Article of Interest: The Stricter Standard, by Andrew Jurs & Scott DeVito

For decades, the D.C. Circuit’s opinion in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), ruled the roost in terms of the admissibility of expert opinion testimony. Pursuant to Frye, a court was only to admit expert opinion testimony if it was based upon a technique, technology, etc. that had “general acceptance” in the relevant expert community.

In 1993, however, in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court found that this Frye test no longer applied in cases governed by the Federal Rules of Evidence. In Daubert, the Court created the idea of judicial gatekeeper and held that in determining whether expert testimony is based upon reliable principles and methods under Federal Rule of Evidence 702, federal judges can consider factors such as

whether the “technique can be (and has been) tested,” “[w]hether it has been subjected to peer review and publication,” the “known or potential rate of error,” “whether there are standards controlling the technique’s operation,” and “whether the…technique enjoys general acceptance within a relevant scientific community.”

Part of the basis for this new Daubert test was that “junk science” that had general acceptance in a relevant expert community (e.g., the arson investigation community) might be admitted pursuant to Frye despite not withstanding external scrutiny. That said, in his majority opinion in Daubert, Justice Blackmun noted that

Nothing in the text of this Rule establishes “general acceptance” as an absolute prerequisite to admissibility. Nor does respondent present any clear indication that Rule 702 or the Rules as a whole were intended to incorporate a “general acceptance” standard. The drafting history makes no mention of Frye, and a rigid “general acceptance” requirement would be at odds with the “liberal thrust” of the Federal Rules and their “general approach of relaxing the traditional barriers to ‘opinion’ testimony.”

This would seem to imply that the replacement of the Frye test with the Daubert test was intended in part to allow for the admission of more expert opinion testimony. And, if that’s the case, has Daubert been successful in this regard? According to Professors Andrew Jurs and Scott DeVito in their forthcoming article, The Stricter Standard: An Empirical Assessment of Daubert’s Effect on Civil Defendants (Catholic University Law Review), the answer is “no.”

The methodology employed by Professors Jurs and DeVito is borrowed from a 2005 study by Edward Cheng and Albert Yoon. Basically, while the Daubert test replaced the Frye test under the Federal Rules of Evidence, many states continue to apply the Frye test. Therefore, if Daubert allows for the admission of more expert testimony than Frye, when we control for other variables, we would expect state court defendants (who are generally trying to get the plaintiff’s expert testimony excluded) to remove their cases to federal court at a lower rate in states that have not adopted Daubert than in states that have adopted Daubert. Conversely if Daubert allows for the admission of less expert testimony than Frye, when we control for other variables, we would expect state court defendants to remove their cases to federal court at a higher rate in states that have not adopted Daubert than in states that have adopted Daubert.

So, what has actually happened? According to the authors,

we created a database of approximately 4 million cases andcalculated removal rates during the period from 1990 to 2000. Based on ourtwo-step analysis of that data, we conclude that Daubert is a stricter standardthan Frye for the admissibility of expert testimony. First, by properlyidentifying, isolating, and removing other possible confounding variables, wewere able to isolate and then measure the effect of the federal courts’ adoption of Daubert on removal rates to federal court. These results demonstrate that,absent other countervailing effects, the adoption of Daubert by federal courtsresults in an increase in civil defendants removing the case to federal courts tobenefit from the courts’ restriction of expert testimony under that standard. Second, by using the same process, we were able to measure the counter-effecton removals when a state court adopted Daubert after the federal courts hadalready done so. These results demonstrate that a state court’s adoption ofDaubert after federal adoption decreases the rate of removals to federal court. This is consistent with our initial result because, after the state court adoptsDaubert, litigants gain no procedural benefit from shifting court systems whenboth apply the same reliability standard. Combined, these results demonstrateunequivocally that, when measured in the aggregate and based on actualbehavior in real cases, civil defendants believe the Daubert standard is morerestrictive to expert testimony and act accordingly. 

Rather than lay it all out here, I will direct readers to the article to assess the reliability of the authors’ methodology, but it certainly seems sound to me. And, assuming that the authors’ results are accurate, where does that leave us? As the authors note,

our study raises an issue that relates back to the origins of theDaubert standard itself. In Daubert, Justice Blackmun, writing for themajority, rejected the Frye standard because it was so inconsistent with “theliberal thrust of the Federal Rules.” Despite this proclamation, we now seethat the Daubert standard has tightened scrutiny beyond the Frye limits thattroubled Blackmun and the majority. If so, the Court badly misjudged theeffect Daubert would have on expert testimony, and the Court must now revisitthe issue to clarify the standard, either affirming the new reality or reanimatingthe lenient standard originally intended.

-CM