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15 Cardozo L. Rev. 2139 (1993 - 1994)
The Admissibility of Scientific Evidence after Daubert v. Merrell Dow Pharmacueticals, Inc.

handle is hein.journals/cdozo15 and id is 2165 raw text is: THE ADMISSIBILITY OF SCIENTIFIC EVIDENCE AFTER DAUBER T v. MERRELL DOW PHARMACEUTICALS, INC. David E. Bernstein* INTRODUCTION This past June, the Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc.,' the most important case involving the admissibility of scientific evidence in seventy years. While some ana- lysts have argued that Daubert will encourage the trend toward more careful judicial scrutiny of scientific evidence,' others have contended that the opinion will reduce the role of the courts in screening scien- tific evidence and permit a flood of junk science evidence into Ameri- can courtrooms.3 The early evidence strongly suggests that the former view is correct. So far, most federal courts are interpreting Daubert as giving them wide authority to restrict the scope of admis- sible scientific evidence in toxic tort litigation and are using that au- thority aggressively. As of this writing, eight federal courts, including five circuit court panels, have relied on Daubert to entirely exclude scientific evidence offered to support causation or to find that the evi- dence was insufficient as a matter of law.4 Most impressively, the Third Circuit Court of Appeals, previously the most liberal circuit in admitting scientific evidence, rendered one of the decisions excluding * Associate, Crowell & Moring, Washington, D.C. Bert Black, Ken Foster, Michael Horowitz, Peter Huber, and Solveig Singleton provided insightful comments on drafts of this Article. Ms. Singleton provided particularly valuable editorial assistance. 1 113 S. Ct. 2786 (1993). 2 E.g., David E. Bernstein & Peter W. Huber, 'Daubert' Plaintiffs Won Technical Battle But Plainly Lost the War, 21 Prod. Safety & Liab. Rep. (BNA) 16 (Summer-Fall 1993). 3 E.g., G. Marc Whitehead, 'Daubert' Will Allow More Expert Testimony, Complicate Ju- rors' Job, Prejudice Defense, 21 Prod. Safety & Liab. Rep. (BNA) 41 (Summer-Fall 1993); see also Michael D. Green, Relief at the Frying of Frye: Reflections on Daubert v. Merrell Dow Pharmaceuticals, I SHEPARD'S EXPERT & Sci. EVIDENCE Q. 43, 47-48 (1993); Barry J. Nace, Reaction to Daubert, I SHEPARD's EXPERT & Sci. EVIDENCE Q. 51 (1993). 4 O'Conner v. Commonwealth Edison Co., 13 F.3d 1090 (7th Cir. 1994); Elkins v. Rich- ardson-Merrell, Inc., 8 F.3d 1068 (6th Cir. 1993), cert. denied, 62 U.S.L.W. 3511 (U.S. Mar. 21, 1994) (No. 93-1172); Thomas v. American Cyanamid, 7 F.3d 235 (6th Cir. 1993); Porter v. Whitehall Labs., Inc., 9 F.3d 607 (7th Cir. 1993); DeLuca v. Merrell Dow Pharmaceuticals, Inc., 6 F.3d 778 (3d Cir. 1993), cert. denied, 114 S. Ct. 691 (1994); Hodges v. Secretary of Dep't of Health & Human Servs., 9 F.3d 958 (Fed. Cir. 1993); Chikovsky v. Ortho Pharma- ceutical Corp., 832 F. Supp. 341 (S.D. Fla. 1993); In re Joint E. & S. Dists. Asbestos Litig., 827 F. Supp. 1014 (S.D.N.Y. 1993); Haim v. Secretary of Dep't of Health & Human Servs., No. 90-1031V, 1993 U.S. Claims LEXIS 145 (CI. Ct. Aug. 27, 1993). 2139

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