The Misbegotten Judicial Resistance to the Daubert Revolution

Authors

David E. Bernstein, George Mason University School of LawFollow

Abstract

This Article reviews the history of the evolution of the rules for the admissibility of expert testimony since the 1980s, the revolutionary nature of what ultimately emerged, and the consistent efforts by recalcitrant judges to stop or roll back the changes, even after Rule 702 was amended to explicitly incorporate a strict interpretation of those changes.

Part I reviews the law of expert testimony through the Supreme Court’s Daubert decision. Critics had charged for decades that the adversarial system was a failure with regard to expert testimony. Parties to litigation, they argued, often presented expert testimony of dubious validity because it supported their positions, while lay juries were incapable of discerning which side had the better case. But it took the rise of toxic tort litigation based on questionable causation theories and the attendant threat to multi-billion dollar industries to provoke a meaningful response from the courts—a sudden and dramatic shift toward stricter admissibility standards.

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

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

Recommended Citation

David E. Bernstein, The Misbegotten Judicial Resistance to the Daubert Revolution, 89 Notre Dame L. Rev. 27 (2014).
Available at: https://scholarship.law.nd.edu/ndlr/vol89/iss1/2