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The Stricter Standard: An Empirical Assessment of Daubert's Effect on Civil Defendants

58 Pages Posted: 19 Jul 2013  

Andrew W. Jurs

Drake University Law School

Scott DeVito

Florida Coastal School of Law

Date Written: July 17, 2013

Abstract

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

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

Andrew W. Jurs (Contact Author)

Drake University Law School ( email )

2608 Forest Avenue
Des Moines, IA 50311
United States
515-271-2824 (Phone)

Scott DeVito

Florida Coastal School of Law ( email )

8787 Baypine Rd.
Jacksonville, FL 32256
United States
(904) 680-7741 (Phone)

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