The Daubert Challenge:  Daubert v Merrell Dow Pharmaceuticals:
The Court's Ruling (Part III)

Parts I and II of our series of e-zines on the Daubert Challenge which is available at our website http://www.warren-group.com/archives.html.

As discussed in our previous e-zines, the plaintiff's in the Daubert case countered Merrell Dow's expert testimony with the testimony of eight experts. The trial court ruled the evidence presented by the plaintiff's experts did not meet the general acceptance test for admission. The Appeals court agreed and cited the Frye ruling.

The Supreme Court reversed the decision, stating that the Federal Rules of Evidence superseded the Frye test. The Supreme Court stated "no common law of evidence remains." Nothing in the new federal rules "establishes 'general acceptance' as an absolute prerequisite to admissibility." They also said that the general acceptance requirement of the Frye test is at odds with the 'liberal thrust' of the Federal Rules and their general approach of relaxing the traditional barriers to opinion testimony.

Those in favor of the general acceptance test argued that the ruling would open the floodgates to unfounded and unreliable evidence. They were afraid that juries would be misled and confused by evidence that was not generally accepted in the scientific community. The Court addressed these concerns by levying the task of managing the admission of reliable scientific evidence on the trial judge. The Court was charged with the role of gatekeeper, allowing admission of reliable scientific evidence and excluding less reliable evidence.

The Supreme Court ruled that there were four non-exclusive factors to be used when evaluating the expert's testimony. They form the basis of The Daubert ruling regarding expert witness testimony. They are:

1. Whether the theory can be tested.
2. Whether the theory or technique has been subjected to peer review as well as publication.
3. The potential rate of error.
4. The existence and maintenance of standard's controlling the technique's operation.

The Supreme Court was attempting to liberalize the ruling. However, the Daubert case actually "created a more stringent test for expert admissibility." After the Daubert ruling, the lower courts were inconsistently applying the ruling. Some courts very rigidly applied the ruling while others stated that Daubert only applied to scientists, saying it did not apply to engineers.

In 1999, the Supreme Court addressed these issues in Kumho Tire v. Carmichael - the topic of our next e-zine on our series on the Daubert challenge.