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Practitioners often refer to mounting “a Daubert attack”—as if there were only one type of attack that you can make as the litigant opposing the introduction of expert testimony. Three ‘Daubert’ arguments that can be pressed In truth, there are three different arguments that you can press. The proponent has failed to produce sufficient evidence to permit the judge to rationally find that its expert’s hypothesis has been empirically validated. Suppose that the proponent comes forward with foundational testimony with meager probative value. Consider several examples. Initially, although the expert states that there is an empirical study of the hypothesis, the expert’s testimony tells the judge next to nothing about the design of the study. In United States v. Kime, 99 F.3d 870 (8th Cir. 1996), cert. denied, 519 U.S. 1141 (1997), the 8th U.S. Circuit Court of Appeals held that an expert’s conclusory assertion that there had been a scientific test of the hypothesis falls short of satisfying Daubert. Next, elaborating on the study, the expert discloses that the study entailed only a small database. In a pre- Daubert decision, the North Dakota Supreme Court held that a trial judge may bar a scientific opinion resting on a small database. The proponent’s showing amounted to little more than a collection of anecdotes: In the words of the North Dakota court, quantitatively there had “been too little research.” Nelson v. Trinity Medical Center, 419 N.W.2d 886, 892 (N.D. 1988). Assume now that the expert testifies that the database included 1,000 subjects, but that all the subjects were infant animals rather than adult human beings. The testimony about 1,000 subjects might allay the quantitative concern mentioned in the preceding paragraph, but now there are qualitative concerns. Is the database representative of the subject that the expert proposes opining about? If the expert ultimately contemplates testifying to a hypothesis about medical causation in human beings, the issue is whether, standing alone, the animal study is sufficient to carry the proponent’s burden. The majority confronted that issue in General Electric Co. v. Joiner, 522 U.S. 136 (1997). The majority stated: “The studies involved infant mice that had developed cancer after being exposed to PCBs. The infant mice in the studies had massive doses of PCBs injected directly into their peritoneums or stomachs. Joiner was an adult human being whose alleged exposure to PCB was far less than the exposure in the animal studies. The PCBs were injected into the mice in a highly concentrated form. The fluid with which Joiner had come in contact generally had a much smaller PCB concentration of between 0-500 parts per million. The cancer that these mice developed was alveologenic adenomas; Joiner had developed small-cell carcinomas. No study demonstrated that adult mice developed cancer after being exposed to PCBs.” The majority stopped short of announcing that animal testing can never constitute adequate validation for a hypothesis about human beings. However, in part due to the composition of the databases, the majority concluded that “[t]he studies [involving infant mice] were so dissimilar to the facts presented in this litigation that it was not an abuse of discretion for the District Court to have rejected the expert’s reliance on them” to substantiate a hypothesis about medical causation in humans. Joiner expressed concern about the test conditions as well as the composition of the database. A pre- Daubert case, People v. Law, 40 Cal. App. 3d 69, 114 Cal. Rptr. 708 (1974), directly addressed the former concern. In Law, the proponent, the prosecution, offered sound spectrography or voiceprint evidence. The prosecution was attempting to prove that the accused was the person who had placed a phone call in which the caller had obviously tried to disguise her voice. To lay a foundation for sound spectrography evidence, the prosecution pointed to a large number of studies involving hundreds of subjects. The difficulty was that in the studies all the subjects were speaking naturally with no attempt to distort their voices or mimic other people’s voices. In short, the conditions during the experiments did not approximate the conditions involved in the case. In part for that reason, the court ruled the experimental verification inadequate. If the test conditions do not match, the requisite “fit” between the research and the facts of the instant case is lacking. Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 591 (1993). All of these fact situations are variations of a theme in Joiner. In Joiner, the majority commented that there was “simply too great an analytical leap between the data and the opinion proffered.” General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997). As a matter of logic, it is too great an extrapolation from the research data presented to the ultimate inference which the expert contemplates drawing from the data. Daniel Capra, “The Daubert Puzzle,” 32 Ga. L. Rev. 699, 715 (1998). Such a leap is an act of faith rather than scientific analysis. In sum, when the proponent’s foundation gives the judge little or no detail about the supporting research or discloses a small, unrepresentative database, unrealistic test conditions or a high error rate, the foundation is insufficient. The proponent presents barely enough evidence to allow the judge to find that its expert’s hypothesis has been empirically validated, but the opponent presents overwhelming contrary evidence. The fact pattern in Daubert illustrates this attack. As Professor Faigman and his co-authors pointed out in the first edition of their treatise, Daubert was a unique fact situation. David L. Faigman, David H. Kaye, Michael J. Saks and Joseph Sanders, Modern Scientific Evidence: The Law and Science of Expert Testimony (29-1.7 (1997)). In a Bendectin case preceding Daubert, Ealy v. Richardson-Merrell Inc., 897 F.2d 1159 (D.C. Cir.), cert. denied, 498 U.S. 950 (1990), Judge Abner Mikva emphasized that the question was not so much the validity of the plaintiff’s epidemiological reanalysis considered in isolation. Rather, the real hurdle for the plaintiffs was that their evidence was arrayed against a “massive” “wealth” of contrary published epidemiological studies reaching a contrary conclusion. Justice Harry Blackmun described the key defense evidence in his lead opinion in Daubert: “The defense expert Doctor Lamm stated that he had reviewed all the literature on Bendectin and human birth defects-more than 30 published studies involving over 130,000 patients. No study had found Bendectin to be a human teratogen . . . .Petitioners did not (and do not) contest this characterization of the published record regarding Bendectin.” Daubert, at 582-83. Mikva characterized the defense evidence as an “overwhelming body of contradictory epidemiological evidence.” Ealy, at 1161. He distinguished the Bendectin litigation from “a classic battle of the experts,” where the state of the research supporting the competing claims is more evenly balanced. In Daubert, Blackmun noted that several courts of appeal had found that there was a “massive weight” of epidemiological research rebutting the plaintiffs’ experts’ theory. Daubert, at 584. See also Sanders, “From Science to Evidence: The Testimony on Causation in the Bendectin Cases,” 46 Stan. L. Rev. 1, 10 (1993). If the defense showing in Daubert did not mandate a showing for the defense, the showing certainly came quite close. With the benefit of corroborative testimony from a court-appointed expert, the showing would almost assuredly have reached that stage. In extreme cases such as the Bendectin litigation, the opponent can argue that the proponent’s evidence is inadmissible as a matter of law because it is pitted against such a strong body of contrary evidence. A key footnote by Blackmun worth noting The proponent presents barely enough evidence to allow the judge to find that its expert’s hypothesis has been empirically validated, but the opponent’s rebuttal convinces the trial judge by a preponderance of the foundational testimony that the hypothesis has not been validated by sound scientific methodology. In the prior two states of the record, the judge makes a ruling as a matter of law that the proponent has not established the foundational fact. In the first state, the judge does so because the proponent’s foundational showing is so weak. In the second, the opponent’s foundational testimony is so overpowering that it would be irrational for the judge to find in the proponent’s favor. However, the opponent need not make such an overwhelming showing to prevail. In Daubert, Blackmun made it clear that Federal Rule 104(a) governs the judge’s ruling on the foundational question of whether the proponent’s theory rests on sound scientific reasoning. Under 104(a), the judge acts a true finder of fact. In a footnote, Blackmun expressly stated that the applicable measure of the burden of proof is a preponderance of the evidence. 509 U.S. at 592 n. 10. Even if the opponent’s evidence does not overwhelm the proponent’s foundational testimony, the opponent’s evidence could preponderate. If it does, by virtue of Rule 104(a), the opponent wins. The judge should resolve the foundational fact against the proponent, sustain the objection and bar the proponent’s evidence. Litigants should not treat Daubert as a benchmark, that is, as a threshold or target that they must meet in order to bar the opposing expert testimony. Daubert was a unique, extreme case in which the contrary defense evidence was overpowering, virtually mandating the exclusion of the epidemiological reanalysis. The defense showing need not be that overwhelming in order to warrant sustaining the defense objection. Fed. R. Evid. 104(a) governs the trial judge’s ruling. Under it, the judge has plenary authority as a finder of fact. In an appropriate case, you can and sometimes should analogize to Daubert, but thanks to Rule 104(a), you have other options. Edward J. Imwinkelried is the Edward L. Barrett Jr. Professor of Law at the University of California, Davis. He is co-author of Scientific Evidence (Lexis Law Pub. 3d ed. 1999.)

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