The Daubert Handbook: The Case, its Essential Dilemma, and its Progeny

152 Pages Posted: 4 Mar 2011  

G. Michael Fenner

Creighton University School of Law

Date Written: 1996

Abstract

This Article is about Daubert v. Merrell Dow Pharmaceuticals, Inc. It is not about whether Daubert is a good decision or whether it is a bad decision, although, in my view, Daubert is a pretty good decision given the statute the United States Supreme Court had to interpret. This Article is about what Daubert means: what it means inside of itself, what it means in light of the many pre-2000 cases that interpreted and refined the decision and expanded and contracted it.

Part II of this Article briefly discusses Daubert. This section discusses the essential dilemma of Daubert and why so many people immediately misunderstood the decision. The Daubert rule gives two apparently contradictory tests for the admissibility of expert witnesses under Federal Rule of Evidence 702. This section also discusses the essential dilemma of expert evidence in general: today's “schmexpert” as tomorrow's expert...and vice versa. Part II ends with some advice, advice from trial judges and trial lawyers and advice to trial lawyers and trial judges.

Part III begins with the two most important and thorough early post-Daubert federal expert-witness cases, the two most important early judicial interpretations of Daubert. Part III continues with a discussion of the “best of the rest” of the federal post-Daubert expert witness cases. To the men and women of the federal bench who must do the Daubert testing and to the women and men of the federal trial bar who must present the raw materials of Daubert testing, Part III offers a discussion of what federal courts are actually doing regarding the details of post-Daubert expert testimony.

Part IV is a Case Digest that includes every significant federal case decided in the first two and one-half years following the United States Supreme Court's opinion in Daubert.

Keywords: Daubert Federal Rule of Evidence 702

Suggested Citation

Fenner, G. Michael, The Daubert Handbook: The Case, its Essential Dilemma, and its Progeny (1996). Creighton Law Review, Vol. 29, No. 3, 1995-1996. Available at SSRN: https://ssrn.com/abstract=1774879

G. Michael Fenner (Contact Author)

Creighton University School of Law ( email )

2500 California Plaza
Omaha, NE 68178
United States

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