biphenyls (PCBs) had promoted the development
of his small-cell lung cancer. Relying on the Daubert criteria (de-
scribed previously), the trial court excluded the plaintiff's expert
testimony and granted summary judgment. The intermediate
appellate court reversed the lower court decision. The Supreme
Court then held that in reviewing a trial judge's evidentiary ruling
an appellate court must use an abuse of discretion standard, which
requires the reviewing court to defer to the rulings of the trial court
unless they are clearly in error. The Court concluded that the trial
judge had not abused her discretion when she refused to admit the
plaintiff's expert testimony, because the claims of a causal connec-
tion between the exposure and the injury made by the expert
witness were too speculative.
A third opinion issued in 1999, Kumho, dealt with inadmis-
sibility of engineering testimony offered to prove defect and
causation in a product-liability action. In this case, the plaintiffs
claimed that the blowout of a defective tire on a minivan caused
death and serious injuries. The plaintiffs relied on testimony by an
expert in tire-failure analysis, who concluded that the tire must
have been defective due to the absence of a number of indicia of
abuse by the driver. The trial court concluded that the testimony
satisfied none of the four Daubert criteria and excluded it, granting
the defendants' motion for summary judgment. The appellate court
reversed, ruling that the Daubert standards did not extend to such
engineering evidence. The Supreme Court rejected this narrow
application of Daubert and directed the courts to use flexible
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DISCUSSIONS OF THE COMMITTEE ON DAUBERT STANDARDS
standards appropriate to different fields of expertise. The Kumho
opinion contemplated that in some cases some expert witnesses
may be permitted to testify based on expertise arising from their
experience. The objective of Daubert's gatekeeping requirement
said the Court "is to make certain that an expert, whether basing
testimony upon professional studies or personal experience,
employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field."
In toxic tort cases, the plaintiff normally must show (1)
plaintiff's exposure to a toxic substance for which the defendant is
responsible; (2) exposure to the toxic substance is known to cause
the type of injury suffered by the plaintiff (general causation); (3)
the toxic substance did in fact cause the plaintiff's injury (specific
causation); and (4) the extent of the injury to the plaintiff. Much of
the proof for each of the above elements (and especially 2 and 3),
must come in the form of expert testimony. Insistence on applying
Daubert to each element of expert testimony means the plaintiff
must make a detailed showing that the expert applies sound science
every step of the way.
When a trial judge excludes expert testimony, he or she
preempts the opportunity for a jury to consider the issue at hand. If
the judge excludes expert evidence that is essential to meeting a
party's burden in a case, the judge will also grant a motion for
summary judgment and terminate the litigation in favor of the
opponent of the excluded expert testimony. This means that the
case will not be heard by a jury. Under current law this is the correct
outcome if a party is unable to present admissible evidence on an
essential element of the case.
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Representative terms from entire chapter:
supreme court
