Working Paper No. 09-18:
The Unfinished Daubert Revolution

Author(s):

David Bernstein

Date Posted: March 2009

Availability:
Abstract (below) | Full text (most recent) on SSRN

Abstract:

The American judiciary traditionally had a laissez-faire approach toward the admissibility of most categories of expert testimony. This approach ended in federal courts when the U.S. Supreme Court adopted a reliability test for the admissibility of expert testimony in a series of three decisions:  Daubert v. Merrell Dow Pharmaceuticals, Inc., General Electric Co. v. Joiner, and Kumho Tire Co., Ltd., v. Carmichael. An amendment to Federal Rule of Evidence 702 in 2000 then codified a stringent interpretation of the "Daubert trilogy." Many states also have adopted some version of the Daubert reliability test.

Contrary to many early predictions, the consequences of Daubert v. Merrell Dow Pharmaceuticals and its progeny have been quite positive.  Contrary to pre-Daubert practice, all expert testimony is now scrutinized for reliability before admitted into court. The result has been a significant decline in the presentation of "quackspertise" in the courts.

Nevertheless, Daubert has several significant limitations.

First, many state courts have declined to adopt it, and have instead retained more liberal rules of admissibility, some of which amount to a "let-it-all-in" philosophy.

Second, some federal judges simply refuse to acknowledge the sea change that has occurred in the law of expert testimony, and continue to rely on older, more inclusionary precedents.

Third, Daubert has been ineffective in limiting the use of junk science by prosecutors in criminal cases. Finally, Daubert is a poor match for certain kinds of expert testimony. Specifically, Rule 702 and the Daubert trilogy are ill-equipped to deal with "connoisseur" testimony that arises from a legitimate field of expertise, but whose reliability is ultimately dependent on the personal credibility of the testifying expert.

This paper addresses each of these limitations in turn, and suggests that the relevant problems demand resolution before one can conclude that the Daubert revolution is complete.