Inc. Daubert v. Merrell Dow Pharmaceuticals

The holding rejected the old standard for the admission at trial of expert testimony and replaced it with a less stringent standard.

In 1923, a Washington, D.C. court held in Frye v. United States that expert testimony is admissible only if the science testified to by the expert is generally accepted within the scientific community. Most courts followed this standard until 1993, when the Supreme Court made its ruling in Daubert.

When Jason Daubert and Eric Schuller were born with serious birth defects, William and Joyce Daubert and Anita DeYoung suspected that the cause of the defects was Bendectin, a drug made by Merrell Dow Pharmaceuticals, Inc. DeYoung and the Dauberts sued Merrell Dow in state court for Daubert and Schuller. The plaintiffs alleged that the children had been born with reduced limbs because the mothers had ingested a Merrell Dow drug during pregnancy to alleviate nausea and vomiting.

Merrell Dow removed the case to federal court and denied that Bendectin caused the birth defects. In the preliminary stages of the civil case, Merrell Dow moved the court for summary judgment. Summary judgment is a judgment delivered by a judge prior to trial. It may be ordered by a court if a party does not show that there is a genuine issue of material fact involved in the claim. Merrell Dow produced Steven H. Lamm, an epidemiologist and a respected expert on the risks of exposure to various chemical substances. Lamm testified that, according to the public record, the use of Bendectin during the first trimester of pregnancy had not been proven to produce birth defects.

The plaintiffs did not dispute Dr. Lamm's testimony regarding publicly recorded tests of Bendectin. They did, however, maintain that Bendectin was harmful and that this could be proven by other experts. Although these experts had respectable credentials, they offered to testify to evidence culled from tests that were less established than those cited by Dr. Lamm. Specifically, the plaintiffs' experts were prepared to testify to "in vitro" or test tube tests, "in vivo" or live animal studies, pharmacological studies on drug structure, and reanalysis of previously published epidemiological studies. The trial court, however, refused to let the plaintiffs' experts testify. As the plaintiffs lacked testimony to rebut the testimony of Dr. Lamm, no genuine issue of material fact had been created by the plaintiffs, and the trial court awarded summary judgment to Merrell Dow.

The plaintiffs lost on appeal to the U.S. Court of Appeals for the Ninth Circuit. Citing the Frye standard, the appeals court held that the trial court was correct in its decision to exclude the testimony of the plaintiffs' experts because the techniques they were prepared to testify to were not generally accepted in the scientific community. Arguing that the Frye standard was no longer valid, the plaintiffs petitioned the U.S. Supreme Court for a writ of certiorari, and the High Court agreed to hear the case. In a nearly unanimous decision (Justices Rehnquist and Stevens concurred in part and dissented in part), the High Court vacated the appeals court ruling and sent the case back to the lower courts.

Writing for the Court, Justice Blackmun acknowledged that the standard set by Frye had been hotly debated over the years. However, the petitioners were not, noted Blackmun, basing their challenge on the content of the Frye standard, but on the "continuing authority of the rule." In 1975, Congress enacted the Federal Rules of Evidence to govern evidence issues in federal court, and among these was Rule 702, which covered the admissibility of expert testimony. The petitioners argued that this rule displaced the Frye standard, and the High Court agreed.

The Court analyzed the federal rules as it would analyze any other legislation and held that they superseded the Frye test. In prior cases, the Court had examined court-made, "common law" rules that were put in question by the enactment of the federal rules. In those cases, the Court found that the common law rule was superseded by the new federal rule if the common law rule had not been incorporated into the federal rule. The drafters of the Federal Rules of Evidence had not included language about "general acceptance in the scientific community" for Rule 702, so the Court held that the Frye standard had been superseded by Rule 702.

Under Rule 702 of the Federal Rules of Evidence, an expert witness may testify about scientific and technical matters and other areas of specialized knowledge if it "will assist the trier of fact to understand the evidence or to determine a fact in issue." This was a more permissible standard for the admission of expert testimony, but, the Court warned, that did not mean that the rules placed "no limits on the admissibility of purportedly scientific evidence." The Court reminded the parties that scientific evidence and testimony must be reliable and relevant to the case before it can be admitted.

The relevancy requirement came from Rule 402 of the Federal Rules of Evidence, which commands that all evidence that is not relevant to the case may not be introduced in court. The reliability requirement, according to the Court, came from the language of Rule 702, which requires that an expert's testimony be related to scientific, technical, or other specialized knowledge. Scientific knowledge, opined the Court, meant that the proposed testimony had to be "supported by appropriate validation--i.e. `good grounds,' based on what is known."

The Court recognized another requirement for the admissibility of expert testimony: it must "assist the trier of fact to understand the evidence or to determine a fact in issue." This "`helpfulness' standard" also required that expert testimony would be inadmissible in court unless it had "a valid scientific connection to the pertinent inquiry." Unlike other witnesses, expert witnesses may give opinions on topics of which they have no firsthand knowledge, so it was important, stressed the Court, to ensure that an expert's opinion would have "a reliable basis in the knowledge and experience of his discipline."

Although the Court was "confident that federal judges possess the capacity" to undertake the new expert witness analysis, it proceeded to offer advice to the lower federal courts. In determining whether a theory or technique is scientific knowledge that will be helpful to the judge or jury, the Court stated that important factors would be whether it could be tested and whether it had in fact been tested. Another factor would be "whether the theory or technique has been subjected to peer review and publication." Still another factor in the analysis would be whether there was a known rate of potential error, and the extent of any identifiable rate of error. The Court added that the Frye test of general acceptance in the scientific community would continue to be a factor in determining the admissibility of expert testimony. However, it could not be the only factor.

The Court dismissed Merrell Dow's claims that the new standard would result in a testimonial "free-for-all" that would confuse juries and subject the legal process to "pseudoscientific assertions." Other rules were in place to ensure that such havoc would not occur in court. Under Rule 706 of the Federal Rules of Evidence, a court may procure an expert of its own choosing. Under Rule 403, a court may exclude evidence if it will unfairly prejudice a party, confuse the issue, or mislead the jury. Rule 703 protects against inadmissible hearsay given by experts. Furthermore, questionable expert testimony, like any questionable testimony, is open to attack through cross-examinations and the presentation of contrary evidence.

Chief Justice Rehnquist and Justice Stevens concurred in part and dissented in part. In an opinion written by Chief Justice Rehnquist, the two justices agreed with the majority that the standard in Frye was replaced by the Federal Rules of Evidence. However, the justices felt that the Court was in no position to give a lecture on science to the lower courts. The general observations on the helpfulness of scientific evidence offered by the Court were, to Rehnquist and Stevens, unnecessary, "vague and abstract."

Rehnquist and Stevens objected to the Court's compendium on good and bad science because, although it was written by justices with no scientific background, it would be considered gospel by the lower courts. The majority had referred to the "falsifiability" of a scientific theory as a factor in determining its admissibility, but Rehnquist confessed that he was "at a loss to know what is meant when it is said the scientific status of a theory depends on its `falsifiability,'" and he expressed concern that federal judges would be at a similar loss. Rehnquist conceded that Rule 702 required federal judges to know something of science to make informed judgments on the admissibility of expert testimony. However, he did not think that the rule imposed on federal judges "the obligation or the authority to become amateur scientists in order to perform that role."