Noteworthy Forthcoming Article: A Clash of Studies — Using Removal Statistics to Assess Daubert

A new study by AndrewW. Jurs and Scott DeVito revisits – and disagrees with – the innovative 2005 study by Edward Cheng and Albert Yoon that examined the impact of Daubert on litigant behavior:  specifically, litigants’ likelihood to remove cases from state tofederal court.  

Since thesestudies are based on the idea that litigants might remove cases to federalcourt to take advantage of Daubert, itwould be interesting if litigators could comment (below) on whether they actuallydo seek removal (or fight removal) based on state/federal variance inexpert gatekeeping standards . . . .

Here’s theinformation on the new study:

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

Andrew W. Jurs (DrakeUniversity Law School) and Scott DeVito (Florida Coastal School of Law)

Catholic University LawReview, Vol. 62, 2013

Abstract:      

While Daubert was clearin its rejection of Frye and the substantive standard for expert admissibility,its effect on litigants has been hotly debated. Several studies since 1993 usedquantitative analysis through case study analysis and judicial surveys, tomeasure Daubert’s effect. Yet these methodologies have reached contradictoryresults. In 2005, Edward Cheng and Albert Yoon offered a revolutionary newapproach in their work Does Frye or Daubert Matter? A Study of ScientificAdmissibility Standards. They proposed that studying removal of cases fromState Court to Federal Court in the period 1990 to 2000 could quantitativelydemonstrate Daubert’s true effect. It works because a litigant could, byremoving a case to federal court, switch scientific admissibility standards insome circumstances. The aggregate change in behavior of all litigants cantherefore be measured. 

We agree that removal rate offers the best hope for assessing the true effectof Daubert, and so in this study we offer our analysis of removal rates usingeconometric tools never before applied in this area. Our analysis reveals astartling discovery: Daubert is the stricter standard for expert admissibility.Not only does a change removal rate after Daubert clearly demonstrate thisresult, but it is confirmed through a “shift back” to state courts when thestate also adopts Daubert and removal no longer entails a change in standards.Our results directly contrast with Cheng & Yoon’s conclusions, and so wealso revisit their study and deconstruct its methodology piece-by-piece. In sodoing, we will describe several errors in that study both explaining thedifferent results but also ultimately undermining its validity. 

Ultimately, our research into aggregate case data from real cases demonstratesa new and conclusive finding: Daubert has been the stricter standard.

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– JB