Daubert v. Merrell Dow Pharmaceuticals - News

UNITED STATES SUPREME COURT
No. 92-102

WILLIAM DAUBERT, ET UX., ETC., ET AL., PETITIONERS
v.
MERRELL DOW PHARMACEUTICALS, INC.

CERTIORARI TO THE U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued March 30, 1993 -- Decided June 28, 1993

Petitioners, two minor children and their parents, alleged in their suit against respondent that the children's serious birth defects had been caused by the mothers' prenatal ingestion of Bendectin, a prescription drug marketed by respondent. The District Court granted respondent summary judgment based on a well-credentialed expert's affidavit concluding, upon reviewing the extensive published scientific literature on the subject, that maternal use of Bendectin has not been shown to be a risk factor for human birth defects. Although petitioners had responded with the testimony of eight other well-credentialed experts, who based their conclusion that Bendectin can cause birth defects on animal studies, chemical structure analyses, and the unpublished "reanalysis" of previously published human statistical studies, the court determined that this evidence did not meet the applicable "general acceptance" standard for the admission of expert testimony. The Court of Appeals agreed and affirmed, citing Frye v. U.S., 54 App.D.C.46, 47, 293 F.1013, 1014, for the rule that expert opinion based on a scientific technique is inadmissible unless the technique is "generally accepted" as reliable in the relevant scientific community.

Held:

The Federal Rules of Evidence, not Frye, provide the standard for admitting expert scientific testimony in a federal trial.

(a) Frye's "general acceptance" test was superseded by the Rules' adoption. The Rules occupy the field, U.S. v. Abel, 469 U.S. 45, 49, and, although the common law of evidence may serve as an aid to their application, Id. at 51, respondent's assertion that they somehow assimilated Frye is unconvincing. Nothing in the Rules as a whole or in the text and drafting history of Rule 702 ["R.??"], which specifically governs expert testimony, gives any indication that "general acceptance" is a necessary precondition to the admissibility of scientific evidence. Moreover, such a rigid standard would be at odds with the Rules' liberal thrust and their general approach of relaxing the traditional barriers to "opinion" testimony.

(b) The Rules - especially R.702 - place appropriate limits on the admissibility of purportedly scientific evidence by assigning to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. The reliability standard is established by R.702's requirement that an expert's testimony pertain to "scientific . . . knowledge," since the adjective "scientific" implies a grounding in science's methods and procedures, while the word "knowledge" connotes a body of known facts or of ideas inferred from such facts or accepted as true on good grounds. The Rule's requirement that the testimony "assist the trier of fact to understand the evidence or to determine a fact in issue" goes primarily to relevance by demanding a valid scientific connection to the pertinent inquiry as a precondition to admissibility.

(c) Faced with a proffer of expert scientific testimony under R.702, the trial judge, pursuant to R.104(a), must make a preliminary assessment of whether the testimony's underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue. Many considerations will bear on the inquiry, including whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community. The inquiry is a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate. Throughout, the judge should also be mindful of other applicable Rules.

(d) Cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof, rather than wholesale exclusion under an uncompromising "general acceptance" standard, is the appropriate means by which evidence based on valid principles may be challenged. That even limited screening by the trial judge, on occasion, will prevent the jury from hearing of authentic scientific breakthroughs is simply a consequence of the fact that the Rules are not designed to seek cosmic understanding but, rather, to resolve legal disputes.

951 F.2d 1128 (CA9'91), vacated and remanded.

    BLACKMUN, J., delivered the opinion for a unanimous Court with respect to Parts I and II-A, and the opinion of the Court with respect to Parts II-B, II-C, III, and IV, in which WHITE, O'CONNOR, SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined.
    REHNQUIST, C.J., filed an opinion concurring in part and dissenting in part, in which STEVENS, J., joined.

Michael H. Gottesman argued the cause for petitioners.
Charles Fried argued the cause for respondent. *

* Briefs of amici curiae urging reversal were filed for the State of Texas et al.; the American Society of Law, Medicine and Ethics et al.; the Assn. of Trial Lawyers of America; Ronald Bayer et al; and Daryl E. Chubin et al.
    Briefs of amici curiae urging affirmance were filed for the U.S.; the American Insurance Assn.; for the American Medical Assn. et al.; the American Tort Reform Assn.; the Chamber of Commerce of the U.S.; the Pharmaceutical Manufacturers Assn.; the Product Liability Advisory Council, et al.; the Washington Legal Foundation; and Nicolaas Bloembergen et al.
    Briefs of amici curiae were filed for the American Assn. for the Advancement of Science et al.; the American College of Legal Medicine; the Carnegie Commission on Science, Technology, and Govt; the Defense Research Institute; the New England Journal of Medicine et al.; A Group of American Law Professors; Alvan R. Feinstein; and Kenneth Rothman et al.

OJ JUSTICE BLACKMUN delivered the opinion of the Court.

In this case, we are called upon to determine the standard for admitting expert scientific testimony in a federal trial.

IPetitioners Jason Daubert and Eric Schuller are minor children born with serious birth defects. They and their parents sued respondent in California state court, alleging that the birth defects had been caused by the mothers' ingestion of Bendectin, a prescription antinausea drug marketed by respondent. Respondent removed the suits to federal court on diversity grounds.

After extensive discovery, respondent moved for summary judgment, contending that Bendectin does not cause birth defects in humans and that petitioners would be unable to come forward with any admissible evidence that it does. In support of its motion, respondent submitted an affidavit of Steven H. Lamm, physician and epidemiologist, who is a well-credentialed expert on the risks from exposure to various chemical substances. fn.1 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 (i.e., a substance capable of causing malformations in fetuses). On the basis of this review, Doctor Lamm concluded that maternal use of Bendectin during the first trimester of pregnancy has not been shown to be a risk factor for human birth defects.

Petitioners did not (and do not) contest this characterization of the published record regarding Bendectin. Instead, they responded to respondent's motion with the testimony of eight experts of their own, each of whom also possessed impressive credentials. fn.2 These experts had concluded that Bendectin can cause birth defects. Their conclusions were based upon "in vitro" (test tube) and "in vivo" (live) animal studies that found a link between Bendectin and malformations; pharmacological studies of the chemical structure of Bendectin that purported to show similarities between the structure of the drug and that of other substance known to cause birth defects; and the "reanalysis" of previously published epidemiological (human statistical) studies.

The District Court granted respondent's motion for summary judgment. The court stated that scientific evidence is admissible only if the principle upon which it is based is "`sufficiently established to have general acceptance in the field to which it belongs.'" 727 F.Supp. 570, 572 (S.D.Cal.'89), quoting U.S. v. Kilgus, 571 F.2d 508, 510 (CA9'78). The court concluded that petitioners' evidence did not meet this standard. Given the vast body of epidemiological data concerning Bendectin, the court held, expert opinion which is not based on epidemiological evidence is not admissible to establish causation. 727 F.Supp., at 575. Thus, the animal cell studies, live animal studies, and chemical structure analyses on which petitioners had relied could not raise, by themselves, a reasonably disputable jury issue regarding causation. Ibid. Petitioners' epidemiological analyses, based as they were on recalculations of data in previously published studies that had found no causal link between the drug and birth defects, were ruled to be inadmissible because they had not been published or subjected to peer review. Ibid.

The U.S. Court of Appeals for the 9th Circuit affirmed. 951 F.2d 1128 ('91). Citing Frye, the court stated that expert opinion based on a scientific technique is inadmissible unless the technique is "generally accepted" as reliable in the relevant scientific community. 951 F.2d, at 1129-1130. The court declared that expert opinion based on a methodology that diverges "significantly from the procedures accepted by recognized authorities in the field . . . cannot be shown to be `generally accepted as a reliable technique.'" Id. at 1130.

The court emphasized that other Courts of Appeals considering the risks of Bendectin had refused to admit reanalyses of epidemiological studies that had been neither published nor subjected to peer review. 951 F.2d, at 1130. Those courts had found unpublished reanalyses "particularly problematic in light of the massive weight of the original published studies supporting [respondent's] position, all of which had undergone full scrutiny from the scientific community." Id. Contending that reanalysis is generally accepted by the scientific community only when it is subjected to verification and scrutiny by others in the field, the Court of Appeals rejected petitioners' reanalyses as "unpublished, not subjected to the normal peer review process, and generated solely for use in litigation." Id. at 1131. The court concluded that petitioners' evidence provided an insufficient foundation to allow admission of expert testimony that Bendectin caused their injuries and, accordingly, that petitioners could not satisfy their burden of proving causation at trial.

We granted certiorari, 506 U.S.914 ('92), in light of sharp divisions among the courts regarding the proper standard for the admission of expert testimony. Compare, e.g., U.S. v. Shorter, 809 F.2d 54, 59 (applying the "general acceptance" standard), cert. denied, 484 U.S.817 ('87), with DeLuca v. Merrell Dow, 911 F.2d 941, 955 (CA3'90) (rejecting the "general acceptance" standard).

II - A

In the 70 years since its formulation in the Frye case, the "general acceptance" test has been the dominant standard for determining the admissibility of novel scientific evidence at trial. See E. Green & C. Nesson, Problems, Cases, and Materials on Evidence 649 ('83). Although under increasing attack of late, the rule continues to be followed by a majority of courts, including the 9th Circuit. fn.3

The Frye test has its origin in a short and citation-free 1923 decision concerning the admissibility of evidence derived from a systolic blood pressure deception test, a crude precursor to the polygraph machine. In what has become a famous (perhaps infamous) passage, the then Court of Appeals for the District of Columbia described the device and its operation and declared:

"Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone, the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." 54 App.D.C., at 47.

Because the deception test had "not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made," evidence of its results was ruled inadmissible. Ibid.

The merits of the Frye test have been much debated, and scholarship on its proper scope and application is legion. fn.4 Petitioners' primary attack, however, is not on the content, but on the continuing authority, of the rule. They contend that the Frye test was superseded by the adoption of the Federal Rules of Evidence. fn.5 We agree.

- part 2