Working Paper No. 13-21:
The Daubert Counterrevolution

Author(s):

David Bernstein

Date Posted: March 2013

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Abstract:

This Article reviews the history of the evolution of the rules for the admissibility of expert testimony since the 1980s, the revolutionary nature of what ultimately emerged, and the consistent efforts by counter-revolutionary judges to stop or roll back the changes, even when the changes were codified into Federal Rule of Evidence 702.

Part I reviews the law of expert testimony through the Supreme Court’s Daubert decision. Critics had charged for decades that the adversarial system was a failure with regard to expert testimony.

Parties to litigation, they argued, often presented expert testimony of dubious validity because it supported their positions, while lay juries were incapable of discerning which side had the better case. However, it took the rise of toxic tort litigation based on questionable causation theories and the attendant threat to multi-billion dollar industries to provoke a meaningful response from the courts, a sudden and dramatic shift toward stricter admissibility standards.

Part II describes the Daubert trilogy and the emergence of amended Rule 702. A pattern emerged of the Supreme Court attempting to strengthen the rules governing expert testimony, some lower courts resisting, and the Court responding by issuing a new opinion clarifying the courts’ new “gatekeeping” responsibilities. Eventually, an amendment to Federal Rule of Evidence 702 codified the Daubert trilogy, and did so with language that removed ambiguities and loopholes exploited by judges who had been inclined to try to evade the Court’s rulings.

Nevertheless, as Part III describes, some federal judges have continued to apply significantly more lenient standards for expert testimony than Rule 702 allows. They do so by ignoring the language of Rule 702, and instead relying on precedents from a bygone era. The First Circuit’s Milward opinion, described in detail in Part III, demonstrates many errors and fallacies common to judges who have chosen to resist the Daubert revolution.

The underlying issue theme tying the history of, and present controversy over, the admissibility of evidence in toxic tort litigation is a dispute over the underlying rationale for having special rules for the admissibility of expert testimony. Judges that favor more liberal rules for admissibility believe that the rules are meant to address only the problem “junk science”—scientific testimony that not only falls outside the scientific mainstream, but does so in the face of well-accepted contrary evidence.

More restrictive judges, by contrast, are addressing the broader problem of “adversarial bias” that results from our legal system allowing the parties to choose their own experts. In short, parties to litigation have a natural inclination to choose experts whose views match their theory of the case, even if those experts are outliers or hired guns. Rule 702 tries to limit this problem by insisting that experts show an objectively verifiable basis for their testimony, so that the trier of fact is not in the position of relying on the mere ipse dixit of an expert chosen solely because his views are consistent with the partisan position of a party to litigation.

This Article concludes by discussing some of the factors that have led some federal judges to defy Rule 702. The author contends that the Supreme Court should take an appropriate opportunity to crack down on such judicial rebellion, for two reasons. First, Rule 702 is the law of the land, and federal judges are obligated to enforce it regardless of their personal views on what expert testimony should be admissible. Second, Rule 702 represents a constructive effort to confront the problem of adversarial bias while retaining the basic contours of broader adversarial process.