EDITOR'S COLUMN, Vol. 12 No. 6 (1994)

William F. Gallagher

EDITOR'S COLUMN

The Daubert Gatekeeping Focus: Methodology - Not Conclusions

In the last issue of the Forum (12 Forum No. 5, Sept/Oct 1994, p. 1) we published the American College of Trial Lawyers Standards and Procedures for Determining the Admissibility of Expert Evidence after Daubert. In this issue, we publish Kenneth Chesebro's article Taking Daubert's Focus Seriously: The Methodology/Conclusion Distinction. Mr. Chesebro presents an analysis, correctly in our judgment, that Daubert's focus is on the methodology of the expert, not the conclusion. Federal Rule of Evidence 702 authorizes courts to scrutinize only the "scientific validity" of the principles and methodology used by the expert, not the persuasiveness of the conclusion so generated. This is the "gatekeeping" responsibility of the trial court. In its decision the United States Supreme Court stated (113 S.Ct. at 2797):

The inquiry envisioned by Rule 702 is, we emphasize, a flexible

one. Its overarching subject is the scientific validity - and

thus the evidentiary relevance and reliability - of the

principles that underlie a proposed solution. The focus, of

course, must be solely on principles and methodology, not on

conclusions that they generate.

Mr. Chesebro points out that Merrell Dow's strategy in the Supreme Court was to ignore the uncontradicted record establishing that plaintiff's experts were using a valid methodology and instead argue that there was an overwhelming consensus among experts who had studied Bendectin that the drug was perfectly safe and could never cause birth defects, and that because plaintiff's experts had reached a contrary conclusion, their testimony must be inadmissible. Merrell's position was that the persuasiveness of an expert's opinion is germane to admissibility under Rule 702. This is exactly contrary to the U.S. Supreme Court's holding.

Nowhere did Merrell articulate any legal rationale for why the conclusion reached by an expert bears on the Rule 702 admissibility inquiry. As long as the expert is using a proper methodology, which is the subject of the Rule 702 inquiry, the conclusion is irrelevant.

We have published in this issue of the Forum at the end of the Supreme and Appellate Court Review Judge Peter Dorsey's ruling in Zuchowicz v. United States, which illustrates a correct analysis under Daubert.

For the most part an evidentiary hearing is not required. If focus is kept where it should be, as Mr. Chesebro points out, the gatekeeping responsibility of the trial court can be determined either on the trial or on preliminary motion. The elaborate procedure outlined by the American College of Trial Lawyers is thus unnecessary, except in the most complex of cases.