58 Pages Posted: 19 Jul 2013
Date Written: July 17, 2013
While Daubert was clear in its rejection of Frye and the substantive standard for expert admissibility, its effect on litigants has been hotly debated. Several studies since 1993 used quantitative analysis through case study analysis and judicial surveys, to measure Daubert’s effect. Yet these methodologies have reached contradictory results. In 2005, Edward Cheng and Albert Yoon offered a revolutionary new approach in their work Does Frye or Daubert Matter? A Study of Scientific Admissibility Standards. They proposed that studying removal of cases from State Court to Federal Court in the period 1990 to 2000 could quantitatively demonstrate Daubert’s true effect. It works because a litigant could, by removing a case to federal court, switch scientific admissibility standards in some circumstances. The aggregate change in behavior of all litigants can therefore be measured.
We agree that removal rate offers the best hope for assessing the true effect of Daubert, and so in this study we offer our analysis of removal rates using econometric tools never before applied in this area. Our analysis reveals a startling discovery: Daubert is the stricter standard for expert admissibility. Not only does a change removal rate after Daubert clearly demonstrate this result, but it is confirmed through a “shift back” to state courts when the state also adopts Daubert and removal no longer entails a change in standards. Our results directly contrast with Cheng & Yoon’s conclusions, and so we also revisit their study and deconstruct its methodology piece-by-piece. In so doing, we will describe several errors in that study both explaining the different results but also ultimately undermining its validity.
Ultimately, our research into aggregate case data from real cases demonstrates a new and conclusive finding: Daubert has been the stricter standard.
Keywords: Daubert, expert evidence, admissibility, gatekeeping, science and the law, experts, empirical
Suggested Citation: Suggested Citation
Jurs, Andrew W. and DeVito, Scott, The Stricter Standard: An Empirical Assessment of Daubert's Effect on Civil Defendants (July 17, 2013). Catholic University Law Review, Vol. 62, 2013. Available at SSRN: https://ssrn.com/abstract=2295003