become more and more unlikely in civil cases as Daubert rulings have accumulated and courts increasingly expect litigators to understand their obligations.
The Daubert trilogy has dramatically changed the legal landscape with regard to expert witness testimony. The Supreme Court attempted in Daubert to articulate basic principles to guide trial judges in making decisions about the admissibility of complex scientific and technological expert testimony. Unfortunately, the Daubert trilogy has, in actuality, spawned a huge, and expensive, new subject of litigation and have left many procedural and substantive questions unanswered. Moreover, there are serious concerns about whether the guidelines enunciated by the Court have been interpreted by lower courts to limit, rather than respect, the discretion of trial judges to manage their complex cases, whether the guidelines conflict with the preference for admissibility contained in both the Federal Rules of Evidence and Daubert itself, and whether the guidelines have resulted in trial judges encroaching on the province of the jury to decide highly contested factual issues and to judge the overall credibility of expert witnesses and their scientific theories. Perhaps most disturbingly, there are serious concerns on the part of many scientists as to whether the courts are, as Daubert prescribed, making admissibility decisions—decisions that may well determine the ultimate outcome of a case—which are in fact “ground[ed] in the methods and procedures of science.”108
108. Daubert v. Merrill Dow Pharms., 509 U.S. at 579, 590 (1993).