When Daubert Gets Erie: Medical Certainty and Medical Expert Testimony in Federal Court

50 Pages Posted: 6 Oct 2008 Last revised: 17 Feb 2014

Date Written: 2000


When the United States Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc. in 1993, it changed the process and standards for admitting expert testimony in federal court. Since that decision, most federal courts have assumed that the Daubert analysis is the only standard governing the admissibility of expert testimony in federal court -- even in diversity medical malpractice and medical products liability cases.

However, Daubert did not modify, or even significantly discuss, the Erie doctrine, leaving questions unanswered regarding the admissibility of expert medical testimony when federal courts sit in diversity.

In particular, states often impose medical certainty requirements on expert medical testimony that can affect that testimony's admissibility, the expert's competence to testify, or the plaintiff's burden of proof. This article argues that because these state medical certainty standards generally are substantive enough under Erie to apply in diversity cases and do not directly conflict with the Federal Rules of Evidence or the Daubert analysis, federal courts sitting in diversity should apply the relevant state standard as well as the Daubert analysis in diversity cases that involve medical experts.

Keywords: Daubert, evidence, medical testimony, Erie doctrine, admissibility, diversity, expert witness

Suggested Citation

Craig, Robin Kundis, When Daubert Gets Erie: Medical Certainty and Medical Expert Testimony in Federal Court (2000). Denver University Law Review, Vol. 77, 1999-2000, FSU College of Law, Public Law Research Paper No. 463, Available at SSRN: https://ssrn.com/abstract=1279042

Robin Kundis Craig (Contact Author)

USC Gould School of Law ( email )

699 Exposition Boulevard
Los Angeles, CA 90089
United States

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