Daubert and junk science: have admissibility standards changed?

• Author: Miller, Nancy A.

ALTHOUGH courts and commentators alike have confused the roles of Federal Rules of Evidence 702 and 703 and have applied various tests to "scientific" evidence inconsistently, the decisions may not be as diverse as regarded by conventional wisdom. In the hope of providing some clarity to this murky area of evidentiary law, the U.S. Supreme Court in 1993 decided Daubert v. Merrell Dow Pharmaceuticals Inc.(1) Assessing the opinion in Daubert by comparing and contrasting its guidelines with prior cases may shed some light on the future of "scientific" evidence in the courtroom.

While efforts to amend Federal Rule of Evidence 702 were abandoned in the light of Daubert, and other suggested methods of reform have fallen on deaf ears, some states have continued to push for their reforms in spite of Daubert. Perhaps this effort signals either that the standards set forth in Daubert have not defined a clear path for admissibility of expert testimony or that they are at least insufficient to allay concerns over the proliferation of "junk science" in the courtroom. In either event, the Supreme Court has spoken on the controversial issue of the standards for the admissibility of expert testimony.

More than a year has passed since Daubert held that the Federal Rules of Evidence superseded the "general acceptance" test of Frye v. United States(2) previously used by several courts as the primary test of admissibility of expert scientific testimony. Although Daubert has been cited in more than 40 federal court decisions and more than 60 state court decisions across the country as of September 1994, admissibility of expert testimony appears relatively unchanged. The Supreme Court's mandate that the trial court serve as a "gatekeeper," assessing whether the subject of an expert's testimony consists of "scientific knowledge" derived by a scientific method and supported by appropriate validation, has led few courts to change the outcome of their admissibility rulings. Instead, they merely have altered their analyses to comport with the language of Daubert.

THE PRE-RULES ERA

Prior to the adoption of the Federal Rules of Evidence by Congress in 1975, the widely accepted standard for admissibility of expert testimony was the "general acceptance" test of Frye, a 1923 criminal case in which the District of Columbia Court of Appeals held that expert testimony based on a scientific technique is not admissible unless the technique has been generally accepted by the scientific community from which it was derived. One author has stated that the purpose of the Frye test was to prevent the "introduction into evidence of specious and unfounded scientific principles or conclusions based upon such principles."(3)

The defendant in Frye wished to offer the results of a systolic blood pressure deception test, the forerunner of today's polygraph test. The court acknowledged the well-recognized rule stated in the defendant's brief:

The rule is that the opinions of experts or

skilled witnesses are admissible in those cases in

which the matter of inquiry is such that inexperienced

persons are unlikely to prove capable of

forming a correct judgment . . . [and when] the

question involved does not lie within the range

of common experience or common knowledge,

but requires special experience or special knowledge,

then the opinions of witnesses skilled in

that particular science, art or trade to which the

question relates are admissible in evidence.(4)

However, the court refused to admit the testimony of the defendant's expert witness, stating:

Just when a scientific principle or discovery

crosses the line between the experimental and

demonstrable stages is difficult to define. Somewhere

in this twilight zone the evidential force

of the principle must be recognized, and while

courts will go a long way in admitting expert

testimony deduced from a well-recognized scientific

principle or discovery, the thing from

which the deduction is made must be sufficiently

established to have gained general acceptance in

the particular field in which it belongs.(5)

The court went on to hold that because the systolic blood pressure deception test had not yet acquired such recognition in the scientific community of physiologists and psychologists, the opinions the expert witness deduced from the results of the test were not admissible.

Before expert testimony based on a new technique will be admitted into evidence under the Frye test, the technique must go through an experimental stage whereby it passes the scrutiny of, and gains the general acceptance of, the relevant scientific community. One commentator notes that some scientific techniques have become so well-accepted that courts have taken judicial notice of their validity.(6) However, one expert or even several experts who believe a new technique has passed this "experimental" stage may not be sufficient to qualify the technique as having "gained general acceptance in the particular field which is relevant and the subject of the proffered testimony."(7)

POST-RULES ERA

1. Judicial Dichotomy

   Courts began rejecting the "general acceptance" standard with the advent of the Federal Rules of Evidence in 1975.(8) These courts asserted that Rules 702 and 703, which specifically address the admissibility of expert testimony, were contrary to and superseded the Frye standard. The standard these courts adopted was the more flexible "relevancy" test,(9) derived from Rule 702:

   Rule 702. Testimony by Experts

   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.

   Further defining the conditions under which a court should allow the opinion of an expert witness into evidence and sometimes read as a restriction on the admissibility of expert testimony, is Rule 703:

   Rule 703. Bases of Opinion Testimony by Experts

   The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

   Rule 703 actually regulates the facts and data, not the methodology, the expert witness may rely on in forming his opinions or inferences.(10)

   The split in the federal jurisdictions following adoption of the Federal Rules resulted in much controversy over "junk science."(11) Courts that continued to use the "general acceptance" test, even after the Federal Rules, did so in an attempt to keep "junk science" out of the courtroom.

   The ramifications of wrongly assessing liability against an innocent defendant spark future public policy concerns.(12) Not only must defendants bear the direct costs of litigation, including jury awards and settlements, but the public must pay for the externalities associated with the scientifically "as-yet-unproven" allegations. Companies bearing vast financial losses incurred by litigation remove products from the market even in the absence of scientific proof that they are truly unsafe. Large jury awards also may have a chilling effect on manufacturers, causing them to refrain from producing some new products because of the fear that a jury may assess liability against them based on unreliable or spurious scientific reasoning.

   The counter-argument, of course, is that the opposite result could occur. Injured "victims" could go uncompensated for the wrongdoing of those who should have known better, those who owed a duty to protect these very individuals, those who profited from their own wrongdoing. Courts and commentators who espouse these contentions feel that the scientific community may at times be too slow to recognize the reliability and validity of new techniques. They argue that the triers of fact should be the ones to weigh all of the available evidence, including those facts derived from "new" scientific techniques, and make decisions as to whom should bear the loss.

   Controversy exists over whether lay jurors, persons with little or no scientific expertise, are capable of sufficiently understanding the esoteric methods being employed so as to render an accurate and reliable judgment. Courts that believe jurors are not capable of sufficiently understanding all of the "scientific" data presented to them have attempted to restrict information being weighed to that which has already been sifted through the "experimental" phase of the scrutiny of the relevant scientific community and reached a "general acceptance" within that community.

   Many of those courts continued, even after the arrival of the Federal Rules, to apply the Frye test in one respect or another.

2. Courts Following "General Acceptance"

   Before Daubert, the controversy over the admissibility of expert testimony was seen as centering on the correctness or incorrectness of applying the Frye test of "general acceptance." In looking at the judicial analyses, however, one must conclude that Frye has not predominated as the ground for finding testimony inadmissible. The most common exclusionary vehicle has been the Federal Rules themselves.(13)

   For example, in 1987 the Court of Appeals for the District of Columbia Circuit in United States v. Shorter(14) upheld the district court's exclusion of expert testimony proffered to show that the defendant suffered from a pathological gambling disorder. The trial court had applied the three-part test of Frye.

   First, the court held that the pathological gambling disorder had achieved general acceptance in the relevant scientific community--that is, the mental health community comprised of psychologists and psychiatrists--and therefore it could be the subject of expert testimony. But the court found that...