Admissibility of Scientific Evidence Under Daubert: The Fatal Flaws of ‘Falsifiability’ and ‘Falsification’

77 Pages Posted: 11 Dec 2015

See all articles by Barbara Pfeffer Billauer

Barbara Pfeffer Billauer

Institute of World Politics; International Program in Bioethics, U. of Porto; Foundation for Law and Science Centers, Inc.

Date Written: December 10, 2015

Abstract

The Daubert mantra demands that judges, acting as gatekeepers, prevent para, pseudo or ‘bad’ science from infiltrating the courtroom. To do so, the Judges must first determine what “science” is? And then, what ‘good science’ is?

It is submitted that Daubert is seriously polluted with the notions of Karl Popper who sets ‘falsifiability’ and ‘falsification’ as the demarcation line for that determination. This inapt philosophy has intractably infected case law, leading to bad decisions immortalized as stare decisis. Among other problems, is the intolerance of Popper’s system for multiple causation, a key component of toxic- torts. Thus, the primary objective of this work is to sanitize the philosophy of Popper from the judicial mindset before beginning to create a new gatekeeping paradigm.

I first show that Popper’s philosophy derived from, and is applicable only to, the world of (quantum) physics. In fact, it is totally inapt to the sciences of the courtroom: biology, chemistry and Newtonian (simple) physics. Next, I ‘falsify’ Popper’s thesis of ‘falsifiability’ using scientific examples. Third, I demonstrate, both by scientific and legal example, that Popper’s falsification system is unsuitable for forensic use. To my knowledge, this is the first attempt to use a science-based approach to evaluate Daubert in a systematic fashion. Finally, with the assistance of works of the philosopher Paul Hoyningen-Huene and the scientist George Gore, I recraft the definitions of ‘science’ and ‘good science,’ highlighting the importance of verifiability i.e. experiments that produce both scientifically valid and reliable results, as separate tests.

Keywords: scientific evidence, Daubert, products liability, toxic torts, Popper, falsifiability, falsifiable, science, evidence, junk science

JEL Classification: K13, K49, K41

Suggested Citation

Billauer, Barbara P., Admissibility of Scientific Evidence Under Daubert: The Fatal Flaws of ‘Falsifiability’ and ‘Falsification’ (December 10, 2015). Available at SSRN: https://ssrn.com/abstract=2701737 or http://dx.doi.org/10.2139/ssrn.2701737

Barbara P. Billauer (Contact Author)

Institute of World Politics ( email )

1521 16th St NW,
Washington, DC
United States
+1 202-462-2101 (Phone)

International Program in Bioethics, U. of Porto ( email )

Rua Dr. Roberto Frias
4200-464 Porto
Portugal

Foundation for Law and Science Centers, Inc. ( email )

1020 16th Street NW
Suite LL1
Washington, DC 20036
United States
972 54 344 6055 (Phone)

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