Questions Raised About Daubert

News shows today no longer merely report the day's events. After each major story, expert lined up on all sides of the issue to examine the latest bill in Congress, the outbreak of fighting on the other end of the globe or the latest investigation involving political figures.

And what talk show today would be complete without friends and family members screaming at each other, followed by an expert who can pinpoint just what went wrong and how to make it better?

Society certainly has become numb to the opinions of experts because it seems nearly every issue of the day involves an expert of some sort. It was in this atmosphere that Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), was decided four years ago.

And in the relatively short lift span of this case that dealt with the admissibility of expert and scientific evidence, an enormous amount of confusion has been apparent in courthouses across the country.

Exact just what direction Daubert is taking is unclear. But one thing is certain - in giving judges wide discretion with little guidance, the hundreds of decisions trying to apply Daubert are all over the lot.

Daubert requires federal judges to make a preliminary assessment of whether the reasoning or methodology underlying the expert testimony is scientifically valid and of whether that reasoning or methodology can be applied to the facts in issue." The intent was to give federal courts a gatekeeping" power intended to block junk science."

Too many judges, however, are attempting to evaluate the correctness of the expert's opinion rather than just judging whether the foundations for the belief are sound. A Daubert hearing is only meant to determine the general acceptance on methodology, not a general acceptance in the community on causation.

Did Daubert overrule 70 years of precedent hatched in Frye v. United States, 293 F. 1013 (1923)? Absolutely not. In fact, in Daubert the Supreme Court of the United States was considering the application of the Federal Rules of Evidence in that case. States were left with the right to choose whichever standard they wanted for their own rules of evidence.

Many states - including Illinois - continue to embrace the so-called Frye standard, which stands for the admissibility of an expert's opinion only if it was based on a scientific technique sufficiently established to have gained general acceptance in the particular field in which it belongs."

The Daubert decision raises many issues, such as how local courts deal with Daubert and how the evaluation of methodology blurs with the substance of an expert's conclusions. Questions are also raised about constitutional considerations and the standard of appellate review for scientific evidence.

Another major issue concerns the cottage industry created by Daubert, in which pro forma hearings are being held in nearly every complicated case in an effort to restrict or bar expert testimony.

Science is definitely getting better. That's clear from watching a device the size of a microwave oven crawl around Mars. And there's no doubt that good science plays a critical role in the courthouse.

How could anyone question that after the use of experts in the highly-publicized trials of O.J. Simpson and Erik and Lyle Menendez, the breast implant cases, tobacco litigation - cases that turned on scientific evidence.

In our technology-driven lives, judges must not lose sight of their important role as gatekeepers." However, nor must they be over-zealous in taking over the jury's role in considering the weight and credibility of evidence that should properly be put before them at trial. Daubert was not intended to turn judges into surrogate scientists.

Many scientists would agree that major advances in science and medicine, originally perceived as junk science," are today's established theories. DNA analysis is one such area. Judges should not be put in the position of determining what scientific studies are acceptable, nor in discouraging the development of new ideas - ideas that typically were not constructed for the purpose of withstanding the rigors of the legal method.

Most importantly, the admissibility of evidence must be flexible enough to accommodate the constant changes occurring in the scientific community. Daubert certainly never intended to stifle that.