Evidence Commons^™

Admissibility Of Scientific Evidence Under Daubert: The Fatal Flaws Of ‘Falsifiability’ And ‘Falsification’, Barbara P. Billauer Esq

barbara p billauer esq

Abstract: The Daubert mantra demands that judges, acting as gatekeepers, prevent para, pseudo or ‘bad’ science from infiltrating the courtroom. To do so, the Judges must first determine what “science” is? And then, what ‘good science’ is? It is submitted that Daubert is seriously polluted with the notions of Karl Popper who sets ‘falsifiability’ and ‘falsification’ as the demarcation line for that determination. This inapt philosophy has intractably infected case law, leading to bad decisions immortalized as stare decisis. Among other problems, is the intolerance of Popper’s system for multiple causation, a key component of toxic- torts. Thus, the primary …

Experts, Statistics, Science & Bad Science, Curtis E.A. Karnow

Curtis E.A. Karnow

Articles, books, and other online resources relating to expert testimony with a specific focus on problems with peer review, bad science, and statistics

The Increasing Use Of Challenges To Expert Evidence Under Daubert And Rule 702 In Patent Litigation, Douglas G. Smith

Journal of Intellectual Property Law

No abstract provided.

Daubert Debunked: A History Of Legal Retrogression A History Of Legal Retrogression And The Need To Reassess ‘Scientific Admissibility’, Barbara P. Billauer Esq

barbara p billauer esq

Abstract: With ‘novel’ scientific discoveries accelerating at an unrelenting pace, the need for accessible and implementable standards for evaluating the legal admissibility of scientific evidence becomes more and more crucial. As science changes, legal standards for evaluating ‘novel’ science must be plastic enough to respond to fast-moving changes. This, ostensibly, was the Daubert objective. Since it was decided in 1993, however, Daubert’s impact has been hotly contested -- with plaintiffs and defendants each claiming the decision unfairly favors the other side. New approaches are constantly suggested to deal with the perceived impact, although there is no uniform consensus of exactly …

The Trial Judge As Gatekeeper For Scientific Evidence: Will Ohio Rule Of Evidence 102 Frustrate The Ohio Courts' Role Under Daubert V. Merrell Dow?, Michael Lepp, Chrisopher B. Mcneil

Akron Law Review

This article considers the role of the trial court in responding to the changes wrought by scientific innovation. Particular consideration is given to the impact likely to be realized in Ohio trial courts from the decision of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.

[...]In order to appreciate the significance of Ohio Evidence Rule 102 in this context, it is helpful to first examine some of the events leading to Daubert, especially the application (and in some instances, the rejection) of Frye both in Ohio and at the federal level. Following that, this article will …

Can Post-Chicago Economics Survive Daubert?, Malcolm B. Coate, Jeffrey H. Fischer

Akron Law Review

In Section II of this Article, we review the Supreme Court’s standard for allowing expert testimony as explained in Daubert and related opinions, and discuss in detail the City of Tuscaloosa and Concord Boat decisions that, following Daubert, excluded the economic expert testimony on which the plaintiffs relied. Section III presents an overview of the Chicago School of Economics, which sets a foundation for our commentary on the Post-Chicago school and serves as a basis for the evaluation of Chicago-based testimony in Section V. Section IV discusses the Post-Chicago School approach to antitrust analysis as a refinement of the Chicago …

Daubert, Probabilities And Possibilities, And The Ohio Solution: A Sensible Approach To Relevance Under Rule 702 In Civil And Criminal Applications, Andrew W. Jurs

Akron Law Review

Probability for expert opinions is the correct standard for civil cases based on the preponderance of the evidence burden of proof. Among other effects, the probability requirement reduces jury speculation, avoids absurdity, appropriately adopts legal relevance as the standard for admission, and avoids negative effects on the out-of-courtroom practices of professionals. Expert opinions explaining possibilities, while inappropriate for civil case consideration, have Rule 702 relevance and are useful in criminal cases based upon the beyond a reasonable doubt burden of proof. Based on an evaluation of federal and state cases, Rule 702, and the purposes of expert testimony, the Ohio …

Is Limited Remand Required If The District Court Admitted Or Excluded Evidence Without A Daubert Analysis?, Robert B. Gilbreath

The Journal of Appellate Practice and Process

No abstract provided.

Evaluating The Evaluation: Reliance Upon Mental Health Assessments In Cases Of Alleged Child Sexual Abuse, Sarah F. Shelton

Nevada Law Journal

No abstract provided.

Dumping Daubert, Popping Popper And Falsifying Falsifiability: A Re-Assessment Of First Principles, Barbara P. Billauer Esq

barbara p billauer esq

Abstract: The Daubert mantra demands that judges, acting as gatekeepers, prevent para, pseudo or bad science from infiltrating the courtroom. To do so, the Judges must first determine what is ‘science’ and what is ‘good science.’ It is submitted that Daubert is deeply polluted with the notions of Karl Popper who sets ‘falsifiability’ and ‘falsification’ as the demarcation line for that determination. This philosophy has intractably infected case law, leading to bad decisions immortalized as stare decisis, and an unworkable system of decision-making, which negatively impacts litigant expectations. Among other problems is the intolerance of Popper’s system for multiple causation, …

Cell Phones, Brain Cancer, And Scientific Outliers In Murray V. Motorola, David H. Kaye

Journal Articles

Pending before the District of Columbia's highest court in a case asking whether cell phones can cause cancer is whether to replace the jurisdiction's venerable Frye standard for reviewing the admissibility of scientific evidence with the approach adopted by the U.S. Supreme Court in Daubert v. Merrell Dow. The author analyzes one aspect of the two evidentiary standards that leads him to question the trial judge's suggestion in Murray v. Motorola that adopting the Daubert perspective would allow greater leeway in excluding the plaintiff's evidence.