A Cognitive Scientist Looks At Daubert

Daubert v Merrell Dow Pharmaceuticals, Inc (1993) is a procedural move that, on the surface of it, appears not to change much. Judges had always had the authority to decide on the admissibility of evidence and the relevance of an argument. However, Daubert requires district judges in federal courts, on a challenge by either party, to hold a hearing ruling on the expertise of expert witnesses, with the judge determining the validity of any science used and the causal relevance of the expert testimony. The judge can exclude any expert testimony that does not pass the Daubert test of being "good science" and "relevant science," that is, exclude it at a Daubert hearing before it reaches the ears of the jury. And the judge can issue a summary judgment and dismiss the case if he or she finds expert testimony insufficient. Daubert has become an issue in important civil cases, for example, in product liability and toxic tort cases, where expert testimony is crucial.

General Electric Co v Joiner (1997) raised the bar for appeal so high that it made it virtually impossible to appeal a Daubert decision. Kumho Tire Co v Carmichael (1999) generalized Daubert to all kinds of experts, not just scientists. Daubert, Joiner, and Kumho may look like simple procedural extensions of the powers judges already had. Moreover, Daubert can, in certain cases, function positively to keep clearly insubstantial cases from clogging the courts. But Daubert has taken on a very different life of its own. Daubert has come to be employed as what I call a "strategic initiative," that is, a single move--apparently a mere procedural move--that has multiple, powerful effects and changes society in a way that no series of legislative moves could.