Law Commons^™

Climate Change Science And The Daubert Standard, Fred K. Morrison, Craig Manson, Matthew C. Wickersham

William & Mary Environmental Law and Policy Review

Climate change science attempts to predict the future based on complex modeling of potential levels of CO2, other greenhouse gases, manmade conditions, and naturally occurring events. Even the most widely cited analysis of climate change studies expressly acknowledges the limitations on accurately predicting the effects of climate change on anything other than a macro basis.1 These studies acknowledge substantial uncertainty in the prediction of climate change and its effects on a regional level, much less on a local level.2 Recent lawsuits brought by the State of Rhode Island; the counties of King (Washington), Marin (California), and San Mateo (California); the …

Conference On Best Practices For Managing Daubert Questions, Daniel J. Capra, David G. Campbell, Debra A. Livingston, James P. Bassett, Shelly Dick, Traci L. Lovitt, Thomas Marten, Kathryn N. Nester, Thomas D. Schroeder, Elizabeth J. Shapiro, Timothy Lau, Vince Chhabria, John Z. Lee, William H. Orrick Iii, Edmund A. Sargus Jr., Sarah A. Vance, Edward K. Cheng

Faculty Scholarship

This article is a transcript of the Philip D. Reed Lecture Series Conference on Best Practices for Managing Daubert Questions, held on October 25, 2019, at Vanderbilt Law School under the sponsorship of the Judicial Conference Advisory Committee on Evidence Rules. The transcript has been lightly edited and represents the panelists’ individual views only and in no way reflects those of their affiliated firms, organizations, law schools, or the judiciary.

Diamonds In The Rough: A Review Of Tiffany V. Costco And A Call To Apply Daubert To The Admissibility Of Consumer Survey Evidence In Trademark Infringement Litigation, Michael J. Borger

Touro Law Review

No abstract provided.

When Religious Belief Becomes Scientific Opinion: Burwell V. Hobby Lobby And The Unraveling Of Federal Rule 702, Meredith Rachel Mandell

Northwestern Journal of Law & Social Policy

No abstract provided.

How Sound Is The Science? Applying Daubert To Biomechanical Experts’ Injury Causation Opinions, Loren Peck

Washington and Lee Law Review

No abstract provided.

Dna Evidence: Probability, Population Genetics, And The Courts, David H. Kaye

David Kaye

To help meet the challenge of presenting properly performed DNA tests within the post-Daubert legal framework, this article outlines the statistical procedures that have been employed or proposed to provide judges and juries with quantitative measures of probative value, describes more fully how the courts have dealt with these procedures, and evaluates the opinions and the statistical analyses from the standpoint of the law of evidence.

Specifically, the article outlines the procedure used to declare whether two samples of DNA "match," and how shrinking the size of the "match window," as some defendants have urged, will decrease the risk of …

Defending Daubert: It's Time To Amend Federal Rule Of Evidence 702, David E. Bernstein, Eric G. Lasker

William & Mary Law Review

The 2000 amendments to Rule 702 sought to resolve the debate that had emerged in the courts in the 1990s over the proper meaning of Daubert by codifying the rigorous and structured approach to expert admissibility announced in the Daubert trilogy. Fifteen years later, however, the amendments have only partially accomplished this objective. Many courts continue to resist the judiciary’s proper gatekeeping role, either by ignoring Rule 702’s mandate altogether or by aggressively reinterpreting the Rule’s provisions.

Informed by this additional history of recalcitrance, the time has come for the Judicial Conference to return to the drafting table and finish …

The Hidden Daubert Factor: How Judges Use Error Rates In Assessing Scientific Evidence, John B. Meixner Jr., Shari Seidman Diamond

Scholarly Works

In Daubert v. Merrell Dow Pharmaceuticals, the United States Supreme Court provided a framework under which trial judges must assess the evidentiary reliability of scientific evidence whose admissibility is challenged. One factor of the Daubert test, the “known or potential rate of error” of the expert’s method, has received considerably less scholarly attention than the other factors, and past empirical study has indicated that judges have a difficult time understanding the factor and use it less frequently in their analyses as compared to other factors. In this paper, we examine one possible interpretation of the “known or potential rate of …

Torts And Innovation, Gideon Parchomovsky, Alex Stein

Michigan Law Review

This Essay exposes and analyzes a hitherto overlooked cost of tort law: its adverse effect on innovation. Tort liability for negligence, defective products, and medical malpractice is determined by reference to custom. We demonstrate that courts' reliance on custom and conventional technologies as the benchmark of liability chills innovation and distorts its path. Specifically, recourse to custom taxes innovators and subsidizes replicators of conventional technologies. We explore the causes and consequences of this phenomenon and propose two possible ways to modify tort law in order to make it more welcoming to innovation.

From The Wrong End Of The Telescope: A Response To Professor David Bernstein, Margaret A. Berger, Aaron D. Twerski

Michigan Law Review

On the pages of this law review, in an article entitled Uncertainty and Informed Choice: Unmasking Daubert, the authors argued for the recognition of a new product liability cause of action when drug companies fail to warn about uncertain risks attendant to the use of non-therapeutic drugs whose purpose is to enhance lifestyle. We noted that in the post-Daubert era, plaintiffs have faced increasing difficulty in proving that a given toxic agent was causally responsible for the injuries suffered after ingesting a drug. That plaintiffs cannot overcome the barriers to proving injury causation does not mean that defendants have met …

Learning The Wrong Lessons From "An American Tragedy": A Critique Of The Berger-Twerski Informed Choice Proposal, David E. Bernstein

Michigan Law Review

Margaret Berger and Aaron Twerski are among the leading scholars in their respective fields of Evidence and Products Liability. I have benefited from their work on many occasions. Precisely because of the deserved respect and esteem in which Berger and Twerski are held-not to mention the prominence of their forum, the Michigan Law Review-their proposal to create a new "informed choice" cause of action in pharmaceutical litigation is likely to receive sympathetic attention. Because I believe that their proposal is ill-conceived and dangerous, I feel compelled (with some trepidation) to write this response. Berger and Twerski propose that courts recognize …

Daubert & Danger: The "Fit" Of Expert Predictions In Civil Commitments, Alex Scherr

Scholarly Works

The opinions of experts in prediction in civil commitment hearings should help the courts, but over thirty years of commentary, judicial opinion, and scientific review argue that predictions of danger lack scientific rigor. The United States Supreme Court has commented regularly on the uncertainty of predictive science. The American Psychiatric Association has argued to the Court that "[t]he professional literature uniformly establishes that such predictions are fundamentally of very low reliability." Scientific studies indicate that some predictions do little better than chance or lay speculation, and even the best predictions leave substantial room for error about individual cases. The sharpest …

Daubert's Backwash: Litigation-Generated Science, William L. Anderson, Barry M. Parsons, Drummond Rennie

University of Michigan Journal of Law Reform

In the 1993 landmark case Daubert v. Merrell Dow Pharmaceuticals, the United States Supreme Court articulated its position on the admissibility of scientific evidence. The Court reasoned that federal judges should rely on the processes scientists use to identify unreliable research, including the process of peer review, to determine when scientific evidence should be inadmissible. In response, lawyers and their clients, seeking to rely on such evidence, have begun funding and publishing their own research with the primary intention of providing support to cases they are litigating. This Article examines the phenomenon of litigation-generated science, how it potentially undermines …

Conflicts Of Interest In Scientific Expert Testimony, Mark R. Patterson

William & Mary Law Review

No abstract provided.

"Yer Outa Here!" A Framework For Analyzing The Potential Exclusion Of Expert Testimony Under The Federal Rules Of Evidence, Stephen D. Easton

University of Richmond Law Review

It does not take long for even a casual observer of criminal and civil trials to make two observations about expert witnesses. The first of these observations comes almost immediately: experts are vitally important to the judicial process. In many trials, the outcome largely depends upon which set of impressively credentialed experts the jurors (and the judge) believe. The second observation generally comes later than the first: a significant amount of shoddy "science," phony logic, faulty analysis, sleight of hand, and other assorted junk enters the courtroom dressed up in the emperor's clothes of expert testimony.

The Assessment Of Expertise: Transcending Construction, Randolph N. Jonakait

Articles & Chapters

No abstract provided.

"Lies, Damned Lies, And Statistics"? Psychological Syndrome Evidence In The Courtroom After Daubert, Krista L. Duncan

Indiana Law Journal

No abstract provided.

Daubert And The Quest For Value-Free "Scientific Knowledge" In The Courtroom, Alexander Morgan Capron

University of Richmond Law Review

In a world that grows more technologically complex every day and in which scientific research continually expands both our understanding of, and our questions about, the operation of the natural and man-made world, it is hardly surprising that science should show up with increasing frequency in our court-rooms. Science itself is sometimes at issue, for example, in proceedings on allegations of scientific misconduct or in disputes over the ownership or patentability of technologies. But more frequently, science enters in aid of resolving a case in which a complex question of causation is at issue. To establish or rebut causation, each …

Substance And Form In Scientific Evidence: What Daubert Didn't Do, Samuel R. Gross

Book Chapters

On its face, Daubert v. Merrell Dow Pharmaceuticals was about as easy a case as the Supreme Court gets. The plaintiffs claimed that their birth defects were caused by the anti-nausea drug Bendectin, which their mothers had used during their gestation. In response to a motion for summary judgment by the defendant, the plaintiffs presented affidavits of eight expert witnesses who offered their opinions - based on a variety of studies - that Bendectin was indeed the culprit. The federal district court that heard the motion granted summary judgment to the defendant, and the Ninth Circuit affirmed. Both lower courts …

Evidence: Taylor V. State--Oklahoma Abandons The Frye Test And Forces Its State Court Judges To Enter The Twilight Zone, Paige Queen

Oklahoma Law Review

No abstract provided.

Substance And Form In Scientific Evidence: What Daubert Didn't Do, Samuel R. Gross

Book Chapters

On its face, Daubert v. Merrell Dow Pharmaceuticals was about as easy a case as the Supreme Court gets. The plaintiff claimed that their birth defect were caused by the anti-nausea drug Bendectin, which their mothers had used during their gestation. In response to a motion for summary judgment by the defendant, the plaintiff presented affidavits of eight expert witnesses who offered their opinion - based on a variety of studies- that Bendectin was indeed the culprit. The federal district court that heard the motion granted summary judgment to the defendant, and the Ninth Circuit affirmed. Both lower court held …

Clinging To History: The Supreme Court (Mis)Interprets Federal Rule Of Evidence 801(D)(1)(B) As Containing A Temporal Requirement, Christopher A. Jones

University of Richmond Law Review

The adoption of the Federal Rules of Evidence (the Rules) resulted in a more liberal standard for the admission and use of various forms of evidence. For example, the Rules altered the definition of "relevant evidence" increasing the scope of evidence that can be presented to a jury. Also, the Rules per- mit prior inconsistent statements to be admitted as substantive evidence rather than for impeachment purposes only. The Advisory Committee enunciated these changes, and other changes resulting from the adoption of the Rules, in their notes accompanying the Rules.

Expert Witness Testimony: Back To The Future, L. Timothy Perrin

University of Richmond Law Review

Expert witnesses are at once detested and treasured. The scorn is significant because of the increasingly prominent role experts play in both civil and criminal litigation. Experts are seen as mercenaries, prostitutes or hired guns, witnesses devoid of principle who sell their opinions to the highest bidder. Experts are not impartial professionals who explain difficult concepts to the trier of fact. Rather, experts become advocates for the side who hired them. The consequences of this role change are not desirable: experts testify to matters beyond their expertise, render opinions that are unreliable, speculative or outside what the experts would be …

Taking The Sizzle Out Of The Frye Rule: Daubert V. Merrell Dow Pharmaceuticals Opens The Door To Novel Expert Testimony, Kimberly Ann Satterwhite

University of Richmond Law Review

In Frye v. United States, the Court of Appeals of the District of Columbia affirmed a trial court's exclusion of lie detector test results on the ground that such tests had not been "generally accepted" by the scientific community. The Frye rule, or "general acceptance" standard, quickly became the dominant test for the admission of scientific evidence. Decided in 1923, Frye governed evidentiary decisions in a majority of federal circuits for the next seventy years. The adoption of the Federal Rules of Evidence in 1975, however, prompted several judges to question the validity of Frye. Since the enactment of the …

The Meaning Of Daubert And What That Means For Forensic Science, Randolph N. Jonakait

Articles & Chapters

No abstract provided.

The Dangers Of "General Observations" On Expert Scientific Testimony: A Comment On Daubert V. Merrell Dow Pharmaceuticals, Inc., Robert F. Blomquist

Kentucky Law Journal

No abstract provided.

Dna Evidence: Probability, Population Genetics, And The Courts, David H. Kaye

Journal Articles

To help meet the challenge of presenting properly performed DNA tests within the post-Daubert legal framework, this article outlines the statistical procedures that have been employed or proposed to provide judges and juries with quantitative measures of probative value, describes more fully how the courts have dealt with these procedures, and evaluates the opinions and the statistical analyses from the standpoint of the law of evidence.

Specifically, the article outlines the procedure used to declare whether two samples of DNA "match," and how shrinking the size of the "match window," as some defendants have urged, will decrease the risk of …

Much Ado About Nothing - The Supreme Court Still Fails To Solve The General Acceptance Problem Regarding Expert Testimony And Scientific Evidence , Joseph B. Spero

Journal of Law and Health

This paper will discuss and analyze the problem of scientific evidence and expert testimony from Frye v. United States to the new grounds for admissibility established by the Supreme Court of the United States in Daubert v. Merrell Dow Pharmaceuticals, Inc. This note will specifically focus on some of the changes made by the courts to the common law rule and follow its transformation to a more liberal standard within the federal court system. The paper will conclude that the courts have not really changed their position on the admissibility of scientific evidence and that their current criteria still are …

Chicken Little's Revenge: Strict Judicial Scrutiny Of Scientific Evidence, Scott Charles Walker

Cleveland State Law Review

This note focuses on the current controversy over admissibility standards for novel scientific testimony. It will trace the development of legal standards for expert witness admissibility from the common law through the adoption of the Federal Rules of Evidence and to the current trend of strict judicial scrutiny. In addition, this note will analyze the issues before the United States Supreme Court in Daubert and will argue, in spite of indications to the contrary, that the Court should not be too quick to continue tightening the judicial noose on scientific experts. Finally, this note will dispute the utility of amending …

Introduction Of Scientific Evidence In Criminal Cases, H. Patrick Furman

Publications

No abstract provided.