Daubert and the disappearing jury trial

University of Pittsburgh Law Review

Volumn 69, Issue 2, 2007, Pages 281-329

  Kanner, Allan ^a,b,c   Casey, M Ryan ^a  

^a Bolinger Engineering Consultants L L C   (United States)

^b Duke Law School ^*

^c TULANE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 48949092518     PISSN: 00419915     EISSN: None     Source Type: Journal    
DOI: 10.5195/LAWREVIEW.2007.114     Document Type: Review

References (243)

1. FRANZ KAFKA, Before the Law, in THE COMPLETE STORIES 3 (Nahum N. Glatzer ed., Willa & Edwin Muir trans., 2d ed. 1995).
2. Id. at 3.
3. Id.
4. Id. at 4.
5. Id. at 3-4.
6. 509 U.S. 579 (1993).
7. See, e.g., Martin L.C. Feldman, May I Have The Next Dance, Mrs. Frye?, 69 TUL. L. REV. 793, 803 (1995);
8. Harvard Law Review Ass'n, The Supreme Court, 1992 Term: Leading Cases, 107 HARV. L. REV. 144, 254-64 (1993).
9. This is not to deny that in some cases defendants' use of junk science has been stopped with a Daubert motion. Nor is it to suggest that Daubert rulings are adversely threatened against both parties by settlement-minded judges. However, the primary use of Daubert has been to dismiss plaintiffs' cases. See generally PROJECT ON SCIENTIFIC KNOWLEDGE AND PUBLIC POLICY, TELLUS INST., DAUBERT: THE MOST INFLUENTIAL SUPREME COURT RULING YOU'VE NEVER HEARD OF 4 (2003), available at http:// www.defendingscience.org/upload/Daubert-The- Most-Influential-Supreme-Court-Decision-You-ve-Never-Heard-Of-2003.pdf [hereinafter PROJECT ON SCIENTIFIC KNOWLEDGE AND PUBLIC POLICY].
10. ALLAN KANNER, ENVIRONMENTAL AND TOXIC TORT TRIALS § 4.16 (2d ed. Supp. 2004).
11. FED. R. EVID. 702.
12. Id. at 703.
13. See KANNER, supra note 9, § 4.02(1), at 8-10.
14. FED. R. EVID. 701 (allowing non-expert opinions or inferences "which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical or other specialized knowledge within the scope of Rule 702").
15. See, e.g., Klapmeier v. Telecheck Int'l, Inc., 482 F.2d 247, 253 (8th Cir. 1973) (allowing owner to testify as to the value of his property); United States v. Sowards, 370 F.2d 87, 92 (10th Cir. 1966) (evaluating when non-experts' opinion evidence has probative value and should be admitted by the court).
16. See, e.g., Boehm v. Fox, 473 F.2d 445, 448-49 (10th Cir. 1973) (allowing dairy owner's opinion on average pay to calculate compensatory damages).
17. See, e.g., Brown v. Ryan's Family Steak House, Inc., 113 F. App'x 512, 516 (4th Cir. 2004). In Brown, a former employee brought a Title VII action. Id. at 514. The proceedings can be summarized as follows: The employer moved to dismiss and compel arbitration pursuant to an arbitration agreement executed by the minor employee's guardian and great-great aunt, Mrs. Gassaway. Id. The employee countered that her guardian, now deceased, lacked the requisite mental capacity to enter into a binding contract when the arbitration agreement was executed. Id. at 514-16. In support, the employee offered testimony from the guardian's treating physician of sixteen years, Dr. John Sanders, who opined that the guardian was in mental decline due to brain atrophy during the relevant time. The district court denied the employer's motion to dismiss on magistrate's recommendation, and the employer appealed. Id. The admissibility was affirmed. Id. at 517. The physician's diagnosis of the guardian's ailments was not required to satisfy Daubert because the physician was a fact witness describing the patient's condition. The physician's opinion of the guardian's mental capacity was admissible as a lay opinion under Rule 701. Id. at 515-17. The court noted: Furthermore, Dr. Sanders is the most qualified person available to testify to Mrs. Gassaway's mental capacity. Gassaway has passed away and is not available for further medical examination. Dr. Sanders was her treating physician for sixteen years. The fact that his practice is internal medicine rather than neurology does not negate the fact that he is a qualified physician with more first-hand knowledge concerning Gassaway's physical and mental well-being than any other medical professional. Id. at 516.
18. FED. R. EVID. 403.
19. See, e.g., United States v. Phillips, 478 F.2d 743, 746 n.6 (9th Cir. 1973) (excluding expert testimony that mixed questions of law and questions of fact); N.Y. v. Westwood-Squib Pharm. Co., No. 90-CV-1324C, 2001 U.S. Dist. LEXIS 11765, at *30-31 (W.D.N.Y. June 23, 2001) (disallowing legal opinion on allocation of hazardous waste liabilities among responsible parties).
20. See, e.g., ALEXANDER KOHN, FALSE PROPHETS (1986);
21. WILLIAM BROAD & NICHOLAS WADE, BETRAYERS OF THE TRUTH (1982).
22. See supra note 19.
23. Learned Hand, Historical and Practical Considerations Regarding Expert Testimony, 15 HARV. L. REV. 40, 55-56 (1901).
24. Id.
25. 293 F. 1013, 1014 (D.C. Cir. 1923).
26. Id.
27. Id.
28. Id.
29. See id.
30. MCCORMICK ON EVIDENCE § 203, at 363 (John W. Strong ed., 4th ed. 1992).
31. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 582-83 (1993).
32. Id. at 582.
33. Id.
34. Id. at 583-85.
35. Id.
36. Id. at 589.
37. Daubert, 509 U.S. at 588 (citing FED. R. EVID. 702).
38. For good discussions of these issues, see Nat'l Conference on Sci. and the Law, Daubert-Joiner-Kumho: The Brave New World of Expert Evidence, 15 TOXICS L. REP. (BNA) 1213 (2000);
39. Leslie Lunney, Protecting Juries From Themselves: Restricting the Admission of Expert Testimony in Toxic Tort Cases, 48 SMU L. REV. 103 (1994).
40. See Daubert, 509 U.S. at 589.
41. Id. at 588 (citing Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169 (1988)).
42. Id.
43. FED. R. EVID. 702.
44. See Daubert, 509 U.S. at 589-91.
45. Id. at 595; see also FED. R. EVID. 703.
46. Daubert, 509 U.S. at 595; FED. R. EVID. 403.
47. See id. at 595, 596-97.
48. Id. at 596. Since Daubert was decided, several circuits have applied it in affirming district court exclusions of expert testimony under the Frye standard. See, e.g., In re Paoli R.R. Yard PCB Litig., 35 F.3d 717 (3d Cir. 1994); United States v. Jones, 24 F.3d 1177 (9th Cir. 1994) (affirming exclusion of expert testimony concerning voice identification); O'Conner v. Commonwealth Edison Co., 13 F.3d 1090 (7th Cir. 1994) (affirming exclusion of expert testimony that plaintiffs cataracts were caused by a radiation dose thousands of times less than that commonly believed by experts to be required to cause this condition); Amorgianos v. Nat'l R.R. Passenger Corp., 137 F. Supp. 2d 147, 163 (E.D.N.Y. 2001). Some courts not following the Federal Rules of Evidence have declined to apply a Daubert-type analysis, instead opting for the more restrictive Kelly/Frye general acceptance test. See, e.g., State v. Coon, 974 P.2d 386, 395 (Alaska 1999); People v. Leahy, 882 P.2d 321, 337 (Cal. 1994).
49. Daubert, 509 U.S. at 600 (Rehnquist, C.J., concurring in part and dissenting in part). The confusion surrounding Daubert has spawned multiple web sites. See, e.g., Daubert Tracker, http:// www.dauberttracker.com (last visited Mar. 22, 2008);
50. Stephen Mahle, DaubertExpert.com, http:// www.daubertexpert.com (last visited Mar. 22, 2008);
51. Peter Nordberg, Daubert on the Web, http:// www.daubertontheweb. com (last visited Mar. 22, 2008).
52. See, e.g., Edward K. Cheng & Albert H. Yoon, Does Frye or Daubert Matter? A Study of Scientific Admissibility Standards, 91 VA. L. REV. 471 (2005);
53. Lloyd Dixon & Brian Gill, Changes in the Standards for Admitting Expert Evidence in Federal Civil Cases Since the Daubert Decision, 8 PSYCHOL. PUB. POL'Y & L. 251 (2002);
54. Lynn R. Johnson et al., Deciphering Daubert, TRIAL, Nov. 1997, at 71.
55. See, e.g., Weisgram v. Marley Co., 528 U.S. 440, 455-456 (2000); United States, v. Scheffer, 523 U.S. 303 (1998); Tome v. United States 513 U.S. 150, 174-75 (1995).
56. Daubert, 509 U.S. at 580.
57. Id. at 593.
58. Id. at 589-90.
59. Moore v. Ashland Chem. Inc., 151 F.3d 269, 275 (5th Cir. 1998) (citing Daubert, 509 U.S. at 593-95).
60. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999) (noting that Daubert discussed four factors - testing, peer review, error rates, and "acceptability" in the relevant scientific community).
61. Daubert, 509 U.S. at 594.
62. Id. at 593.
63. Id. at 600-01 (Rehnquist, C.J., concurring in part and dissenting in part).
64. See Allan Kanner, Ruminations on Trial by Jury: An Essay in Honor of Judge Robert S. Vance (pts. 1 & 2), 5 Toxic L. Rep. (BNA) 415 (1990).
65. U.S. CONST. amend. VII; see also Raytheon Mfg. Co. v. RCA, 76 F.2d 943, 947 (1st Cir. 1935) (holding that neither Congress nor the courts can deprive a litigant of his right to a trial by jury).
66. Helene Curtis Indus., Inc. v. Pruitt, 385 F.2d 841, 850 (5th Cir. 1967) (affirming that the Fifth Circuit employs this test when determining whether an issue should be submitted to the jury).
67. Garcia v. Murphy Pac. Marine Salvaging Co., 476 F.2d 303, 306 (5th Cir. 1973).
68. Galloway v. United States, 319 U.S. 372, 396 (1943).
69. 522 U.S. 136 (1997).
70. 526 U.S. 137 (1999).
71. Joiner, 522 U.S. at 142.
72. Id. at 141, 142-43.
73. Id. at 142 (citing Spring Co. v. Edgar, 99 U.S. 645, 658 (1879)).
74. Id.
75. Kumho Tire Co., 526 U.S. at 147-48.
76. Id. at 148.
77. Peter J. Goss et al., Clearing Away the Junk: Court-Appointed Experts, Scientifically Marginal Evidence, and the Silicone Gel Breast Implant Litigation, 56 FOOD & DRUG L.J. 227, 231 (2001).
78. Abrarnson v. Fla. Gas Transmission Co., 909 F. Supp. 410, 419-20 & n.18 (E.D. La. 1995).
79. Berry v. City of Detroit, 25 F.3d 1342, 1350-51 (6th Cir. 1994).
80. Brown v. Miska, No. CIV. A. V-94-067, 1995 WL 723156, at *2, *4 (S.D. Tex. July 19, 1995).
81. Evans v. Phila. Hous. Auth., Civ. A. No. 93-5547, 1995 WL 154872, at *3, *6 (E.D. Pa. Mar. 31, 1995), aff'd, 79 F.3d 1139 (3d Cir. 1996).
82. Frosty v. Textron, Inc., 891 F. Supp. 551, 553 (D. Or. 1995).
83. Id.
84. In re Aluminum Phosphide Antitrust Litig., 893 F. Supp. 1497, 1499-1500 (D. Kan. 1995).
85. Morse/Diesel, Inc. v. Trinity Indus., Inc., 67 F.3d 435, 444 (2d Cir. 1995).
86. United States v. Thomas, 74 F.3d 676, 680 (6th Cir. 1996).
87. FED. R. EVID. 702.
88. 528 U.S. 440 (2000).
89. Id. at 447-56.
90. Id.
91. Id. at 455.
92. Id.
93. 235 F.3d 1307 (11th Cir. 2000).
94. Id. at 1312 (citations omitted).
95. United States v. Solorio-Tafolla, 324 F.3d 964, 965 (8th Cir. 2003) (quoting United States v. Evans, 272 F.3d 1069, 1094 (8th Cir. 2001)).
96. Solorio-Tafolla, 324 F.3d at 966 (quoting United States v. Molina, 172 F.3d 1048, 1056 (8th Cir. 1999)); cf. United States v. Alatorre, 222 F.3d 1098 (9th Cir. 2000) (upholding admission of expert testimony by district court which was to assist with complex matters).
97. 63 F. App'x 54 (3d Cir. 2003).
98. Id. at 56 (citing Kumho Tire, 526 U.S. at 142).
99. PETER W. HUBER, GALILEO'S REVENGE: JUNK SCIENCE IN THE COURTROOM (1991).
100. Id. at 2-3.
101. Daubert v. Merrell Dow Pharm., Inc., 951 F.2d 1128, 1131 (9th Cir. 1991), vacated, 509 U.S. 579 (1993) (quoting HUBER, supra note 91, at 228).
102. Henry Etzkowitz, The Norms of Entrepreneurial Science: Cognitive Effects of the New University-Industry Linkages, 27 RESEARCH POL'Y 823 (1998).
103. See Jason Dana, A Social Science Perspective of Gifts to Physicians from Industry, 290 J. AM. MED. ASS'N 252 (2003), available at http://jama.ama-assn.org/cgi/content/full/290/2/ 252 (subscription required).
104. See Monique E. Muggli et al., Science for Hire: A Tobacco Industry Strategy to Influence Public Opinion on Secondhand Smoke, 5 NICOTINE & TOBACCO RESEARCH 303 (2003).
105. See WAVERLY W. DING, DOES SCIENCE CHASE MONEY? (2006) (on file with University of Pittsburgh Law Review).
106. Pillow v. Roberts, 54 U.S. 472, 475 (1851).
107. JEREMY BENTHAM, FRAGMENT ON GOVERNMENT 11 (Harrison Wilfred ed., The Macmillan Co. 1948) (1776).
108. Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A factual dispute is "material" only if it might affect the outcome of the suit under governing law. Id. at 248. And, all inferences must be drawn, and all doubts resolved, in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985). On a motion for summary judgment, the moving party bears the initial burden of identifying for the court those portions of the record that it believes demonstrate the absence of dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To defeat summary judgment, the non-moving party may not rest upon the mere "allegations or denials in its own pleading; rather, its response must - by affidavits or as otherwise provided in this rule - set out specific facts showing a genuine issue for trial." FED. R. CIV. P. 56(e). The non-moving party must demonstrate the existence of evidence that would support a jury finding in its favor. See Anderson, 477 U.S. at 248-49.
109. Additional aspects of this phenomenon include the ever increasing contraction of discovery rights through rulings and court rule amendments. For the past fifteen years, the ability of requesting parties to use the broad discovery rights originally envisioned in the Federal Rules of Civil Procedure, and the notice-pleading regime they complement, has been steadily curtailed: • the right to obtain information through lawyer-managed discovery, not through mandatory, limited disclosure requirements • the right to determine how many interrogatories and depositions are necessary to develop adequate proof • the right to depose a witness for as long as it takes to get answers to relevant questions • the right to get all relevant information, not merely what the opposing party decides is supportive of claims and defenses • the right to complete discovery without repeated hearings before judges or discovery masters, with the attendant cost in time and money. From a legislative point of view, industry is now targeting special treatment for - and limitations on - electronic discovery. The ABA Litigation Section is also developing standards. See ABA, Electronic Discovery, http://www.abanet. org/litigation/issuecenter/issue_ediscovery.html (last visited Mar. 22, 2008).
110. See Eleanor Swift, One Hundred Years of Evidence Law Reform: Thayer's Triumph, 88 CAL. L. REV. 2437, 2466-68 (2000).
111. 9 U.S.C. §§ 1-14 (2000); see William G. Young, An Open Letter to U.S. District Judges, FED. LAW., July 2003, at 30, 33.
112. Allan Kanner & Tibor Nagy, Exploding the Blackmail Myth: A New Perspective on Class Action Settlements, 57 BAYLOR L. REV. 681, 699-700 (2005).
113. However, the notion of a national crisis resulting from a litigation explosion is not well-grounded in empirical science. See, e.g., WILLIAM HALTOM & MICHAEL MCCANN, DISTORTING THE LAW: POLITICS, MEDIA, AND THE LITIGATION CRISIS (2004) (arguing that the perception of the United States as overwhelmed by litigation and in desperate need of tort reform is empirically false yet still constitutes popular knowledge of law).
114. For example, between 1970 and 1998 the number of federal criminal statutes nearly doubled to 3,000, according to a 1998 American Bar Association study. TASK FORCE ON THE FEDERALIZATION OF CRIMINAL LAW, AM. BAR ASS'N, THE FEDERALIZATION OF CRIMINAL LAW 9-11 & app. c (1998).
115. The Federal Judicial Conference, previously led by former Chief Justice Rehnquist, opposes the "Class Action Fairness Act" because "of concerns that the provisions would add substantially to the work load of the federal courts and are inconsistent with principles of federalism." Letter from the Federal Judicial Conference to Senator Orrin Hatch, Chairman of the Senate Judiciary Comm. (Mar. 26, 2003).
116. James Morgan, ABA Urges Congress to Fund Federal Judiciary, LITIG. NEWS, Jan. 2005 at 5 (stating that a budget crisis threatens access to justice);
117. see also Tom Schoenberg, Federal Courts Avert Budget Disaster, LEGAL TIMES, Nov. 29, 2004, at 3. There are non-monetary fixes that could lessen some of these budgetary demands, especially in the area of GSA charges.
118. A letter from the Leadership Conference on Civil Rights to the Senate, Mar. 20, 2003, states that S. 247 is an unnecessary attempt to impose federal judicial regulation on matters of law clearly committed to the states . . . . [T]he imposition of such substantial new responsibilities on the federal courts will further impair the ability of those courts to carry out essential functions they are intended to serve under the Constitution.
119. For an in-depth discussion of this matter, see John C. Coffee, Jr., Class Wars: The Dilemma of the Mass Tort Class Action, 95 COLUM. L. REV. 1343 (1995).
120. See, e.g., William Mears, Rehnquist Calls for Full Funding of Federal Courts, CNN NEWS, Jan. 2, 2003, http://www.cnn.com/2003/ LAW/01/02/rehnquist.judges/index.html (last visited Mar. 22, 2008).
121. Coffee, supra note 110, at 1410.
122. PLATO, THE REPUBLIC 95 (Benjamin Jowett trans., The Modern Library, 1941).
123. AM. BAR ASS'N, THE ABA STANDING COMMITTEE ON THE FEDERAL JUDICIARY: WHAT IT IS AND HOW IT WORKS 1 n.1 (2007), available at http://www.abanet.org/scfedjud/ federal_judiciary07.pdf [hereinafter ABA STANDING COMMITTEE ON FEDERAL JUDICIARY].
124. See U.S. CONST. art. III, § 1.
125. ABA STANDING COMMITTEE ON FEDERAL JUDICIARY, supra note 114, at 2.
126. Id. at 3-4.
127. Id. at 1 n.1.
128. Id.
129. For the Committee ratings of all federal judicial nominees of the 107th-110th Congresses, see Am. Bar Ass'n, ABA Standing Committee on the Federal Judiciary, Ratings for Judicial Nominees, http://www.abanet.org/scfedjud/ ratings.html (last visited Mar. 22, 2008).
130. Am. Bar Ass'n, Ratings of Article III Judicial Nominees: 109th Congress, http:// www.abanet.org/scfedjud/ratings/ratings109.pdf (last visisted Mar. 22, 2008).
131. Editorial, A Hostile Judge, THE BOSTON GLOBE, Mar. 22, 2004, at A10, available at 2004 WLNR 3585701.
132. See generally Judith Resnik, Managerial Judges, 96 HARV. L. REV. 374 (1982).
133. The Federal Judicial Center, basing itself on comments received from many judges, lawyers and academics, has described effective management as generally having the following characteristics: It is active. The judge attempts to anticipate problems before they arise rather than waiting passively for matters to be presented by counsel. Because the attorneys may become immersed in the details of the case, innovation and creativity in formulating a litigation plan may frequently depend on the court. It is substantive. The judge's involvement is not limited to procedural matters. Rather, the judge becomes familiar at an early stage with the substantive issues in order to make informed rulings on issue definition and narrowing, and on related matters, such as scheduling, bifurcation and consolidation, and discovery control. . . . . It is continuing. The judge periodically monitors the progress of the litigation to see that schedules are being followed and to consider necessary modifications of the litigation plan. The judge may call for interim reports between scheduled conferences. It is firm, but fair. Time limits and other controls and requirements are not imposed arbitrarily or without considering the views of counsel, and they are subject to revision when warranted by the circumstances. Once having established a program, however, the judge expects schedules to be met and, when necessary, imposes appropriate sanctions . . . for derelictions and dilatory tactics. FEDERAL JUDICIAL CENTER, MANUAL FOR COMPLEX LITIGATION (THIRD) § 20.13 (1995).
134. Active case management is a process which is being applied in many jurisdictions, even outside the United States. Professor Sallmann of the Australian Institute of Judicial Administration has summarized the "quiet but enormously significant revolution" that has already occurred in the Higher Courts of Australia in this way: The revolution has involved a dramatic shift from a laissez faire approach in conducting court business to an acceptance by courts of the philosophical principle that it is their responsibility to take an interest in cases from a much earlier stage in the process and to manage them through a series of milestones to check points. Most courts have now acted upon this philosophy and introduced a variety of schemes, the common denominator of which is substantially increased court supervision and, in some instances, control. Broadly speaking activity has occurred under the banner of "case flow management." The concept means different things to different people. The essence of it is the adoption by courts of a systematic, managerial approach to dealing with case loads. ACCESS TO JUSTICE ADVISORY COMM., ACCESS TO JUSTICE: AN ACTION PLAN, ch. 5, at ¶ 9 (1994).
135. Professor Francis McGovern, Deceptive Trade Practices Litigation: Context and Procedural Standards, Speech at the Center for Legal Policy at the Manhattan Institute Conference (Oct. 24, 2002), in UNFAIR COMPETITION AND CONSUMER FRAUD STATUTES: RECIPE FOR CONSUMER FRAUD PREVENTION OR FRAUD ON THE CONSUMER 18 (2002), available at http://www.manhattan-institute.org/pdf7mics9.pdf.
136. Some negative consequences of putting efficient management before fairness are well-documented. See generally Victor E. Schwartz & Leah Lorber, A Letter to the Nation's Trial Judges: How The Focus on Efficiency is Hurting You and Innocent Victims in Asbestos Liability Cases, 24 AM. J. TRIAL ADVOC. 247 (2000);
137. Francis E. McGovern, The Defensive Use of Federal Class Actions in Mass Torts, 39 ARIZ. L. REV. 595 (1997).
138. In addition, the managerial judge is also too much of an administrator. The most important metrics for a district judge are how long motions sit. Given their fixed salary, judges do not earn any more money for trying cases. Like an assembly line worker on a fixed salary, where is the incentive to "produce" more?
139. Critics of the jury system often point to PETER W. HUBER, LIABILITY: THE LEGAL REVOLUTION AND ITS CONSEQUENCES 14 (1988), including the petitioners in their Kumho Tire brief.
140. Most of Huber's conclusions regarding the inability of the jury to comprehend scientific evidence were refuted by other research, most notably Edward J. Imwinkelried, The Standard for Admitting Scientific Evidence: A Critique from the Perspective of Juror Psychology, 28 VILL. L. REV. 554 (1983),
141. and Neil Vidmar, Pap and Circumstance: What Jury Verdict Statistics Can Tell Us About Jury Behavior and the Tort System, 28 SUFFOLK U. L. REV. 1205 (1994).
142. A Hostile Judge, supra note 122, at A10.
143. Id.
144. See, e.g., Associated Press, Supreme Court Won't Weigh in on Chamber of Commerce Election Ads, FIRST AMENDMENT CTR. NEWS, May 29, 2001, http://www.firstamendmentcenter.org/ news.aspx7id= 5025 (last visited Mar. 22, 2008) (stating that the Chamber, restricted in its donating to judicial candidates, nonetheless ran "issue ads" supportive of candidates considered pro-business).
145. See, e.g., Institute for Legal Reform, About ILR, http://www.instituteforlegalreform.org/about/ index.cfm (last visited Mar. 22, 2008).
146. Young, supra note 103, at 30.
147. Id. at 31 (quoting Ciulla v. Rigny, 89 F. Supp. 2d 97, 102 n.6 (D. Mass. 2000) (internal citations omitted)).
148. Id. at 32.
149. Jeffry D. Cutler, Implications of Strict Scrutiny of Scientific Evidence: Does Daubert Deal a Death Blow to Toxic Tort Plaintiffs?, 10 J. ENVTL. L. & LITIG. 189, 214 (1995) ("[I]t doesn't take a rocket scientist to figure out that a four or five part test including 'general acceptance' as one factor will be more difficult to meet than a test based on 'general acceptance' alone.").
150. In the mid-1980s, the science of clinical ecology appeared to be the answer to the causation conundrum for plaintiffs' attorneys. Professor Elliott described the phenomenon as follows: For a price, some clinical ecologists will testify that exposure to even very small amounts of a wide range of chemicals suppresses the immune system, thereby weakening the body's ability to ward off disease. This weakening, in turn, allegedly makes the plaintiff vulnerable to virtually all diseases known to humankind, including "nervousness," "malaise," and other conditions that present only subjective symptoms. E. Donald Elliott, Toward Incentive-Based Procedure: Three Approaches for Regulating Scientific Evidence, 69 B.U. L. REV. 487, 490 (1989);
151. see also Peter Huber, A Comment on Toward Incentive-Based Procedure: Three Approaches for Regulating Scientific Evidence by E. Donald Elliott, 69 B.U. L. REV. 513, 515 (1989). Even before Daubert refined their screening function, the courts never seriously entertained claims based heavily upon the testimony of clinical ecologists.
152. For an excellent example, see Professor Beecher-Monas's thorough and devastating critique of the post-Daubert Eighth Circuit Court of Appeals' opinion in Wright v. Willamette Indus., Inc., 91 F.3d 1105 (8th Cir. 1996). Erica Beecher-Monas, The Heuristics of Intellectual Due Process: A Primer for Triers of Science, 75 N.Y.U. L. REV. 1563, 1637 (2000).
153. See Harvey Brown, Eight Gates For Expert Witnesses, 36 HOUS. L. REV. 743 (1999) (detailing eight "gates" through which a proponent of expert testimony must navigate in order to demonstrate that the testimony is admissible); see also Beecher-Monas, supra note 139.
154. See Thomas O. McGarity, On the Prospect of " Daubertizing" Judicial Review of Risk Assessment, 66 LAW & CONTEMP. PROBS. 155, 170 (2003).
155. THE FEDERALIST NO. 78 (Alexander Hamilton).
156. Logerquist v. McVey, 1 P.3d 113, 126 (Ariz. 2000).
157. The problem of disobedient federal judges has emerged in numerous contexts. See, e.g., Adam Liptak & Ralph Blumenthal, Death Sentences in Texas Capital Cases Try Supreme Court's Patience, N.Y. TIMES, Dec. 5, 2004, at 40 (quoting former Third Circuit Chief Judge John Gibbons: "The Fifth Circuit went out of its way to defy the Supreme Court on this [death penalty-related issue]. The idea that the System can tolerate open defiance by an inferior court just cannot stand.");
158. see also JAY E. AUSTIN ET AL., ENVTL. LAW INST., JUDGING NEPA: A "HARD LOOK" AT JUDICIAL DECISION MAKING UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT (2004), http://www.endangeredlaws.org/downloads/ JudgingNEPA.pdf (revealing a wide division between Republican and Democratic appointees in rulings in NEPA cases).
159. It is also hard to reconcile the unlimited trust placed in a trial court on Daubert matters with the micro-managing of judges that is now the vogue. In areas like sentencing and even the supervision of class actions, the trend is in the opposite direction.
160. For example, Cross v. Alpha Therapeutic Corp. (In re Factor VIII or IX Concentrate Blood Prods. Litig.), No. CIV.A.94-0382, 2000 WL 282787 (E.D. La. Mar. 14, 2000), is a very complex class action case involving alleged reinfection of an HIV positive person through the medium of the defendant's intravenous solutions. The case is significant because it involves a "new theory" expert testimony case under Daubert. Id. at *13. The district court denied a defendant's motion for summary judgment based on its expert testimony that there was no evidence that reinfection of HIV occurred in humans. Id. Literally in the motion papers, the plaintiffs presented a report which documented the first case of an HIV positive patient to actually be reinfected with a second strain of HIV. Id. At the time of hearing the potential rate of error was unknown, the actual test performed had not been subjected to peer review, and there was no evidence that it was generally accepted in the scientific community. Id. However, the plaintiffs presented other evidence in the form of papers by their own expert witness and others that seemed to illustrate the existence of the reinfection theory. Id. The court assumed, for purposes of the summary judgment motion, that the reinfection theory would survive a Daubert challenge as to reliability. Id. However, the court held that the proffered expert evidence did not survive the Daubert relevancy test because the plaintiffs could not present evidence that the plaintiff had actually been reinfected or that his illness would have proceeded differently from the singly-infected individual because of reinfection. Id. The case does not set the standards for a "new theory" case but is one of the first to even consider the matter.
161. In considering whether a ladder was unreasonably dangerous in design, the district court in Clark v. R.D. Werner Co., No. CIV.A.99-1426, 2000 WL 666380 (E.D. La. May 18, 2000), rejected the testimony of plaintiff's metallurgical expert. Id. at *5. The court concluded that the issue in the case was bad design, and not metal failure. Id. The metallurgist's specialty was in bicycle failure. Id. at *4. The trial court rejected the metallurgist's testimony because he was not a mechanical engineer, had never designed or overseen the assembly of the stepladder, had never subjected any ladder - much less the ladder in question - to a full protocol of tests required by industry standards, had not served on any committees creating the standards, had not studied in the field of accident reconstruction, and had never done metallurgical testing on any ladder including the ladder in question. Id.
162. Daubert, 509 U.S. at 589.
163. 97 F. Supp. 2d 780 (S.D. Tex. 2000).
164. Id. at 793.
165. Id. at 786.
166. Id. at 789.
167. 81 F. Supp. 2d 661 (M.D. La. 2000).
168. Id. at 663.
169. Id. at 664.
170. Id.
171. Id. at 663-64 (citation omitted).
172. Id. at 664.
173. Id. 664 n.3.
174. This reasoning did not stop with the district court. The Fifth Circuit affirmed the exclusion, agreeing that the lack of epidemiological studies made the evidence unreliable. See Chambers v. Exxon Corp., No. 00-30559, 2001 WL 43538 (5th Cir. Jan. 5, 2001). According to the Fifth Circuit, "because Chambers failed to demonstrate that his experts would present reliable data that benzene caused his CML, the district court acted within its discretion when it excluded the testimony of Chambers' causation experts." Id. at *2. This shows how a lack of any meaningful appellate review only crystallizes and promotes Daubert abuse.
175. 218 F. Supp. 2d 769 (D. Md. 2002).
176. Id. at 783.
177. David Mercer & Gary Edmond, Daubert and the Exclusionary Ethos: The Convergence of Corporate and Judicial Attitudes Towards the Admissibility of Expert Evidence in Tort Litigation, 26 L. & POL'Y 231, 241-43 (2004) (internal citations omitted).
178. The case, reviewed for "abuse of discretion," was affirmed by the Fourth Circuit. Newman v. Motorola, Inc., 78 F. App'x 292 (4th Cir. 2003).
179. 91 F.3d 1105 (8th Cir. 1996).
180. Beecher-Monas, supra note 139, at 1637 (footnotes omitted).
181. LLOYD DIXON & BRIAN GILL, RAND INST. FOR CIVIL JUSTICE, CHANGES IN THE STANDARDS FOR ADMITTING EXPERT EVIDENCE IN FEDERAL CIVIL CASES SINCE THE DAUBERT DECISION (2001), available at http://www.rand.org/publications/MR/MR1439/MR1439.pdf [hereinafter RAND STUDY].
182. Id. at 61-62; see also Margaret A. Berger, What Has a Decade of Daubert Wrought?, 95 AM. J. PUB. HEALTH, S59 (2005).
183. D. Michael Risinger, Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left on the Dock?, 64 ALBANY L. REV. 99, 110-11 (2000) (footnotes omitted).
184. RAND STUDY, supra note 168, at 54.
185. PROJECT ON SCIENTIFIC KNOWLEDGE AND PUBLIC POLICY, supra note 8, at 4 (citing RAND STUDY, supra note 168).
186. See Patricia Lee Refo, Opening Statement: The Vanishing Trial, LITIG., Winter 2004, at 2, 2, available at http://www.abanet.org/litigation/journal/opening_statements/ 04winter_openingstatement.pdf.
187. Although ABA research shows this trend in some state courts at least, some other state courts appear to be different. In New Jersey, 1.9% of all filed cases are resolved by trial. This number has remained constant from 1990 to 2004. Harvey C. Fisher, Trial Rates Down? Not on Your Life, 13 N.J. LAW., Nov. 8, 2004, at 1. Interestingly, for litigation explosion theorists, total new filings per year fell to 99,855 in 2004 from 160,465 in 1990. Id.
188. Patrick E. Higginbotham, So Why Do We Call Them Trial Courts?, 55 SMU L. REV. 1405, 1405-06 (2002). The unfinished part of the story about declining jury trials is how few jury verdicts are allowed to stand post-trial or on appeal.
189. E.g., Joseph T. Hallinan, In Malpractice Trials, Juries Rarely Have the Last Word, WALL ST. J., Nov. 30, 2004, at A6.
190. Leonard Post, Federal Tort Trials Continue Downward Spiral, NAT'L L.J., Aug. 22, 2005, at 1.
191. RAND STUDY, supra note 168, at 55.
192. PROJECT ON SCIENTIFIC KNOWLEDGE AND PUBLIC POLICY, supra note 8, at 13 (citations omitted).
193. Leslie Bender, Feminist (Re)torts: Thoughts on the Liability Crisis, Mass Torts, Power, and Responsibilities, 1990 DUKE L.J. 848, 861-62.
194. Whether or not "public forum" is a proper role for a court is a large subject that is not addressed here.
195. See, e.g., Jennifer Wolsing, Note, Daubert's Erie Problem, 82 IND. L.J. 183 (2007) (discussing how Daubert's ambiguity has resulted in different judicial interpretations of the admissibility of evidence between state and federal courts in the same districts, resulting in forum shopping).
196. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
197. Marc Galanter, Beyond the Litigation Explosion, in NEW DIRECTIONS IN LIABILITY LAW 19 (Walter Olson ed., 1988).
198. States Move to Daubert, Even When They Say They're Stuck on Frye, 30 BNA PRODUCT SAFETY & LIABILITY REP. 328, 328-41 (2002).
199. Alice B. Lustre, Annotation, Post-Daubert Standards for Admissibility of Scientific and Other Expert Evidence in State Courts, 90 A.L.R. 5th 453 (2001).
200. See People v. Farnam, 47 P,3d 988 (Ca. 2002); Ibar v. State, 938 So. 2d 451 (Fla. 2006); People v. McKown, 875 N.E.2d 1029 (Ill. 2007); People v. LeGrand, 867 N.E.2d 374 (N.Y. 2007); Commonwealth v. Whitacre, 878 A.2d 96 (Pa. Super. Ct. 2005); see also States Move to Daubert, Even When They Say They're Stuck on Frye, supra note 184.
201. E.g., Allan Kanner, The Problem of MDL Injunctions, 4 BNA CLASS ACTION REP. 303, 306 (2003).
202. Note, Reliable Evaluation of Expert Testimony, 116 HARV. L. REV. 2142, 2147 (2003); see also Hollander v. Sandoz Pharm. Corp., 289 F.3d 1193, 1206 (10th Cir. 2002).
203. Hollander, 289 F.3d at 1206.
204. Id. at 1195.
205. PROJECT ON SCIENTIFIC KNOWLEDGE AND PUBLIC POLICY, supra note 8, at 11.
206. For example, a significant amount of evidence was excluded in the
207. Globetti v. Sandoz Pharm. Corp., 111 F. Supp. 2d 1174, 1177 (N.D. Ala. 2001).
208. See John J. Fialka, Panel Judging EPA's Proposed Air Regulations Receives Most of Its Funding From the Regulated, WALL ST. J., Jan. 16, 1997, at A20.
209. Pub. L. No. 106-554 app. C, § 515, 114 Stat. 2763, 2763A-153 to -154 (2000) (codified at 44 U.S.C. § 3516 note (2000)).
210. Id.
211. Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility and Integrity of Information Disseminated by Federal Agencies, 66 Fed. Reg. 49,718 (proposed Sept. 28, 2001).
212. Id. at 49,720.
213. Id. at 49,719.
214. See, e.g., Zachary Coile, Wildlife Scientists Feeling Heat: Species-Protection Data Suppressed, Many Report, SAN. FRAN. CHRON., Feb. 10, 2005, at A1, available at 2005 WLNR 1860628.
215. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 140 (1997).
216. In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 733 (3d Cir. 1994).
217. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588 (1993).
218. Id. at 589.
219. See, e.g., Gordon J. Beggs, Novel Expert Evidence in Federal Civil Rights Litigation, 45 AM. U. L. REV. 1 (1994).
220. Id. at 75.
221. Young, supra note 103, at 30.
222. Id. at 31.
223. Daubert, 509 U.S. at 595.
224. Id. at 596 (citations omitted).
225. Daubert in the Circuits, http://www.daubertontheweb.com/circuits. htm (last visited Mar. 22, 2008).
226. See generally id. (examining many Daubert cases under various circuits' laws).
227. See generally Arthur R. Miller, The Pretrial Rush to Judgment: Are the "Litigation Explosion," "Liability Crisis," and Efficiency Clichés Eroding Our Day in Court and Jury Trial Commitments?, 78 N.Y.U. L. REV. 982, 1133-34 (2003) (arguing that "an unfettered commitment to 'efficiency' in the pretrial disposition context" and a resort to the "'litigation explosion' and 'liability crisis' bromides" have been eroding "systemic values" of rights to a day in court and to jury trial).
228. Similar comments have been made about patent cases, since many judges simply are unable or unwilling to take the time to get steeped in the technology of the patent, and so pick one side's brief over the other.
229. Today many of the resources that defendants used to spend on buying expert "dream teams" for trials go into expensive Daubert challenges. These challenges in some cases do more harm than good in that they educate plaintiff and force him to improve his presentation.
230. Prior to Daubert, such experts could have been, but were rarely, stricken for failing to demonstrate how their testimony would assist jurors to decide the facts of the case. See FED. R. EVID. 702.
231. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
232. The Daubert criteria: (1) whether the methods upon which the testimony is based are centered upon a testable hypothesis; (2) the known or potential rate of error associated with the method; (3) whether the method has been subject to peer review; and (4) whether the method is generally accepted in the relevant scientific community.
233. Ambrosini v. Upjohn Co., Civ.A. No. 84-3483 (NHJ), 1995 WL 637650 at *3 (D.D.C. Oct. 18, 1995), rev'd on other grounds sub nom., Ambrosini v. Labarraque, 101 F.3d 129 (D.C. Cir. 1996), cert dismissed, 520 U.S. 1205 (1997).
234. Claar v. Burlington N. R.R. Co., 29 F.3d 499, 502 (9th Cir. 1994).
235. Id.
236. Porter v. Whitehall Lab., Inc., 9 F.3d 607, 615 (7th Cir. 1993). This point underscores the importance of avoiding Daubert at pre-discovery phases.
237. Reynard v. NEC Corp., 887 F. Supp. 1500, 1505 (M.D. Fla. 1995).
238. Sorensen v. Shaklee Corp., 31 F.3d 638, 649 (8th Cir. 1994).
239. Valentine v. Pioneer Chlor Alkali Co., 921 F. Supp. 666, 671 (D. Nev. 1996).
240. Clement v. Griffin, 634 So. 2d 412, 427 (La. Ct. App. 1994).
241. However, the lawyer is well advised to research a judge's knowledge of a subject by looking at other cases he or she has presided over and any relevant background information.
242. KARL R. POPPER, THE LOGIC OF SCIENTIFIC DISCOVERY § 6 (Karl R. Popper trans., Basic Books, Inc. 1959) (1934).
243. Bert Black, Winning The Expert Wars in the Age of Daubert (ALI-ABA Course of Study July 19, 1996), WL SB16 ALI-ABA 13 (1996).