A critical examination of the post-Daubert scientific evidence landscape

Food and Drug Law Journal

Volumn 52, Issue 2, 1997, Pages 225-251

  Kesan, Jay P ^a,b  

^a LLP   (United States)

^b US Ct Appeals the Fifth Circuit ^*  (United States)

Author keywords

[No Author keywords available]

Indexed keywords

BENDECTIN; COCAINE; DNA; GLUE;

BIRTH DEFECT; CONFERENCE PAPER; COURT; ELECTROMAGNETIC FIELD; EXPERT WITNESS; FORENSIC MEDICINE; GAS CHROMATOGRAPHY; HEALTH HAZARD; HUMAN; LAW SUIT; METHODOLOGY; MODEL; MORTALITY; RELIABILITY; SCIENCE; THEORY;

EXPERT TESTIMONY; HUMANS; LIABILITY, LEGAL; MALPRACTICE; MODELS, THEORETICAL; SCIENCE; UNITED STATES;

EID: 0030905170     PISSN: 1064590X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (205)

1. Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315 (9th Cir.) [hereinafter Daubert IV] (discussing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) [hereinafter Duabert III]), cert. denied, 116 S. Ct. 189 (1995).
2. Judicial Panel Discussion on Science and the Law, 25 CONN. L. REV. 1127, 1144 (1993) (quoting U.S. District Judge Covello of the District of Connecticut, on patent cases typically involving a lot of scientific factual issues).
3. Many federal judges believe Daubert has made their lives more difficult. They are going to have to give a more reasoned statement about why they are letting in evidence, They can't do it on a rubber-stamp basis the way some of them did it in the past. . . . After all, we're not scientists. We're in strange territory, and we want to do the best we can. Rorie Sherman, "Junk Science" Ride Used Broadly; Judges Learning Daubert, NAT'L L.J., Oct. 4, 1993, at 3 (quoting U.S. District Judge Weinstein of the Eastern District of New York); see also Craig v. Boren, 429 U.S. 190, 204 (1976) ("It is unrealistic to expect either members of the judiciary or state officials to be well versed in the rigors of experimental or statistical technique."); Ethyl Corp. v. EPA, 541 F.2d 1, 67 (D.C. Cir.) (Bazelon, C.J., concurring) ("[S]ubstantive review of mathematical and scientific evidence by technically illiterate judges is dangerously unreliable. . . ."), cert. denied, 416 U.S. 941 (1976); Judicial Panel Discussion on Science and the Law, supra note 2, at 1128 ("The reason that judges are in the courtroom is because they didn't want to study science and they had no interest in science and majored in something that had nothing to do with it . . . .")
4. Many federal judges believe Daubert has made their lives more difficult. They are going to have to give a more reasoned statement about why they are letting in evidence, They can't do it on a rubber-stamp basis the way some of them did it in the past. . . . After all, we're not scientists. We're in strange territory, and we want to do the best we can. Rorie Sherman, "Junk Science" Ride Used Broadly; Judges Learning Daubert, NAT'L L.J., Oct. 4, 1993, at 3 (quoting U.S. District Judge Weinstein of the Eastern District of New York); see also Craig v. Boren, 429 U.S. 190, 204 (1976) ("It is unrealistic to expect either members of the judiciary or state officials to be well versed in the rigors of experimental or statistical technique."); Ethyl Corp. v. EPA, 541 F.2d 1, 67 (D.C. Cir.) (Bazelon, C.J., concurring) ("[S]ubstantive review of mathematical and scientific evidence by technically illiterate judges is dangerously unreliable. . . ."), cert. denied, 416 U.S. 941 (1976); Judicial Panel Discussion on Science and the Law, supra note 2, at 1128 ("The reason that judges are in the courtroom is because they didn't want to study science and they had no interest in science and majored in something that had nothing to do with it . . . .")
5. See, e.g., Wells v. Ortho Pharm. Corp., 615 F. Supp. 262 (N.D. Ga. 1985), aff'd in part, rev'd in part, 788 F.2d 741 (11th Cir.), cert. denied, 479 U.S. 950 (1986); see also Marc S. Klein, After Daubert: Going Forward with Lessons from the Past, 15 CARDOZO L. REV. 2219 (1994). For a polemic attack on unreliable scientific expert testimony, see PETER W. HUBER, GALILEO'S REVENGE: JUNK SCIENCE IN THE COURTROOM (1991). Huber offers sensational examples of the abuse of science in the courtroom such as an alleged soothsayer who, "with the backing of expert testimony from a doctor and several police department officials," has won a $1,000,000 jury award due to the loss of her "psychic powers following a CAT scan." Id. at 3-4. For a vigorous critique of Huber's book, see Kenneth J. Chesebro, Galileo's Retort: Peter Huber's Junk Scholarship, 42 AM. U. L. REV. 1637 (1993).
6. See, e.g., Wells v. Ortho Pharm. Corp., 615 F. Supp. 262 (N.D. Ga. 1985), aff'd in part, rev'd in part, 788 F.2d 741 (11th Cir.), cert. denied, 479 U.S. 950 (1986); see also Marc S. Klein, After Daubert: Going Forward with Lessons from the Past, 15 CARDOZO L. REV. 2219 (1994). For a polemic attack on unreliable scientific expert testimony, see PETER W. HUBER, GALILEO'S REVENGE: JUNK SCIENCE IN THE COURTROOM (1991). Huber offers sensational examples of the abuse of science in the courtroom such as an alleged soothsayer who, "with the backing of expert testimony from a doctor and several police department officials," has won a $1,000,000 jury award due to the loss of her "psychic powers following a CAT scan." Id. at 3-4. For a vigorous critique of Huber's book, see Kenneth J. Chesebro, Galileo's Retort: Peter Huber's Junk Scholarship, 42 AM. U. L. REV. 1637 (1993).
7. See, e.g., Wells v. Ortho Pharm. Corp., 615 F. Supp. 262 (N.D. Ga. 1985), aff'd in part, rev'd in part, 788 F.2d 741 (11th Cir.), cert. denied, 479 U.S. 950 (1986); see also Marc S. Klein, After Daubert: Going Forward with Lessons from the Past, 15 CARDOZO L. REV. 2219 (1994). For a polemic attack on unreliable scientific expert testimony, see PETER W. HUBER, GALILEO'S REVENGE: JUNK SCIENCE IN THE COURTROOM (1991). Huber offers sensational examples of the abuse of science in the courtroom such as an alleged soothsayer who, "with the backing of expert testimony from a doctor and several police department officials," has won a $1,000,000 jury award due to the loss of her "psychic powers following a CAT scan." Id. at 3-4. For a vigorous critique of Huber's book, see Kenneth J. Chesebro, Galileo's Retort: Peter Huber's Junk Scholarship, 42 AM. U. L. REV. 1637 (1993).
8. See, e.g., Wells v. Ortho Pharm. Corp., 615 F. Supp. 262 (N.D. Ga. 1985), aff'd in part, rev'd in part, 788 F.2d 741 (11th Cir.), cert. denied, 479 U.S. 950 (1986); see also Marc S. Klein, After Daubert: Going Forward with Lessons from the Past, 15 CARDOZO L. REV. 2219 (1994). For a polemic attack on unreliable scientific expert testimony, see PETER W. HUBER, GALILEO'S REVENGE: JUNK SCIENCE IN THE COURTROOM (1991). Huber offers sensational examples of the abuse of science in the courtroom such as an alleged soothsayer who, "with the backing of expert testimony from a doctor and several police department officials," has won a $1,000,000 jury award due to the loss of her "psychic powers following a CAT scan." Id. at 3-4. For a vigorous critique of Huber's book, see Kenneth J. Chesebro, Galileo's Retort: Peter Huber's Junk Scholarship, 42 AM. U. L. REV. 1637 (1993).
9. Medical malpractice defendants, while taking the position that they do not have the burden of proof, often raise seriously questionable causation defenses before the jury. See, e.g., Dominguez v. St. John's Hosp., 632 N.E.2d 16 (1993) (Hospital defendants disputed that child's injuries were caused by a perinatal condition and instead claimed the child's brain damage was caused by a genetic condition. A geneticist testified for the defendants that his own tests of the child failed to detect any genetic disease, but justified his position on the basis that genetics is a complex, evolving science and the exact nature of the alleged genetic condition might be determined in the future.). See also Terrence J. Lavin, Seemingly No Side has a Monopoly on Junk Science, CHI. DAILY L. BULL., Feb. 22, 1994, at 6.
10. Paul S. Miller & Bert Rein, The End of Junk Science in the Courtroom?, LEGAL TIMES, Mar. 29, 1993, at 25.
11. Id.
12. In a three-city study of judges, jurors, experts, and lawyers in civil and criminal trials, 43% of the lawyers in the study acknowledged they shopped for experts, 65% thought their experts were willing to be coached about their testimony, 39% thought that experts would sway their testimony in favor of the side that was paying them, and 20% thought experts were hired guns who would say almost anything for a large enough fee. Daniel W. Shuman, Elizabeth Whitaker & Anthony Champagne, An Empirical Examination of the Use of Expert Witnesses in the Courts - Part II: A Three-City Study, 34 JURIMETRICS J. 193 (1994).
13. In 1901, Judge Learned Hand outlined a series of cases from the 14th to the 19th century involving expert testimony in areas as diverse as medicine, grammar, paternity, physics, and banking. Learned Hand, Historical and Practical Considerations Regarding Expert Testimony, 15 HARV. L. REV. 40, 42-49 (1901).
14. The ability of expert testimony to unduly influence a jury has been recognized for a long time. See id. at 50-52, Expert testimony has a heightened potential to sway a jury "because of its aura of special reliability and trustworthiness." United States v. Amarel, 488 F.2d 1148, 1152 (9th Cir. 1973). Juries often have a diminished capacity to assess the merits of expert testimony. See Laurence Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 71 HARV. L. REV. 1329, 1331 (1971).
15. The ability of expert testimony to unduly influence a jury has been recognized for a long time. See id. at 50-52, Expert testimony has a heightened potential to sway a jury "because of its aura of special reliability and trustworthiness." United States v. Amarel, 488 F.2d 1148, 1152 (9th Cir. 1973). Juries often have a diminished capacity to assess the merits of expert testimony. See Laurence Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 71 HARV. L. REV. 1329, 1331 (1971).
16. Hand, supra note 9, at 54.
17. Expert Witnesses Found Credible by Most Jurors, NAT'L L.J., Feb. 22, 1993, at S4.
18. Daubert III, 509 U.S. 579.
19. Frye v. United States, 293 F. 1013 (D.C Cir. 1923) (requiring that scientific expert testimony may be admitted only if the underlying scientific principle has gained "general acceptance" in the particular field in which it belongs).
20. Daubert III, 509 U.S. at 587.
21. Id, at 589.
22. BERTRAND A.W. RUSSELL, RELIGION AND SCIENCE 243 (1975).
23. See Marcia Coyle, Supreme Court to Examine Scientific Proof, NAT'L L.J., Feb. 1, 1993, at 1; Tony Mauro, Tort-Reform Week Looms at the Court, LEGAL. TIMES, Mar. 22, 1993, at 12.
24. See Marcia Coyle, Supreme Court to Examine Scientific Proof, NAT'L L.J., Feb. 1, 1993, at 1; Tony Mauro, Tort-Reform Week Looms at the Court, LEGAL. TIMES, Mar. 22, 1993, at 12.
25. Brief Amici Curiae of Nicolaas Bloembergen, et al., in Support of Respondents, Daubert III, 509 U.S. 579 (No. 92-102).
26. Brief Amici Curiae of the Chamber of Commerce of the United States of America in Support of Respondents, Daubert III, 509 U.S. 579 (No. 92-102).
27. Daubert III 509 U.S. at 582.
28. Id.
29. Epidemiology is a field of public health that studies the incidence, distribution, and etiology of disease in human populations. See Linda Bailey, Leon Gordis & Michael Green, Reference Guide on Epidemiology, in FEDERAL JUDICIAL CENTER, REFERENCE MANUAL ON SCIENTIFIC EVIDENCE (1994).
30. Daubert v. Merrell Dow Pharm., Inc., 727 F. Supp. 570, 571 (S.D. Cal. 1989) [hereinafter Daubert I], aff'd, 951 F.2d 1128 (9th Cir. 1991) [hereinafter Daubert II], vacated and remanded, Daubert III, 509 U.S. 579, aff'd, Daubert IV, 43 F.3d 1311 (1995).
31. Daubert III, 509 U.S. at 583.
32. See Daubert I, 727 F. Supp. at 575.
33. Daubert II, 951 F.2d at 1129-30.
34. Id. (quoting Reed v. State, 391 A.2d 364, 367 (Md. 1978)).
35. Daubert III, 509 U.S. at 585.
36. Id. at 587.
37. Justice Blackmun was joined by Justices White, O'Connor, Scalia, Kennedy, Souter, and Thomas. Chief Justice Rehnquist and Justice Stevens dissented.
38. Rule 702 states: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." FED. R. EVID. 702.
39. Daubert III, 509 U.S. at 596-97.
40. Id. at 589.
41. Id. at 590.
42. Id. at 592-93.
43. Id. at 595.
44. FED. R. EVID. 702.
45. Daubert III, 509 U.S. at 592.
46. Id. at 593-95.
47. See INTRODUCTORY READINGS IN THE PHILOSOPHY OF SCIENCE 16-17 (E.D. Klemke, Robert Hollinger & A. David Kline eds. 1988) (describing in a series of steps how scientific knowledge is acquired).
48. The Fifth Circuit and the Sixth Circuit, both on records similar to Daubert, had concluded that the evidence was admissible but insufficient. Turpin v. Merrell Dow Pharm., Inc., 959 F.2d 1349 (6th Cir. 1992); Brock v. Merrell Dow Pharm., Inc. 874 F.2d 307 (5th Cir. 1989). The First Circuit and the D.C. Circuit found the evidence to be inadmissible as opposed to admissible but insufficient. Ealy v. Richardson-Merrell, Inc., 897 F.2d 1159 (D.C. Cir. 1990); Richardson v. Richardson-Merrell, Inc., 857 F.2d 823 (D.C. Cir. 1988); Lynch v. Merrell - National Labs. Div. of Richardson-Merrell, Inc., 830 F.2d 1190 (1st Cir. 1987).
49. A teratogen is a substance capable of causing malformations (i.e., birth defects) in fetuses. See supra note 23.
50. Insufficiency means the evidence, as a threshold matter, is admissible, but the weight of the evidence is insufficient.
51. Indeed, both sides claimed victory in Daubert, Compare Paul M. Barrett, Justices Rule Against Business, WALL ST. J., June 29, 1993, at A3; Marcia Coyle, Supreme Court Eases Admissibility of Experts, NAT'L L.J., July 12, 1993, at 12; Supreme Court Says Judges Should Evaluate Scientific Testimony, 8 LIABILITY WEEK 27 (1993) (arguing Daubert was a setback for manufacturers because "junk science" now can get into the courtroom and sway juries) with Linda Greenhouse, Justices Put Judges in Charge of Deciding Reliability of Scientific Testimony, N.Y. TIMES, June 29, 1993, at A13; Thomas W. Kirby, Junking Bad Science, CONN. L. TRIE., Aug. 2, 1993, at 24.
52. Indeed, both sides claimed victory in Daubert, Compare Paul M. Barrett, Justices Rule Against Business, WALL ST. J., June 29, 1993, at A3; Marcia Coyle, Supreme Court Eases Admissibility of Experts, NAT'L L.J., July 12, 1993, at 12; Supreme Court Says Judges Should Evaluate Scientific Testimony, 8 LIABILITY WEEK 27 (1993) (arguing Daubert was a setback for manufacturers because "junk science" now can get into the courtroom and sway juries) with Linda Greenhouse, Justices Put Judges in Charge of Deciding Reliability of Scientific Testimony, N.Y. TIMES, June 29, 1993, at A13; Thomas W. Kirby, Junking Bad Science, CONN. L. TRIE., Aug. 2, 1993, at 24.
53. Indeed, both sides claimed victory in Daubert, Compare Paul M. Barrett, Justices Rule Against Business, WALL ST. J., June 29, 1993, at A3; Marcia Coyle, Supreme Court Eases Admissibility of Experts, NAT'L L.J., July 12, 1993, at 12; Supreme Court Says Judges Should Evaluate Scientific Testimony, 8 LIABILITY WEEK 27 (1993) (arguing Daubert was a setback for manufacturers because "junk science" now can get into the courtroom and sway juries) with Linda Greenhouse, Justices Put Judges in Charge of Deciding Reliability of Scientific Testimony, N.Y. TIMES, June 29, 1993, at A13; Thomas W. Kirby, Junking Bad Science, CONN. L. TRIE., Aug. 2, 1993, at 24.
54. Indeed, both sides claimed victory in Daubert, Compare Paul M. Barrett, Justices Rule Against Business, WALL ST. J., June 29, 1993, at A3; Marcia Coyle, Supreme Court Eases Admissibility of Experts, NAT'L L.J., July 12, 1993, at 12; Supreme Court Says Judges Should Evaluate Scientific Testimony, 8 LIABILITY WEEK 27 (1993) (arguing Daubert was a setback for manufacturers because "junk science" now can get into the courtroom and sway juries) with Linda Greenhouse, Justices Put Judges in Charge of Deciding Reliability of Scientific Testimony, N.Y. TIMES, June 29, 1993, at A13; Thomas W. Kirby, Junking Bad Science, CONN. L. TRIE., Aug. 2, 1993, at 24.
55. Indeed, both sides claimed victory in Daubert, Compare Paul M. Barrett, Justices Rule Against Business, WALL ST. J., June 29, 1993, at A3; Marcia Coyle, Supreme Court Eases Admissibility of Experts, NAT'L L.J., July 12, 1993, at 12; Supreme Court Says Judges Should Evaluate Scientific Testimony, 8 LIABILITY WEEK 27 (1993) (arguing Daubert was a setback for manufacturers because "junk science" now can get into the courtroom and sway juries) with Linda Greenhouse, Justices Put Judges in Charge of Deciding Reliability of Scientific Testimony, N.Y. TIMES, June 29, 1993, at A13; Thomas W. Kirby, Junking Bad Science, CONN. L. TRIE., Aug. 2, 1993, at 24.
56. See generally Margaret G. Farrell, Daubert v. Merrell Dow Pharmaceuticals, Inc.: Epistemology and Legal Process, 15 CARDOZO L. REV. 2183 (1994) (arguing that Daubert is an incoherent view that is neither positiv ist nor constructionist),
57. Daubert III, 509 U.S. at 590 ("In a case involving scientific evidence, evidentiary reliability will be based upon scientific validity.").
58. Id. at 593.
59. See supra notes 1-3 and accompanying text.
60. The Federal Judicial Center (FJC) has put out a 637-page Reference Manual on Scientific Evidence with separate chapters devoted to DNA evidence, epidemiology, toxicology, statistics, and economic damage estimations. See FEDERAL JUDICIAL CENTER, REFERENCE MANUAL ON SCIENTIFIC EVIDENCE (1994) [hereinafter REFERENCE MANUAL]. See also Sherman, supra note 3, at 3 (reporting that the Carnegie Commission on Science, Technology, and Government is putting together a training program with the FJC to help the judiciary cope with scientific evidence after Daubert).
61. The Federal Judicial Center (FJC) has put out a 637-page Reference Manual on Scientific Evidence with separate chapters devoted to DNA evidence, epidemiology, toxicology, statistics, and economic damage estimations. See FEDERAL JUDICIAL CENTER, REFERENCE MANUAL ON SCIENTIFIC EVIDENCE (1994) [hereinafter REFERENCE MANUAL]. See also Sherman, supra note 3, at 3 (reporting that the Carnegie Commission on Science, Technology, and Government is putting together a training program with the FJC to help the judiciary cope with scientific evidence after Daubert).
62. Petitioners' Reply Brief at 9, Daubert III, 509 U.S. 579 (No. 92-102) (arguing Rule 702 does not contain a foundational reliability threshold).
63. Id.
64. The consumer expectation test is used to determine defectiveness under strict liability in case of manufacturing defects in product liability actions, W. PAGE KEETON, DAVID G. OWEN, JOHN E. MONTGOMERY & MICHAEL D. GREEN, PRODUCT LIABILITY AND SAFETY - CASES AND MATERIALS 190-205 (2d ed. 1989).
65. See id. at 215.
66. This is the "post hoc ergo propter hoc" (after which, therefore because of which) fallacy. See David E Bernstein, The Admissibility of Scientific Evidence After Daubert v. Merrell Dow Pharmaceuticals, Inc., 15 CARDOZO L. REV. 2139 (1994) (illustrating post hoc reasoning with an example: If an infant receives a measles vaccination, and then develops a brain tumor shortly thereafter, post hoc reasoning would suggest that the vaccine caused the tumor).
67. Daubert III, 509 U.S. at 596.
68. John Locke (1632-1704), an English empiricist and moral and political philosopher, is widely regarded to be the father of empirical epistemology. 3 THE ENCYCLOPEDIA OF PHILOSOPHY 22 (Macmillan 1973).
69. ALBUREY CASTELL, AN INTRODUCTION TO MODERN PHILOSOPHY 202 (1943). The British trio of empiricists - John Locke, George Berkeley (1685-1753), and David Hume (1711-1776) - were united in their opposition to the "doctrine of innate ideas," 3 THE ENCYCLOPEDIA OF PHILOSOPHY 22 (Macmillan 1943).
70. 3 THE ENCYCLOPEDIA OF PHILOSOPHY, supra note 58, at 22-25 (quoting David Hume).
71. Sir Isaac Newton (1642-1727), an English mathematician and physicist, developed and refined the "scientific method" as we know it today. 5 THE ENCYCLOPEDIA OF PHILOSOPHY 489-91 (Macmillan 1973).
72. Locke's Essay Concerning Human Understanding was published in 1689 and Newton's Philosophiae Naturalis Principia Mathematica was published in 1687, 4 THE ENCYCLOPEDIA OF PHILOSOPHY 488 (Macmillan 1973); 5 THE ENCYCLOPEDIA OF PHILOSOPHY, supra note 60, at 490.
73. Newton's Philosophiae Naturalis Principia Mathematica, more commonly referred to as the Principia, was published in 1687 and was immediately and universally acclaimed. 5 THE ENCYCLOPEDIA OF PHILOSOPHY, supra note 60, at 490.
74. Newton used the word "hypothesis" to describe his ideas about the nature of light. Id.
75. Daubert III, 509 U.S. at 590.
76. The word "phenomenon" is used here generally to indicate any occurrence, circumstance, or fact that is perceptible by the senses.
77. For a detailed discussion of the scientific method, see Bert Black, Francisco J. Ayala & Carol Saffran-Brinks, Science and the Law in the Wake of Daubert: A New Search for Scientific Knowledge, 72 TEX. L. REV. 715 (1994); Bert Black, A Unified Theory of Scientific Evidence, 56 FORDHAM L. REV. 595 (1988).
78. For a detailed discussion of the scientific method, see Bert Black, Francisco J. Ayala & Carol Saffran-Brinks, Science and the Law in the Wake of Daubert: A New Search for Scientific Knowledge, 72 TEX. L. REV. 715 (1994); Bert Black, A Unified Theory of Scientific Evidence, 56 FORDHAM L. REV. 595 (1988).
79. This assumes that there is continued interest within the community of scientists who employ that methodology. Because scientific research is a human endeavor, continued interest in a particular area of science is a function of various political, social, and economic factors.
80. J. ORTEGA Y GASSET, THE REVOLT OF THE MASSES ch. XIV, 157 (1930) (Anon. trans. 1932).
81. The slope of the curve in the three phases follows an S-shaped pattern. Figure 1, however, does not quantitatively represent the rate of scientific progress in any of the three phases and simply illustrates broad trends in scientific development.
82. Patents are usually not a concern because, after applying for patent protection, the scientific results are published because the priority date given to the invention extends at least as far back as the filing date of the patent application. 35 U.S.C. § 154(a)(2).
83. For example, Louis Pasteur was led by chance to what is now a well-known method of immunization. An old bacterial culture was being used to inoculate fowls. The fowls became ill but did not die. Pasteur surmised that perhaps by using bacterial cultures with little virulence and then repeating the injections with cultures of greater virulence, the animals could be made to develop resistance to infection gradually. His theory proved correct. By testing and developing this procedure further, he was able to immunize sheep against anthrax and human beings against rabies. See NEW WORLDS OF MODERN SCIENCE 34-35 (Leonard Engel ed. 1956).
84. In another example, scientists studying the digestive function of the pancreas in dogs noticed a swarm of flies gathered around the urine of these animals, and this observation ultimately resulted in the discovery of insulin. Id.
85. See COMMITTEE ON THE CONDUCT OF SCIENCE, NATIONAL ACADEMY OF SCIENCES, ON BEING A SCIENTIST 5 (1989) (noting that scientists have developed methods such as double-blind trials, randomization of experimental subjects, and the proper use of controls to reduce individual subjectivity).
86. See id. at 11 (noting that actual replication is selective and reserved for experiments with unusual importance or for experiments which conflict with an accepted body of work).
87. Often the broader societal impact from a scientific finding is recognized at this stage. In other cases, the benefits derived from a significant breakthrough might be limited to just the relevant scientific community.
88. Morning Edition: Scientists Spot First Sunspot of New Solar Cycle (National Public Radio broadcast, Aug. 23, 1995) (quoting Dr. Hal Zearen, professor of astrophysics, California Institute of Technology).
89. For example, the diphenylamine test (commonly known as the paraffin test) was designed to detect gunshot residue on the hand of a person who recently has fired a weapon. The diphenylamine test for gun powder was introduced and accepted quickly by law enforcement agencies in the 1930s, The test, however, did not draw any serious scientific attention, and no detailed study of the test was performed, until 1967. The 1967 study found the test to be unreliable. Paul C. Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later, 80 COLUM. L. REV. 1197, 1224-25 (1980).
90. See James A. Martin, The Proposed "Science Court," 75 MICH. L. REV. 1058, 1064 (1977) (noting that nothing in the scientific method guarantees that hypotheses will be tested or when they will be tested).
91. While only a single example is discussed here, this process of development of scientific knowledge is commonplace through all of science. Two other examples that illustrate the same process are the development of controlled flight in space and the development of penicillin as an antibiotic. See 1 MCGRAW-HILL ENCYCLOPEDIA OF SCIENCE AND TECHNOLOGY 664, 686-87 (7th ed. 1992); Leonard Engel, The World of Science, in NEW WORLDS OF MODERN SCIENCE, supra note 71, at 17, 36-37, The history of cold fusion demonstrates that certain "scientific" experiments never will progress beyond the initial few isolated reports, and therefore, never will attain general acceptance. The history of cold fusion also illustrates how a few scientists can be profoundly wrong and cautions to look for repeatability of scientific results as an effective means to reduce individual subjectivity, . See John Crewdson, Tempest in a Test Tube: How Two Scientists Created the Brief but Disturbing Cold Fusion Frenzy, CHI. TRIB., Aug. 15, 1993; GARY TAUBES, BAD SCIENCE: THE SHORT LIFE AND WEIRD TIMES OF COLD FUSION (1993); James Gleick, A Cold Shoulder to Science, Los ANGELES TIMES, Aug. 22, 1993.
92. While only a single example is discussed here, this process of development of scientific knowledge is commonplace through all of science. Two other examples that illustrate the same process are the development of controlled flight in space and the development of penicillin as an antibiotic. See 1 MCGRAW-HILL ENCYCLOPEDIA OF SCIENCE AND TECHNOLOGY 664, 686-87 (7th ed. 1992); Leonard Engel, The World of Science, in NEW WORLDS OF MODERN SCIENCE, supra note 71, at 17, 36-37, The history of cold fusion demonstrates that certain "scientific" experiments never will progress beyond the initial few isolated reports, and therefore, never will attain general acceptance. The history of cold fusion also illustrates how a few scientists can be profoundly wrong and cautions to look for repeatability of scientific results as an effective means to reduce individual subjectivity, . See John Crewdson, Tempest in a Test Tube: How Two Scientists Created the Brief but Disturbing Cold Fusion Frenzy, CHI. TRIB., Aug. 15, 1993; GARY TAUBES, BAD SCIENCE: THE SHORT LIFE AND WEIRD TIMES OF COLD FUSION (1993); James Gleick, A Cold Shoulder to Science, Los ANGELES TIMES, Aug. 22, 1993.
93. While only a single example is discussed here, this process of development of scientific knowledge is commonplace through all of science. Two other examples that illustrate the same process are the development of controlled flight in space and the development of penicillin as an antibiotic. See 1 MCGRAW-HILL ENCYCLOPEDIA OF SCIENCE AND TECHNOLOGY 664, 686-87 (7th ed. 1992); Leonard Engel, The World of Science, in NEW WORLDS OF MODERN SCIENCE, supra note 71, at 17, 36-37, The history of cold fusion demonstrates that certain "scientific" experiments never will progress beyond the initial few isolated reports, and therefore, never will attain general acceptance. The history of cold fusion also illustrates how a few scientists can be profoundly wrong and cautions to look for repeatability of scientific results as an effective means to reduce individual subjectivity, . See John Crewdson, Tempest in a Test Tube: How Two Scientists Created the Brief but Disturbing Cold Fusion Frenzy, CHI. TRIB., Aug. 15, 1993; GARY TAUBES, BAD SCIENCE: THE SHORT LIFE AND WEIRD TIMES OF COLD FUSION (1993); James Gleick, A Cold Shoulder to Science, Los ANGELES TIMES, Aug. 22, 1993.
94. While only a single example is discussed here, this process of development of scientific knowledge is commonplace through all of science. Two other examples that illustrate the same process are the development of controlled flight in space and the development of penicillin as an antibiotic. See 1 MCGRAW-HILL ENCYCLOPEDIA OF SCIENCE AND TECHNOLOGY 664, 686-87 (7th ed. 1992); Leonard Engel, The World of Science, in NEW WORLDS OF MODERN SCIENCE, supra note 71, at 17, 36-37, The history of cold fusion demonstrates that certain "scientific" experiments never will progress beyond the initial few isolated reports, and therefore, never will attain general acceptance. The history of cold fusion also illustrates how a few scientists can be profoundly wrong and cautions to look for repeatability of scientific results as an effective means to reduce individual subjectivity, . See John Crewdson, Tempest in a Test Tube: How Two Scientists Created the Brief but Disturbing Cold Fusion Frenzy, CHI. TRIB., Aug. 15, 1993; GARY TAUBES, BAD SCIENCE: THE SHORT LIFE AND WEIRD TIMES OF COLD FUSION (1993); James Gleick, A Cold Shoulder to Science, Los ANGELES TIMES, Aug. 22, 1993.
95. See JAMES D. WATSON, NANCY H. HOPKINS, JEFFREY W. ROBERTS, JOAN A. STEITZ & ALAN M. WEINER, MOLECULAR BIOLOGY OF THE GENE 74 (4th ed. 1987).
96. Id. at 76.
97. See generally, 2 PAUL C. GIANNELLI & EDWARD J. IMWINKELRIED, SCIENTIFIC EVIDENCE § 18-2 (2d ed. 1993 & Supp. 1994).
98. Alex J. Jeffreys, Victoria Wilson & Swee Lay Thein, Hypervariable "Minisatellite" Regions in Human DNA, 314 NATURE 67 (Mar. 7, 1985) (DNA "fingerprints" will be of general use in human segregation analysis; it can be a powerful method for paternity and maternity testing and can be used in forensic applications).
99. See GIANNELLI & IMWINKELRIED, supra note 81, § 18-3 n.6 (listing scientific literature on DNA techniques for forensic applications).
100. Eric S. Lander, DNA Fingerprinting on Trial, 339 NATURE 501 (1989).
101. Richard C. Lewontin & Daniel L. Hartl, Population Genetics in Forensic DNA Typing, 254 SCIENCE 1745, 1749-50 (1991) (listing major problems with the calculations of the odds of obtaining a DNA match).
102. All Things Considered: Next Step in Simpson Trial Includes Hearing on DNA (National Public Radio broadcast, Jan. 2 1995) (quoting Linda F. Robertson, defense attorney in People v. Barney, 8 Cal. App. 4th 798 (1992)).
103. James E. Starrs, The Fallibility of Forensic DNA Testing: Of Proficiency in Public and Private Laboratories - Part One, 15 Scr. SLEUTHING REV. 10 (1990);
104. see generally GIANNELLI & IMWINKELRIED, supra note 81, § 18-4(A) (describing various DNA typing tests conducted by different laboratories).
105. NATIONAL RESEARCH COUNCIL, COMMITTEE ON DNA TECHNOLOGY IN FORENSIC SCIENCE, DNA TECHNOLOGY IN FORENSIC SCIENCE (1992). For a critique of the NRC report, see B. Devlin, Neil Risch, Kathryn Roeder, Statistical Evaluation of DNA Fingerprinting: A Critique of the NRC's Report, 259 SCIENCE 748 (1993) (arguing that the ceiling principle advocated by the NRC results in extremely conservative estimates of a DNA match).
106. NATIONAL RESEARCH COUNCIL, COMMITTEE ON DNA TECHNOLOGY IN FORENSIC SCIENCE, DNA TECHNOLOGY IN FORENSIC SCIENCE (1992). For a critique of the NRC report, see B. Devlin, Neil Risch, Kathryn Roeder, Statistical Evaluation of DNA Fingerprinting: A Critique of the NRC's Report, 259 SCIENCE 748 (1993) (arguing that the ceiling principle advocated by the NRC results in extremely conservative estimates of a DNA match).
107. There is a considerable amount of literature discussing the sources of error in DNA technology. David H, Kaye, DNA Evidence: Probability, Population Genetics, and the Courts, 7 HARV. J.L. & TECH. 101 (1993); Jonathan J. Koehler, Audrey Chia & Samuel Lindsey, The Random Match Probability in DNA Evidence: Irrelevant and Prejudicial?, 35 JURIMETRICS J. 201 (1995); Kenneth R. Kreiling, DNA Technology in Forensic Science, 33 JURIMETRICS J. 449 (1993); Gerald D. Robin, DNA Evidence in Court, CRIM. JUST., Fall 1994, at 9 (1994); Barry C. Scheck, DNA and Daubert, 15 CARDOZO L. REV. 1959 (1994).
108. There is a considerable amount of literature discussing the sources of error in DNA technology. David H, Kaye, DNA Evidence: Probability, Population Genetics, and the Courts, 7 HARV. J.L. & TECH. 101 (1993); Jonathan J. Koehler, Audrey Chia & Samuel Lindsey, The Random Match Probability in DNA Evidence: Irrelevant and Prejudicial?, 35 JURIMETRICS J. 201 (1995); Kenneth R. Kreiling, DNA Technology in Forensic Science, 33 JURIMETRICS J. 449 (1993); Gerald D. Robin, DNA Evidence in Court, CRIM. JUST., Fall 1994, at 9 (1994); Barry C. Scheck, DNA and Daubert, 15 CARDOZO L. REV. 1959 (1994).
109. There is a considerable amount of literature discussing the sources of error in DNA technology. David H, Kaye, DNA Evidence: Probability, Population Genetics, and the Courts, 7 HARV. J.L. & TECH. 101 (1993); Jonathan J. Koehler, Audrey Chia & Samuel Lindsey, The Random Match Probability in DNA Evidence: Irrelevant and Prejudicial?, 35 JURIMETRICS J. 201 (1995); Kenneth R. Kreiling, DNA Technology in Forensic Science, 33 JURIMETRICS J. 449 (1993); Gerald D. Robin, DNA Evidence in Court, CRIM. JUST., Fall 1994, at 9 (1994); Barry C. Scheck, DNA and Daubert, 15 CARDOZO L. REV. 1959 (1994).
110. There is a considerable amount of literature discussing the sources of error in DNA technology. David H, Kaye, DNA Evidence: Probability, Population Genetics, and the Courts, 7 HARV. J.L. & TECH. 101 (1993); Jonathan J. Koehler, Audrey Chia & Samuel Lindsey, The Random Match Probability in DNA Evidence: Irrelevant and Prejudicial?, 35 JURIMETRICS J. 201 (1995); Kenneth R. Kreiling, DNA Technology in Forensic Science, 33 JURIMETRICS J. 449 (1993); Gerald D. Robin, DNA Evidence in Court, CRIM. JUST., Fall 1994, at 9 (1994); Barry C. Scheck, DNA and Daubert, 15 CARDOZO L. REV. 1959 (1994).
111. There is a considerable amount of literature discussing the sources of error in DNA technology. David H, Kaye, DNA Evidence: Probability, Population Genetics, and the Courts, 7 HARV. J.L. & TECH. 101 (1993); Jonathan J. Koehler, Audrey Chia & Samuel Lindsey, The Random Match Probability in DNA Evidence: Irrelevant and Prejudicial?, 35 JURIMETRICS J. 201 (1995); Kenneth R. Kreiling, DNA Technology in Forensic Science, 33 JURIMETRICS J. 449 (1993); Gerald D. Robin, DNA Evidence in Court, CRIM. JUST., Fall 1994, at 9 (1994); Barry C. Scheck, DNA and Daubert, 15 CARDOZO L. REV. 1959 (1994).
112. Daubert III, 509 U.S. at 587-88.
113. On remand in Daubert, Judge Kozinski stated that "scientists often have vigorous and sincere disagreements as to what research methodology is proper . . . [and o]ur responsibility . . . is to resolve [these] disputes among respected, well-credentialed scientists . . . ." Daubert IV, 43 F.3d at 1316.
114. The trial judge decides that it either amounts to scientific knowledge or it does not.
115. Tycho Brahe (1546-1601), a Danish astronomer and contemporary of Galileo Galilei (1564-1642), built the world's greatest astronomical laboratory of his time. He made reliable records of his celestial observations and determined that the orbit of a comet was elongated (i.e., ellipsoidal) and not circular, as thought by Aristotle and his contemporaries. He was profoundly wrong, however, in rejecting the heliocentric Copernican view of the universe. ERNEST E. SNYDER, HISTORY OF THE PHYSICAL SCIENCES, 29-30, 112 114 (1969).
116. Galileo Galilei was convinced that the Copernican heliocentric view of the universe was correct. In 1633 he was convicted by the Roman Inquisition for his belief that the earth moved and the sun stood still. At the age of 70, Galileo chose to recant his views in order to escape torture. See id. at 32.
117. Psychologists state that people tend to see what they expect to see and often fail to observe what they believe should not be there. This is, of course, true for scientists as well and the risk of self-deception among scientists is a real one. See COMMITTEE ON THE CONDUCT OF SCIENCE, supra note 72, at 4.
118. Daubert III, 509 U.S. at 597.
119. Id. at 596.
120. Id.
121. See, e.g., Black, Science and the Law, supra note 66, at 786-87 (noting that most scientific evidence will survive the admissibility screening process); see also David O. Stewart, Decision Creates Uncertain Future for Admissibility of Expert Testimony, A.B. A. J., Nov. 1993, at 48-51 (quoting Professor Michael H. Gottesman as saying that Daubert "will inevitably make the admission of scientific evidence easier in those circuits that ha[d] adopted the Frye rule.")
122. See, e.g., Black, Science and the Law, supra note 66, at 786-87 (noting that most scientific evidence will survive the admissibility screening process); see also David O. Stewart, Decision Creates Uncertain Future for Admissibility of Expert Testimony, A.B. A. J., Nov. 1993, at 48-51 (quoting Professor Michael H. Gottesman as saying that Daubert "will inevitably make the admission of scientific evidence easier in those circuits that ha[d] adopted the Frye rule.")
123. An inflammatory disorder of the muscles involving both the upper and lower extremities. Cella v. United States, 998 F.2d 418, 420 (7th Cir. 1993).
124. Id. at 425-29.
125. Hopkins v. Dow Corning Corp., 33 F.3d 1116, 1125 (9th Cir. 1994).
126. Post-traumatic stress disorder evidence has been admitted even if it has only a fair degree of acceptance in the community. Isley v. Capuchin Province, 877 F. Supp. 1055, 1065-66 (E.D. Mich. 1995). Expert testimony linking the drug Provera, a progestin, to birth defects was determined to have satisfied Daubert even though general acceptance of the expert's theory was debatable, Grismer v. Upjohn Co., 1995 WL 390053, at *1, *4 (KD, III. June 26, 1995). In a criminal case, the Tenth Circuit affirmed the admission of a forensic chemist's testimony regarding tests he had conducted to determine the presence of cocaine base in a paper sack and noted that general acceptance of the expert's test methods was not a precondition to admissibility under Daubert. United States v. Muldrow, 19 F.3d 1332, 1337 (10th Cir. 1994).
127. United States v. Dorsey, 45 F.3d 809, 812 (4th Cir. 1995) (testimony of two forensic anthropologists about comparisons between surveillance photographs and recent photographs of the defendant and his boots was offered as part of a mistaken identity defense).
128. Berry v. City of Detroit, 25 F.3d 1342, 1348-53 (6th Cir. 1993) (expert's "discipline theory" was offered to show that the failure to properly discipline police officers was the proximate cause of the victim's shooting death by a police officer).
129. O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1106-07 (7th Cir. 1994).
130. Porter v. Whitehall Labs., 9 F.3d 607, 614-15 (7th Cir. 1993).
131. Bradley v. Brown, 42 F.3d 434, 438-39 (7th Cir. 1994) (expert testimony concerning multiple chemical sensitivity disorder excluded as mere opinion testimony); Diaz v. Johnson Matthey, Inc., 1995 WL 455559, at *1, *6, *15-17 (D.N.J. 1995) (expert testimony concerning the development of platinum allergy from exposure to platinum salts excluded as mere opinion testimony); Cavallo v. Star Enter., 1995 WL 410750, at *1, *12 (E.D. Va. 1995) (expert testimony concerning the development of chronic respiratory illnesses from exposure to aviation jet fuel excluded as mere opinion testimony); Chikovsky v. Ortho Pharm. Corp., 832 F. Supp. 341, 346 (S.D. Fla. 1993) (expert testimony concerning the propensity of acne cream Retin-A to cause birth defects excluded as mere opinion testimony); Hayes v. Raytheon Co., 808 F. Supp. 1326, 1330-31 (N.D Ill. 1992) (expert testimony concerning the emission of cancer-causing radiation from video display terminals excluded as mere opinion testimony) (pre-Daubert case where the court's analysis closely follows the methodology-driven focus of Daubert). See also Eggar v. Burlington N. R.R., 1991 WL 315487 (D. Mont. 1991) (pre-Daubert case involving fundamentally unsupported and speculative expert testimony claiming various illnesses as a result of exposure to chemicals).
132. 1995 WL 447598 (2d Cir. 1995).
133. Id. at *5. See also McLain v. Tulane Fleeting Inc., 1995 WL 2272 (E.D. La. 1995), where the courtconcluded that a treating physician's opinion that the plaintiff's development of Guillain-Barre (G-B) Syndrome was caused by a tetanus shot, based on his own tests and observations and his knowledge and training, satisfied Daubert. The court reasoned that although no epidemiological study (the court did refer to a single medical publication discussing how the tetanus toxoid vaccine may precipitate the G-B Syndrome in patients who are hypersensitive to the tetanus antigen) linked the triggering of the G-B Syndrome to persons receiving a diphtheria-tetanus shot, Daubert did not require that the subject of the scientific testimony be known with certainty.
134. See Smith v. Borg, 1 F.3d 1247 (9th Cir. 1993).
135. Pioneer Hi-Bred Int'l v. Holden Found. Seeds, Inc., 35 F.3d 1226 (8th Cir. 1993).
136. Giannelli, supra note 76, at 1214 n.118; James E. Starrs, Frye v. United States Restructured and Revitalized: A Proposal to Amend Federal Evidence Rule 702, 26 JURIMETRICS 249, 258 (1986).
137. Giannelli, supra note 76, at 1214 n.118; James E. Starrs, Frye v. United States Restructured and Revitalized: A Proposal to Amend Federal Evidence Rule 702, 26 JURIMETRICS 249, 258 (1986).
138. 3 F.3d 769 (4th Cir. 1993).
139. Id. at 773.
140. See Gordon H. Barland, The Polygraph Test in the USA and Elsewhere, in THE POLYGRAPH TEST: LIES, TRUTH AND SCIENCE 73 (Anthony Gale ed. 1988) (providing a historical development of the polygraph).
141. See Annotation, Physiological or Psychological Deception Test, 34 A.L.R. 147 (1925) (listing several scientific and legal publications between 1917 and 1922 on rudimentary polygraph testing); see also Case Note, 37 HARV. L. REV. 1138 (1924).
142. At the time of Frye, the only physiological response detected was blood pressure. Modern polygraph instrumentation, in contrast, detects changes in blood pressure, pulse, thoracic and abdominal respiration, and galvanic skin response.
143. See generally 1 GIANNELLI & IMWINKELREID, supra note 81, § 8-2(A) (reviewing polygraph testing).
144. See 22 CHARLES A. WRIGHT & KENNETH W. GRAHAM, FEDERAL PRACTICE AND PROCEDURE § 5169, at 92 n.2, 95 n.7 (1978).
145. United States v. Posado, 57 F.3d 428, 434 n.9 (5th Cir. 1995); 1 GIANNELLI & IMWINKELREID, supra note 81, § 8-2(A).
146. Compare Bennett v. City of Grand Prairie, 883 F.2d 400, 405 (5th Cir. 1989) (stating that polygraph exams by most accounts correctly detect truth or deception 80% to 90% of the time) with 1 GIANNELLI & IMWINKELREID, supra note 81, § 8-2(C) (quoting a 1983 Office of Technology Assessment study reporting correct guilty detections ranging from 17% to 100%), Posado, 57 F.3d at 433 n.7.
147. See Janet Seiberg, Judge Rejects Requests to Reassess Admissibility of Polygraphs, CONN. L. TRIB., Dec. 6, 1993, at 7.
148. See Annotation, Physiological or Psychological Truth and Deception Tests, 23 A.L.R.2d 1306, 1308 (1952 & Supps. 1982 & 1987).
149. See United States v. Ridling, 350 F. Supp. 90 (E.D. Mich. 1972); United States v. Hart, 344 F. Supp. 522 (E.D.N.Y. 1971); see also Giannelli, supra note 76, at 1198-99 n.8, 1320 n.258.
150. Posado, 57 F.3d at 434.
151. Id. at 433-36.
152. United States v. Black, 831 F. Supp. 120, 123 (E.D.N.Y. 1993). In holding polygraph evidence to be inadmissible under Daubert, this court referred to two pre-Daubert Second Circuit cases, United States v. Rea, 958 F.2d 1206 (2d Cir. 1991) and United States v. Bortnovsky, 879 F.2d 30 (2d Cir. 1989). Neither of these two Second Circuit cases, however, performed a Daubert-like gatekeeping analysis. The two cases did not analyze polygraph testing methodology or even refer to any scientific publications on polygraph testing. Disappointingly, in reaching its conclusions, this court did not hold any Daubert hearing or review polygraph testing using any of the Daubert gatekeeper factors.
153. See United States v. Lech, 895 F. Supp. 582, 585 (S.D.N.Y. 1995).
154. Id. at 586 (quoting United States v. Williams, 583 F.2d 1194, 1199 n.9 (2d Cir. 1979)).
155. Id.
156. Id. at 585. Expert testimony on eyewitness identification has been similarly excluded, without addressing whether the testimony amounts to scientific knowledge, as not being helpful to the jury under the second prong of Daubert (i.e., the helpfulness part of Rule 702). See United States v. Benyamen 39 F.3d 1188 (9th Cir. 1994); United States v. Rincon, 28 F.3d 921 (9th Cir. 1994).
157. Conti v. Commissioner, 39 F.3d 658, 662 (6th Cir 1994).
158. Id.
159. United States v. Rodriguez, 37 M.J. 448, 451-52 (C.M.A. 1993) (remanding for a determination of reliability of polygraph testing under Daubert).
160. The most common claims alleging impact from EMF are personal injury suits, diminution-in-value actions by landowners against utilities, and requests to declare certain facilities nuisances. Substantial scientific work has been conducted and published in the United States and abroad concerning the health Hazards posed by occupational and nonoccupational exposure to EMF, and because these studies have reached opposite conclusions, they provide ammunition for parties on both sides. Scandinavian scientists have found a statistically significant association between leukemia in children and EMF from high-voltage power lines. Interagency reports from the federal government and another study on EMF by a universities consortium found no persuasive evidence of a direct link between EMF exposure and adverse human health effects. See Scott H. Strauss, The Big Uncertainty Over EMF, CONN. L. TRIB., Dec. 6, 1993, at 20. Since 1985 over a hundred EMF lawsuits have been filed in the United States. Roland A. Giroux, Note, Daubert v. Merrell Dow: Is This Just What the EMF Doctor Ordered?, 12 PACE ENVTL. L. REV. 393 (1994). In 1993, in the first EMF personal injury trial in state court in California, the court admitted the EMF expert testimony over defendant's objection that this data was inadmissible under Frye. Zuidema v. San Diego Gas & Elec., No. 638-222 (Super. Ct. San Diego County 1993); San Diego Gas & Elec. v. Superior Court, 36 Cal. App. 4th 1461 (1995). One federal court recently has reviewed EMF expert testimony under Daubert. United States v. 0.59 Acres, 1997 U.S. App. LEXIS 6228 (9th Cir. 1997) (excluding lay opinion testimony about the effects of EMF under Daubert). Nevertheless, EMF testimony is not likely to be excluded under the scientific knowledge prong of Daubert.
161. 52 F.3d 1124 (2d Cir. 1995).
162. Id. at 1128-29.
163. Id. at 1129.
164. Id. at 1134.
165. Id. at 1126-135.
166. 7 F.3d 235 (6th Cir. 1993).
167. Id. at 235.
168. Evidence can be excluded as unhelpful under either the second prong of Daubert or Rule 403.
169. See supra notes 42-44 and accompanying text.
170. The term "methodology" refers to a body of principles, practices, procedures, and rules used in a discipline or an inquiry. A narrower definition of methodology that refers only to the underlying scientific principles in a discipline and not to the procedures employed in a particular case would not be in keeping with the spirit of the scientific validity/reliability inquiry contemplated by Daubert.
171. Daubert III, 509 U.S. at 595.
172. In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 746 (3d Cir. 1994), cert. denied, 115 S. Ct. 1253 (1995).
173. See REFERENCE MANUAL, supra note 50.
174. See Margaret A, Berger, Evidentiary Framework in REFERENCE MANUAL, supra note 50, at 37. This chapter was designed to "assist judges in structuring inquiries necessary for making rulings on objections to expert evidence." Rorie Sherman, Judges' Manual Irks Plaintiff Bar, NAT'L L.J., Aug. 1, 1994, at A6 (quoting Joe S. Cecil, Project Director, FJC Research Division). The Association of Trial Lawyers of America (ATLA) and the plaintiffs' bar criticized the chapter as being biased toward favoring the exclusion of evidence. See, e.g., Eva M. Rodriguez, The Stale of Scientific Evidence, LEGAL TIMES, Dec. 12, 1994, at 6 (reporting criticisms from plaintiffs' bar groups that the FJC's Manual is one-sided and miseducates judges); Thom Weidlich, Plaintiff's Bar Loses Bid to Sway Science Manual NAT'L L.J., Dec. 26, 1994, at A11 (reporting that the FJC's board had considered ATLA's objections and voted to reject them). See also Kenneth J. Chesebro, Taking Daubert's "Focus" Seriously: The Methodology/Conclusion Distinction, 15 CARDOZO L. REV. 1745 (1994) (arguing that Daubert is most coherently understood by concentrating on the methodology/conclusion distinction).
175. See Margaret A, Berger, Evidentiary Framework in REFERENCE MANUAL, supra note 50, at 37. This chapter was designed to "assist judges in structuring inquiries necessary for making rulings on objections to expert evidence." Rorie Sherman, Judges' Manual Irks Plaintiff Bar, NAT'L L.J., Aug. 1, 1994, at A6 (quoting Joe S. Cecil, Project Director, FJC Research Division). The Association of Trial Lawyers of America (ATLA) and the plaintiffs' bar criticized the chapter as being biased toward favoring the exclusion of evidence. See, e.g., Eva M. Rodriguez, The Stale of Scientific Evidence, LEGAL TIMES, Dec. 12, 1994, at 6 (reporting criticisms from plaintiffs' bar groups that the FJC's Manual is one-sided and miseducates judges); Thom Weidlich, Plaintiff's Bar Loses Bid to Sway Science Manual NAT'L L.J., Dec. 26, 1994, at A11 (reporting that the FJC's board had considered ATLA's objections and voted to reject them). See also Kenneth J. Chesebro, Taking Daubert's "Focus" Seriously: The Methodology/Conclusion Distinction, 15 CARDOZO L. REV. 1745 (1994) (arguing that Daubert is most coherently understood by concentrating on the methodology/conclusion distinction).
176. See Margaret A, Berger, Evidentiary Framework in REFERENCE MANUAL, supra note 50, at 37. This chapter was designed to "assist judges in structuring inquiries necessary for making rulings on objections to expert evidence." Rorie Sherman, Judges' Manual Irks Plaintiff Bar, NAT'L L.J., Aug. 1, 1994, at A6 (quoting Joe S. Cecil, Project Director, FJC Research Division). The Association of Trial Lawyers of America (ATLA) and the plaintiffs' bar criticized the chapter as being biased toward favoring the exclusion of evidence. See, e.g., Eva M. Rodriguez, The Stale of Scientific Evidence, LEGAL TIMES, Dec. 12, 1994, at 6 (reporting criticisms from plaintiffs' bar groups that the FJC's Manual is one-sided and miseducates judges); Thom Weidlich, Plaintiff's Bar Loses Bid to Sway Science Manual NAT'L L.J., Dec. 26, 1994, at A11 (reporting that the FJC's board had considered ATLA's objections and voted to reject them). See also Kenneth J. Chesebro, Taking Daubert's "Focus" Seriously: The Methodology/Conclusion Distinction, 15 CARDOZO L. REV. 1745 (1994) (arguing that Daubert is most coherently understood by concentrating on the methodology/conclusion distinction).
177. See Margaret A, Berger, Evidentiary Framework in REFERENCE MANUAL, supra note 50, at 37. This chapter was designed to "assist judges in structuring inquiries necessary for making rulings on objections to expert evidence." Rorie Sherman, Judges' Manual Irks Plaintiff Bar, NAT'L L.J., Aug. 1, 1994, at A6 (quoting Joe S. Cecil, Project Director, FJC Research Division). The Association of Trial Lawyers of America (ATLA) and the plaintiffs' bar criticized the chapter as being biased toward favoring the exclusion of evidence. See, e.g., Eva M. Rodriguez, The Stale of Scientific Evidence, LEGAL TIMES, Dec. 12, 1994, at 6 (reporting criticisms from plaintiffs' bar groups that the FJC's Manual is one-sided and miseducates judges); Thom Weidlich, Plaintiff's Bar Loses Bid to Sway Science Manual NAT'L L.J., Dec. 26, 1994, at A11 (reporting that the FJC's board had considered ATLA's objections and voted
178. See Margaret A, Berger, Evidentiary Framework in REFERENCE MANUAL, supra note 50, at 37. This chapter was designed to "assist judges in structuring inquiries necessary for making rulings on objections to expert evidence." Rorie Sherman, Judges' Manual Irks Plaintiff Bar, NAT'L L.J., Aug. 1, 1994, at A6 (quoting Joe S. Cecil, Project Director, FJC Research Division). The Association of Trial Lawyers of America (ATLA) and the plaintiffs' bar criticized the chapter as being biased toward favoring the exclusion of evidence. See, e.g., Eva M. Rodriguez, The Stale of Scientific Evidence, LEGAL TIMES, Dec. 12, 1994, at 6 (reporting criticisms from plaintiffs' bar groups that the FJC's Manual is one-sided and miseducates judges); Thom Weidlich, Plaintiff's Bar Loses Bid to Sway Science Manual NAT'L L.J., Dec. 26, 1994, at A11 (reporting that the FJC's board had considered ATLA's objections and voted to reject them). See also Kenneth J. Chesebro, Taking Daubert's "Focus" Seriously: The Methodology/Conclusion Distinction, 15 CARDOZO L. REV. 1745 (1994) (arguing that Daubert is most coherently understood by concentrating on the methodology/conclusion distinction).
179. The effectiveness and manner in which trial judges in poti-Daubert cases have made this determination has been discussed in the previous section, See supra Part III.B.
180. Joiner v. General Elec. Co., 864 F. Supp. 1310, 1322 (N.D. Ga. 1994).
181. Habecker v. Clark Equip. Co., 36 F.3d 278, 289 (3d Cir. 1994) (excluding for lack of fit forklift accident simulation that did not replicate lack of an operator or cargo on the forklift, and the height, rearward movement, or velocity of the forklift); Gier v. Educational Serv. Unit No. 16, 845 F. Supp. 1342, 1350-53 (D. Neb. 1994) (excluding for lack of fit expert testimony evaluating nonretarded children by using child behavior checklists designed for mentally retarded children); United States v. Libutti, 1994 WL 774646, *12 (D.N.J. 1994) (excluding for lack of fit testimony about a pathological gambling disorder that did not relate to elements of defendant's life); Richardson v. United States, 835 F. Supp. 1236, 1239-40 (E.D. Wash. 1993) (excluding for lack of fit accident reconstruction experts who did not base their conclusions on on-the-scene measurements of skid marks).
182. Another common issue that goes to weight relates to the strength of the expert's credentials. See,e.g., McCullock v. H.B. Fuller Co., 61 F.3d 1038 (2d Cir. 1995) (noting that disputes as to the strength of a medical doctor's credentials go to the weight, not the admissibility, of his testimony).
183. Paoli R.R. Yard, 35 F.3d at 745.
184. 891 F. Supp. 12 (D. Mass. 1995).
185. Id. at 18-19.
186. Rule 703 plays a diminished role in evaluating expert testimony after Daubert. The Court itself paid little attention to Rule 703 in Daubert. One central question in Rule 703 remains unanswered: What does "reasonable reliance" mean in the context of Rule 703? Arguably, the reasonable reliance standard in Rule 703 should not interpreted to require scientific consensus or even general acceptance of the data on which the expert is relying. This interpretation would be contrary to the liberal admissibility standard of Daubert. In keeping with the spirit of Daubert, reasonable reliance in Rule 703 should be interpreted to require a showing that it would be reasonable for another expert similarly situated in the same field to rely on the same data when presented with the same or similar circumstances.
187. 841 F. Supp. 415 (MD. Ga, 1994).
188. Id. at 419.
189. See, e.g., United States v. Lee, 25 F.3d 997, 998 (11th Cir. 1994) (remanding for determination of whether the evidence obtained from two machines incorporating the techniques of gas chromatographic chemiluminescence and ion mobility spectrometry was admissible under Daubert.
190. See, e.g., H.B. Fuller Co., 61 F.3d at 1044 (holding that specific faults in the use of differential etiology as a methodology goes to weight, not admissibility); Pioneer Hi-Bred Int'l, 35 F.3d at 1232-34 (holding that dispute about limitations of electrophoresis and liquid chromatography in determining the parentage of breeds of coin goes to weight, not admissibility); United States v. Chischilly, 30 F.3d 1144, 1154 (9th Cir. 1994) (holding that dispute about improperly conducted laboratory procedures goes to weight, not admissibility); United v. Bonds, 12 F.3d 540, 557, 563 (6th Cir. 1993) (holding that dispute about FBI's DNA testing protocol goes to weight, not admissibility); United States v. Martinez, 3 F.3d 1191, 1198 (8th Cir. 1993) (holding that dispute about improperly conducted laboratory procedures goes to weight, not admissibility).
191. Daubert III, 509 U.S. at 595.
192. See supra note 108 and accompanying text.
193. 999 F.2d 1007 (6th Cir. 1993).
194. Id. at 1012-14.
195. Id.
196. Paoli R.R. Yard, 35 F.3d at 732, 758, 764-71.
197. See Proposal to Establish a Science and Justice Program Within the Federal Judicial Center (Aug. 1992) (submission to the Carnegie Foundation); see also Martin, supra note 77.
198. See Edward V. DiLello, Note, Fighting Fire with Firefighters: A Proposal for Expert Judges at the Trial Level, 93 COLUM. L. REV. 473 (1993) (arguing for appointment of permanent expert magistrate judges who are lawyers specialized in particular scientific and technical fields).
199. See John W. Osborne, Note, Judicial/Technical Assessment of Novel Scientific Evidence, 1990 U. ILL. L. REV. 497 (recommending institutionalizing scientific and technical expertise in appellate/advisory panel whose function would be limited to reviewing validity of such evidence).
200. See supra note 32.
201. VA. CODE tit 8.01, §§ 8.01-581.1 - 8.01-581.20 (Michie 1992 & Supp. 1996).
202. Id. § 8.01-581.8.
203. Id. § 8.01-581.3.
204. Hand, supra note 9, at 40 (emphasis added).
205. "How long we shall blunder along without the aid of unpartisan and authoritative scientific assistance in the administration of justice, no one knows . . . ." Parke-Davis & Co. v. H.K. Mulford Co., 189 F. 95, 115 (C.C.S.D.N.Y. 1911), aff'd in part and rev'd in part, 196 F. 496 (2d Cir. 1912).