Daubert v. Merrell Dow Pharmaceuticals and the Local Construction of Reliability

Abstract

Scholars considering how expert testimony will fare under Daubert often apply the four dicta referenced by Justice Blackmun (testing, peer-review, error rate, and general acceptance) to determine whether such testimony will be admissible. In this article I critique this approach, contending that admissibility decisions cannot be adequately predicted by Daubert itself. Daubert has no clear legal rule for judges to apply, has no cognizable position on the degree of scrutiny expert testimony should face, and has no clear stance - even given the dicta - on what constitutes good science. When combined with the relative autonomy trial judges possess in making admissibility decisions, Daubert's essential ambiguity leads to what I call local constructions of reliability, disparate and often competing conceptions of what constitutes reliable expert evidence. What is considered reliable in one area of expert testimony, such as medical causation, will be quite different from what is required for another, such as handwriting expertise.

If Daubert leads to such variation among different spheres of expert testimony, how can we generalize or predict judicial decision-making? I argue that admissibility decisions can and should be modeled empirically. Viewing judges as goal-oriented actors, I transform likely goals for judges making Daubert decisions into relevant variables for empirical modeling. These goals include attention to the quality of expert testimony (if not always under the Daubert dicta), maintaining institutional stability and judicial autonomy when faced with controversial scientific claims, and advancing judicial policy preferences. I intend this discussion to serve as a template for further empirical work on Daubert.

Keywords: Daubert, expert testimony, judicial behavior