Daubert v. Merrell Dow Pharmaceuticals - News

part 3 -

Petitioners and, to a greater extent, their amici exhibit a different concern. They suggest that recognition of a screening role for the judge that allows for the exclusion of "invalid" evidence will sanction a stifling and repressive scientific orthodoxy, and will be inimical to the search for truth. See, e.g., Brief for Ronald Bayer et al. as Amici Curiae. It is true that open debate is an essential part of both legal and scientific analyses. Yet there are important differences between the quest for truth in the courtroom and the quest for truth in the laboratory. Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly. The scientific project is advanced by broad and wide-ranging consideration of a multitude of hypotheses, for those that are incorrect will eventually be shown to be so, and that in itself is an advance. Conjectures that are probably wrong are of little use, however, in the project of reaching a quick, final, and binding legal judgment - often of great consequence - about a particular set of events in the past. We recognize that, in practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance that is struck by Rules of Evidence designed not for the exhaustive search for cosmic understanding, but for the particularized resolution of legal disputes. fn.13

IV

To summarize: "General acceptance" is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules - especially R.702 - do assign 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. Pertinent evidence based on scientifically valid principles will satisfy those demands.

The inquiries of the District Court and the Court of Appeals focused almost exclusively on "general acceptance," as gauged by publication and the decisions of other courts. Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

IT IS SO ORDERED.

FOOTNOTES

FN1. Doctor Lamm received his master's and doctor of medicine degrees from the Univ. of Southern Cal. He has served as a consultant in birth-defect epidemiology for the Nat'l Center for Health Statistics, and has published numerous articles on the magnitude of risk from exposure to various chemical and biological substances.

FN2. For example, Shanna Helen Swan, who received a master's degree in biostistics from Columbia Univ. and a doctorate in statistics from the Univ. of Calif. at Berkeley, is chief of the section of the Calif. Dept. of Health and Services that determines causes of birth defects, and has served as a consultant to the World Health Org., the FDA, and the Nat'l Institutes of Health. Id., at 113. Stuart A. Newman, who received his bachelor's in chemistry from Columbia Univ. and his master's and doctorate in chemistry from the Univ. of Chicago, respectively, is a professor at N.Y. Medical College, and has spent over a decade studying the effect of chemicals on limb development. Id. at 54. The credentials of the others are similarly impressive. See id. at 61, 73, 148, 187, and Attachments to Petitioners' Opp. to Summary Judgment, in No.84-20, 3-G(I) (SD Cal.).

FN3. For a catalog of the many cases on either side of this controversy, see P. Giannelli & E. Imwinkelried, Scientific Evidence 1-5 ('86 and Supp.'91).

FN4. See, e.g., Green, Expert Witnesses..., 86 Nw.U.L.Rev. 643 ('92) (hereinafter Green); Becker & Orenstein, The Federal Rules of Evid..., 60 Geo. WashLRev. 857 ('92); Hanson, James, Frye is Sixty-Five Years Old..., 16 West St.U.L.Rev. 357 ('89); Black, A Unified Theory..., 56 Ford.L.Rev.595 ('88), Imwinkelried, The "Bases" of Expert Testimony, 67 N.C.L.Rev. 1 ('88); Proposals for a Model Rule, 26 Jurimetrics J. 235 ('86); Giannelli, The Admissibility of Novel Scientific Evid., 80 Colum.L.Rev.1197 ('80); The Supreme Court, '86 Term, 101 Harv.L.Rev.7, 119 ('87).

Indeed, the debates over Frye are such a well-established part of the academic landscape that a distinct term - "Frye ologist" - has been advanced to describe those who take part. See Behringer at 239 ('86).

5. Like the question of Frye's merit, the dispute over its survival has divided courts and commentators. Compare, e.g., (U.S. v. Frye is superseded by the Rules of Evid.), Williams, 583 F.2d 1194 (CA2 '78) cert. denied, 439 U.S. 1117 ('79) (Frye and the Rules coexist); 3 J. Weinstein Weinstein's Evidence 702.03, ('88) (hereinafter Weinstein & Berger) (Frye is dead), and M. Graham, Handbook of Federal Evid. 703.2 (3d ed.'91) (Frye lives). See generally P. Giannelli & E. Imwinkelried, Scientific Evid. 1-5.

6. Because we hold that Frye has been superseded and base the discussion that follows on the content of the congressionally enacted Fed.R.Evid., we do not address petitioners' argument that application of the Frye rule in this diversity case, as the application of a judge-made rule affecting substantive rights, would violate the doctrine of Erie R. Co. v. Tompkins, 304 U.S.64 ('38).

FN7. THE CHIEF JUSTICE "do[es] not doubt that R.702 confides to the judge some gatekeeping responsibility," post, at 4, but would neither say how it does so nor explain what that role entails. We believe the better course is to note the nature and source of the duty.

FN8. R.702 also applies to "technical, or other specialized knowledge." Our discussion is limited to the scientific context because that is the nature of the expertise offered here.

FN9. We note that scientists typically distinguish between "validity" (does the principle support what it purports to show?) and "reliability" (does application of the principle produce consistent results?). See Black, 56 Ford.L.Rev. at 599. Although "the difference between accuracy, validity, and reliability may be such that each is distinct from the other by no more than a hen's kick," Starrs at 256('86), our reference here is to evidentiary reliability - that is, trustworthiness. Cf., e.g., Advisory Comm Notes on Fed.R.Evid. 602 ("`[T]he rule requiring that a witness who testifies to a fact which can be perceived by the senses must have had an opportunity to observe, and must have actually observed the fact' is a `most pervasive manifestation' of the common law insistence upon `the most reliable sources of information.'" (citation omitted)); Advisory Comm. Notes on Art. VIII of Rules of Evid. (hearsay exceptions will be recognized only "under circumstances supposed to furnish guarantees of trustworthiness"). [In a case involving scientific evid., evidentiary reliability will be based upon scientific validity].

10. R.104(a) provides:

"Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b) [pertaining to conditional admissions]. In making its determination, it is not bound by the rules of evidence except those with respect to privileges." These matters should be established by a preponderance of proof. See Bourjaily v. U.S., 483 U.S.171 ('87).

11. Although the Frye decision itself focused exclusively on "novel" scientific techniques, we do not read the requirements of R.702 to apply specially or exclusively to unconventional evidence. Of course, well-established propositions are less likely to be challenged than those that are novel, and they are more handily defended. Indeed, theories that are so firmly established as to have attained the status of scientific law, such as the laws of thermodynamics, properly are subject to judicial notice under R.201.

12. A number of authorities have presented variations on the reliability approach, each with its own slightly different set of factors. See, e.g., Downing, 753 F.2d, at 1238-1239 (on which our discussion draws in part); 3 Weinstein 70203; McCormick, Scientific Evid..., 67 Iowa L.Rev.879 ('82); and Symposium on Science..., 99 F.R.D.187 ('83). To the extent that they focus on the reliability of evidence as ensured by the scientific validity of its underlying principles, all these versions may well have merit, although we express no opinion regarding any of their particular details.

13. This is not to say that judicial interpretation, as opposed to adjudicative factfinding, does not share basic characteristics of the scientific endeavor: "The work of a judge is in one sense enduring, and in another, ephemeral. . . . In the endless process of testing and retesting, there is a constant rejection of the dross and a constant retention of whatever is pure and sound and fine." B. Cardozo, The Nature of the Judicial Process 178 ('21).

CHIEF JUSTICE REHNQUIST, with whom JUSTICE STEVENS joins, concurring in part and dissenting in part.

The petition for certiorari in this case presents two questions: first, whether the rule of Frye v. U.S. remains good law after the enactment of the Fed.R.Evid.; and second, if Frye remains valid, whether it requires expert scientific testimony to have been subjected to a peer review process in order to be admissible. The Court concludes, correctly in my view, that the Frye rule did not survive the enactment of the Federal Rules of Evidence, and I therefore join Parts I and II-A of its opinion. The second question presented in the petition for certiorari necessarily is mooted by this holding, but the Court nonetheless proceeds to construe R.702 and 703 very much in the abstract, and then offers some "general observations." Ante.

"General observations" by this Court customarily carry great weight with lower federal courts, but the ones offered here suffer from the flaw common to most such observations - they are not applied to deciding whether particular testimony was or was not admissible, and therefore they tend to be not only general, but vague and abstract. This is particularly unfortunate in a case such as this, where the ultimate legal question depends on an appreciation of one or more bodies of knowledge not judicially noticeable, and subject to different interpretations in the briefs of the parties and their amici. Twenty-two amicus briefs have been filed in the case, and indeed the Court's opinion contains no fewer than 37 citations to amicus briefs and other secondary sources.

The various briefs filed in this case are markedly different from typical briefs, in that large parts of them do not deal with decided cases or statutory language - the sort of material we customarily interpret. Instead, they deal with definitions of scientific knowledge, scientific method, scientific validity, and peer review - in short, matters far afield from the expertise of judges. This is not to say that such materials are not useful or even necessary in deciding how R.702 should be applied; but it is to say that the unusual subject matter should cause us to proceed with great caution in deciding more than we have to, because our reach can so easily exceed our grasp.

But even if it were desirable to make "general observations" not necessary to decide the questions presented, I cannot subscribe to some of the observations made by the Court. In Part II-B, the Court concludes that reliability and relevancy are the touchstones of the admissibility of expert testimony. Ante. R.402 provides, as the Court points out, that "[e]vidence which is not relevant is not admissible." But there is no similar reference in the Rule to "reliability." The Court constructs its argument by parsing the language "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, . . . an expert . . . may testify thereto. . . ." R.702. It stresses that the subject of the expert's testimony must be "scientific . . . knowledge," and points out that "scientific" "implies a grounding in the methods and procedures of science" and that the word "knowledge" "connotes more than subjective belief or unsupported speculation." Ante. From this it concludes that "scientific knowledge" must be "derived by the scientific method." Ante. Proposed testimony, we are told, must be supported by "appropriate validation." Ante. Indeed, in fn 9, the Court decides that "[i]n a case involving scientific evidence, evidentiary reliability will be based upon scientific validity." Ante, n.9.

Questions arise simply from reading this part of the Court's opinion, and countless more questions will surely arise when hundreds of district judges try to apply its teaching to particular offers of expert testimony. Does all of this dicta apply to an expert seeking to testify on the basis of "technical or other specialized knowledge" - the other types of expert knowledge to which R.702 applies - or are the "general observations" limited only to "scientific knowledge"? What is the difference between scientific knowledge and technical knowledge; does R.702 actually contemplate that the phrase "scientific, technical, or other specialized knowledge" be broken down into numerous subspecies of expertise, or did its authors simply pick general descriptive language covering the sort of expert testimony which courts have customarily received? The Court speaks of its confidence that federal judges can make a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid, and of whether that reasoning or methodology properly can be applied to the facts in issue." Ante. The Court then states that a "key question" to be answered in deciding whether something is "scientific knowledge" "will be whether it can be (and has been) tested." Ante. Following this sentence are three quotations from treatises, which not only speak of empirical testing, but one of which states that the "`criterion of the scientific status of a theory is its falsifiability, or refutability, or testability'" Ante.

I defer to no one in my confidence in federal judges; but I am at a loss to know what is meant when it is said that the scientific status of a theory depends on its "falsifiability," and I suspect some of them will be, too.

I do not doubt that R.702 confides to the judge some gatekeeping responsibility in deciding questions of the admissibility of proffered expert testimony. But I do not think it imposes on them either the obligation or the authority to become amateur scientists in order to perform that role. I think the Court would be far better advised in this case to decide only the questions presented, and to leave the further development of this important area of the law to future cases.