UPDATE ON DAUBERT V

UPDATE ON DAUBERT V. MERRELL DOW

PHARMACEUTICALS, INC., 113 S.Ct. 2786 (1993)

In State v. Sivri, 231 Conn. 115, 154 (1994) the court (Borden, J.) applied the Frye v. United States, 932 F. 1013, 1014 (D.C. Cir. 1923) standard to certain statistics admitted based on DNA testing. The court noted (231 Conn. at 154, n. 31) that it was applying the Frye standard because it had applied that standard in the past to novel scientific evidence, and because neither the state nor the defendant claimed in the trial court or on appeal that any test for the admission of scientific evidence other than Frye should be applied. The court stated (231 Conn. at 154, n. 31):

We note, however, that, interpreting the Federal Rules of Evidence, the United States Supreme Court recently abandoned the Frye test. Daubert v. Merrell Dow Pharmaceuticals, Inc.,, ___ U.S. ___, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); see State v. Borrelli, 227 Conn. 153, 163 n. 10, 629 A.2d 1105 (1993).

In State v. Borrelli, a decision authored by Justice Berdon, the court again noted that the U.S. Supreme Court in Daubert "has cast some doubt on the continued viability of the Frye test," but ducked the issue:

We need not, however, address this issue here. 227 Conn. at 163, n. 10.

Borrelli is important, however, as to the type of expert testimony to which Frye and Daubert, if adopted, will apply in Connecticut.

The court stated (227 Conn. at 163):

This court does not apply the Frye test to all types of expert testimony, even if technical or scientific concepts are involved. In State v. Hasan, supra, 489, we noted that we have previously applied the Frye test to "innovative scientific techniques . . . [including] polygraph testing . . . and human leukocyte antigen testing for paternity." (Citations omitted). See State v. McClary, 207 Conn. 233, 246, 541 A.2d 96 (1988) (finding that shaken baby syndrome is a diagnosis generally accepted in the medical field); State v. Tomanelli, 153 Conn. 365, 370, 216 A.2d 625 (1966) (applying the Frye test to the use of police radar). We have found the Frye test appropriate when the experimental, mechanical or theoretical nature of the scientific evidence had the "potential to mislead lay jurors awed by an aura of mystic infallibility surrounding scientific techniques, experts and the fancy devices employed." (Internal quotation marks omitted.) State v. Hasan, supra, 490.

Nevertheless, expert testimony need not satisfy the Frye test in cases where "the jury is in a position to weigh the probative value of the testimony without abandoning common sense and sacrificing independent judgment to the expert’s assertions based on his special skill or knowledge . . . Furthermore, where understanding of the method is accessible to the jury, and not dependent on familiarity with highly technical or obscure scientific theories, the expert’s qualifications, and the logical bases of his opinions and conclusions can be effectively challenged by cross-examination and rebuttal evidence." (Citation omitted.) Id., 491. For example, without even discussing the Frye test, we upheld the admissibility of expert testimony on the behavioral characteristics of child sexual abuse victims. State v. Spigarolo, 210 Conn. 359, 375-77, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989). In Spigarolo, the expert social worker’s specialized knowledge was derived from the evaluation or treatment of 100 to 150 cases of child sexual abuse. We upheld the admission of the expert testimony, finding that it met the prerequisite of being "helpful" to the jury. Id., 376.

The court noted Daubert in State v. Ali, 233 Conn. 403, 430, n. 15 (1995), but did not discuss its application to the issues in the case because it was not asked to do so.

The following information is likely to be useful in evaluating the applicability and meaning of Daubert.

1. In re Joint Eastern & Southern Dist. Asbestos Lit., 52 F.3d 1124 (2nd Cir. 1995) a decision authored by Judge Cabranes (with Newman, Chief Judge, and Miner, J.) holding that Daubert did not alter the standard for determining sufficiency of evidence as a matter of law, and that the district court improperly undertook weighing of scientific evidence, including epidemiological evidence, and granting judgment as a matter of law. The court reversed, holding evidence was sufficient to create jury questions. This case marks the "convergence of epidemiological evidence, probabilistic causation in carcinogenic torts, and the important issue of the extent to which a trial court may assess the sufficiency of scientific evidence" in light of Daubert. The complete text of the decision is reprinted at the end of these notes.

2. American College of Trial Lawyers standards and procedures for determining the admissibility of expert evidence after Daubert. The standards, with the permission of the American College, were published at 12 Forum No. 5, p. 1 (September/October 1994).

3. Kenneth Chesebro’s article "Taking Daubert’s Focus Seriously: The Methodology/Conclusion Distinction," 15 Cardozo L. Rev. 1745 (1994), reprinted with permission at 12 Forum No. 6, p. 27 (November/December 1994).

4. "Confronting the New Challenges of Scientific Evidence" 108 Harv. L. Rev. 1481 (1995). This is a 125 page analysis of Daubert. It begins with the following quote from Lander v. Higgins, 71 So.2d 242, 244 (La. Ct. App. 1954):

In response to the question: ‘Is that your conclusion that this man is a malingerer?’ Dr. Unsworth responded: ‘I wouldn’t be testifying if I didn’t think so, unless I was on the other side, then it would be a post traumatic condition.’

A. The article discusses the appellate standard of review, and notes In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717 (3d Cir. 1994), cert. denied, 115 S.Ct. 1253 (1995). Judge Becker analyzed the standard of review issue, 35 F.3d at 749-750, which is useful in understanding how the rule will be applied in the future. He Becker acknowledged that usually the trial court is best suited to assess the proposed expert testimony, but because the reliability standards of Federal Rules 702 and 703 are somewhat amorphous, there is a significant risk that the trial judges will set the threshold of admissibility too high and will in fact force plaintiff’s to prove their case twice. The solution is to use a heightened standard of review on appeal "when the district court’s exclusionary evidentiary rulings with respect to scientific opinion testimony will result in a summary or directed judgment." 35 F.3d at 750.

This hard look approach allows judges flexibility in making individualized determinations to admit expert testimony. At the same time, the standard gives novel scientific testimony greater leeway by subjecting decisions to exclude such testimony to greater scrutiny. Needless to say, the decision has become controversial, as defendants complain that they now have to prove inadmissibility twice.

The article also notes, p. 1528-29, that the standard of review issue is not easily resolved. A de novo standard of review gives appellate courts the chance to make their own assessment of the record, which will result in greater consistency in the admission or exclusion of certain types of testimony or methodologies, but clearly will usurp the trial court’s discretionary determinations.

The whole predicate of Judge Becker’s proposal is to leave the gate keeping responsibility with the district judge, and merely apply a heightened standard of review when the evidence is excluded. The standard remains abuse of discretion, as it always has been.

B. The article points to an internal inconsistency in Daubert. It argues that the Daubert court held that under Federal Rule of Evidence 702, which governs expert testimony about scientific, technical, or other specialized knowledge that will assist the trier of fact to understand the evidence or determine a fact in issue, trial judges must consider two prerequisites for the admissibility. The first, that the offered evidence must be reliable, its methodology based on scientific knowledge. Second, the offered evidence must be relevant, assisting the trier of fact in understanding the facts. To aid the trial courts in evaluating whether the reasoning and methodology underlying the scientific evidence are valid and thus reliable, the Daubert court offered a list of four factors: the testability of the evidence; peer review and publication; the known or potential error rate and the existence and maintenance of standards; and the general acceptance of the methodology in the scientific community. See Daubert, 113 S.Ct. at 2796-2797.

The article is critical of the four factor reliability requirement because it confuses scientific reliability and scientific validity. Whereas validity describes how well the scientific method reasons to its conclusion, reliability describes the ability of the scientific method to produce consistent results when replicated. Under Daubert, judges must focus on scientific validity when determining legal reliability, but they are really measuring scientific reliability. The analysis in this respect makes interesting reading - pp. 1534 to 1557.

C. The article discusses publications that are of use to trial judges. They are:

(1) Reference Manual on Scientific Evidence, published by the Federal Judicial Center, and the Carnegie Corporation of New York. This can be obtained from the Federal Judicial Center, telephone: 202-273-4070. The Center will make available to any caller a list of sources for obtaining the manual. The reference manual may also be obtained from Lawyers Weekly USA if you are a subscriber, for $25.00 by calling 1-800-451-9998, or faxing the request to 617-451-7325. The chapter on scientific evidence is controversial, as noted elsewhere in this issue.

(2) Science in the Court: Finding Your Way, to be published by the Einstein Institute for Science, Health, and the Courts. This organization plans to publish a series of bench books entitled "Science in the Court: Finding Your Way." Each volume of the series is planned to serve as a scientific primer for both state and federal courts on topics such as toxic torts, medical malpractice guidelines, medical genetics, DNA forensic evidence, and neuroscience and addictive disorders and senile dementia cases. The Institute also plans to produce separate volumes explaining the nature of the scientific method and discuss procedures that courts should follow to obtain independent scientific information and court appointed experts. The Einstein Institute for Science, Health and the Courts is a non-profit organization funded by the State Justice Institute (SJI) and the Human Genome Project of the U.S. Department of Energy. The SJI has cooperative inter-agency agreements with the National Institute of Justice and the Federal Bureau of Investigation. See p. 1517-1519.

5. Daubert v. Merrell Dow Pharmaceuticals Inc.: Method or Madness?, 27 Conn. Law Rev. 237 (Fall 1994). This article discusses the types of evidence that play significant roles in toxic tort cases: epidemiological studies, in vivo and in vitro animal studies, and chemical structure analyses.

The article argues that although the Daubert court reached the correct result, its "excursion into science was basically an exercise in futility." 27 Conn. Law Rev. at 238. It argues that in the easy cases, the court will reach the same results under Daubert as it did under Frye. In the hard cases, those involving novel scientific evidence, Daubert requires trial judges to substitute their judgment for that of the scientific community. Because the framework that the Daubert court fashioned to guide the judicial decision making is so broadly construed, a trial court can apply the Daubert factors as permissively or as restrictively as it deems appropriate. When all is said and done, the article argues, in the hard cases admissibility will be more a function of a judge’s view of the proper roles of judge and jury than of science, and this is just what happened under the Frye standard.

The article suggests as a solution full judicial use of the appointment of neutral experts in order to identify the merit of the scientific knowledge.