Daubert's Erie Problem
29 Pages Posted: 1 Aug 2007
Daubert effectively established the federal trial court judge as an "evidentiary gatekeeper." Under this new role, the Ninth and Eleventh Circuits created strict guidelines for the admission of scientific evidence. The new federal guidelines are sometimes more severe than the state standards within their circuits. A federal plaintiff otherwise able to admit evidence of causation in state court is barred from doing so in federal court, which leads to the case's dismissal on summary judgment. This outcome difference encourages eligible defendants to remove to federal courts, thus prejudicing some forum-state plaintiffs. This Note argues that the outcome differences between the Ninth and Eleventh Circuits and the state courts within their boundaries pose an Erie problem in diversity cases where the federal rule is stricter than the state rule. Part I discusses the history of the Bendectin trials. Part II explains the Supreme Court's response to those trials in Daubert v. Merrell Dow Pharmaceuticals, Inc. Part III contrasts the Ninth and Eleventh Circuits' federal standards with the more lenient standards applied by some state courts in those federal circuits. Part IV explains how courts properly conduct an Erie analysis. Part V applies Part IV's Erie analysis to demonstrate that the discrepancy in practices between state and federal courts constitutes an Erie violation under every Erie test (e.g., Byrd, Hanna, Gasperini). Finally, in Part VI, this Note proposes a novel solution to the Erie problem: federal circuits should always defer to state standards when determining evidence admissibility in diversity cases.
Keywords: Daubert, Erie, Ninth Circuit, Eleventh Circuit, Bendectin, comity, federalism, diversity, civil procedure, federal courts, evidence, scientific evidence
JEL Classification: K13, K40, K41
Suggested Citation: Suggested Citation