235 (1986); Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later, 80 Colum. Although under increasing attack of late, the rule continues to be followed by a majority of courts, including the Ninth Circuit.3. The following timeline details key events in this case: 1. 951 F. 2d, at 1130-1131. Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. We recognize that, in practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. grounds. 1991) (Frye lives). by Dan Morales, Attorney General of Texas, Mark Barnett, Attorney General of South Dakota, Marc Racicot, Attorney General of Montana, Larry EchoHawk, Attorney General of Idaho, and Brian Stuart Koukoutchos; for the American Society of Law, Medicine and Ethics et al. Additionally, in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error, see, e. g., United States v. Smith, 869 F.2d 348, 353-354 (CA7 1989) (surveying studies of the error rate of spectrographic voice identification technique), and the existence and maintenance of standards controlling the technique's operation, see United States v. Williams, 583 F.2d 1194, 1198 (CA2 1978) (noting professional organization's standard governing spectrographic analysis), cert. may be challenged. The primary locus of this obligation is Rule 702, which clearly contemplates some degree of regulation of the subjects and theories about which an expert may testify. I think the Court would be far better advised in this case to decide only the questions presented, and to leave the further development of this important area of the law to future cases. Weinstein, 138 F. R. D., at 632. Petitioners' epidemiological analyses, based as they were on recalculations of data in previously published studies that had found no causal link between the drug and birth defects, were ruled to be inadmissible because they had not been published or subjected to peer review. Id., at 1130, quoting United States v. Solomon, 753, The court emphasized that other Courts of Appeals considering the risks of Bendectin had refused to admit reanalyses of epidemiological studies that had been neither published nor subjected to peer review. 7THE CHIEF JUSTICE "do[es] not doubt that Rule 702 confides to the judge some gatekeeping responsibility," post, at 600, but would neither say how it does so nor explain what that role entails. We believe the better course is to note the nature and source of the duty. I A. Held: The Federal Rules of Evidence, not Frye, provide the standard for admitting expert scientific testimony in a federal trial. Briefs of amici curiae urging affirmance were filed for the United States by Acting Solicitor General Wallace, Assistant Attorney General Gerson, Miguel A. Estrada, Michael Jay Singer, and John P. Schnitker; for the American Insurance Association by William J. Kilberg, Paul Blankenstein, Bradford R. Clark, and Craig A. Berrington; for the American Medical Association et al. 727 F. Supp. However (absent creditable grounds supporting such a link), evidence that the moon was full on a certain night will not assist the trier of fact in determining whether an individual was unusually likely to have behaved irrationally on that night. 10-14 (1986 and Supp. D. C. 358, 363364, 809 F.2d 54, 59-60 (applying the "general acceptance" standard), cert. In the 70 years since its formulation in the Frye case, the "general acceptance" test has been the dominant standard for determining the admissibility of novel scientific evidence at trial. applied to the facts at issue. Daubert v. Merrell Dow Pharmaceuticals, Inc., ___ U.S. ___, ___, 113 S.Ct. applicable Rules. Ante, at 593. See Rules 702 and 703. Similarly, the word "knowledge" connotes more than subjective belief or unsupported speculation. 56. Given the Rules' permissive backdrop and their inclusion of a specific rule on expert testimony that does not mention "general acceptance," the assertion that the Rules somehow assimilated Frye is unconvincing. These matters should be established by a preponderance of proof. 1991). Nothing in theRules as a whole or in the text and drafting history of Rule 702, 92-102 . Respondent removed the suits to federal court on diversity grounds. Rule Evid. Decided by Case pending. The petition for certiorari in this case presents two questions: first, whether the rule of Frye v. United States, 54 App. June 28, 1993: U.S. Supreme Court decision announced 2. Id., at 54-56. 879, 911-912 (1982); and Symposium on Science and the Rules of Evidence, 99 F. R. D. 187,231 (1983) (statement by Margaret Berger). 249, 256 (1986), our reference here is to evidentiary reliabilitythat is, trustworthiness. The Court constructs its argument by parsing the language "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, ... an expert ... may testify thereto .... " Fed. With him on the briefs were Kenneth J. Chesebro, Barry J. Nace, David L. Shapiro, and Mary G. Gillick. The various briefs filed in this case are markedly different from typical briefs, in that large parts of them do not deal with decided cases or statutory language-the sort of material we customarily interpret. 592-595. Rev., at 599. When the U. S. Supreme Court handed down its opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc., 125 L. Ed. denied, 506 U. S. 826 (1992); Brock v. No study had found Bendectin to be a human teratogen (i. e., a substance capable of causing malformations in fetuses). Green 645. prescription drug marketed by respondent. and maintenance of standards controlling its operation, and whether Nor does respondent present any clear indication that Rule 702 or the Rules as a whole were intended to incorporate a "general acceptance" standard. and publication, its known or potential error rate, and the existence 1 The decision in Daubert v Merrell Dow Pharmaceuticals2 sets forth criteria that federal courts must follow in admitting scientific evidence or excluding it from consideration by juries. (c) Faced with a proffer of expert scientific testimony under Rule See also C. Hempel, Philosophy of Natural Science 49 (1966) ("[T]he statements constituting a scientific explanation must be capable of empirical test"); K. Popper, Conjectures and Refutations: The Growth of Scientific Knowledge 37 (5th ed. March 30, 1993: Oral argument 3. by Joan E. Bertin, Marsha S. Berzon, and Albert H. Meyerhoff; for the Association of Trial Lawyers of America by Jeffrey Robert White and Roxanne Barton Conlin; for Ronald Bayer et al. 11 Although the Frye decision itself focused exclusively on "novel" scientific techniques, we do not read the requirements of Rule 702 to apply specially or exclusively to unconventional evidence. Yet there are important differences between the quest for truth in the courtroom and the quest, for truth in the laboratory. The Rules occupy the field, United States v. Abel, 469 U.S. 45, 49, and, although the common law of evidence may serve as an Ibid. In it, the Court set forth a new standard for determining the admissibility of scientific evidence in the federal courts of the U.S.' And, since the time Daubert was decided, subsequent decisions of the Supreme Court have D. C. 46, 47, 293 F.1d 13, 1014, for the rule that expert opinion based on a scientific technique is inadmissible unless the technique is "generally accepted" as reliable in the relevant scientific community. 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." The District Court granted respondent's motion for summary judgment. can cause birth defects on animal studies, chemical structure Ibid. Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence. Rule 702, governing expert testimony, provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Proposed testimony must be supported by appropriate validation-i. careful instruction on the burden of proof, rather than wholesale 592 DAUBERT v. MERRELL DOW PHARMACEUTICALS, INC. standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility. 249, 258 (1986). The Frye test has its origin in a short and citation-free 1923 decision concerning the admissibility of evidence derived from a systolic blood pressure deception test, a crude precursor to the polygraph machine. Share this link with a friend: Copied! On the basis of this review, Doctor Lamm concluded that maternal use of Bendectin during the first trimester of pregnancy has not been shown to be a risk factor for human birth defects. 727 F. 2 For example, Shanna Helen Swan, who received a master's degree in biostatistics from Columbia University and a doctorate in statistics from the University of California at Berkeley, is chief of the section of the California Department of Health and Services that determines causes of birth defects and has served as a consultant to the World Health Organization, the Food and Drug Administration, and the National Institutes of Health. They and their parents sued respondent in California state court, alleging that the birth defects had been caused by the mothers' ingestion of Bendectin, a prescription antinausea drug marketed by respondent. The Rules occupy the field, United States v. Abel, 469 U. S. 45, 49, and, although the common law of evidence may serve as an aid to their application, id., at 51-52, respondent's assertion that they somehow assimilated Frye is unconvincing. B. Cardozo, The Nature of the Judicial Process 178-179 (1921). Syllabus ; View Case ; Petitioner Daubert Et Ux., Individually And As Guardians Ad Litem For Daubert, et al. L. Rev. 827 (1989). In 2013, the Florida Legislature amended Section 90.702 of the Florida Evidence Code to adopt the standards for expert testimony as provided in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The merits of the Frye test have been much debated, and scholarship on its proper scope and application is legion.4. 5 Like the question of Frye's merit, the dispute over its survival has divided courts and commentators. The district court determined that plaintiffs could not meet their burden of proving that Bendectin caused Jason's and Eric's birth defects and granted Merrell Dow's motion for summary judgment. Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a),10 whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.ll This entails a preliminary assessment of whether the reasoning or method-. Moreover, such a rigid standard would be at Argued March 30, 1993 -- Decided June 28, 1993 *. The Frye Standard arose from Frye v. United States, a 1923 US Court of Appeals … App., p. 755 (citation omitted)-is premised on an assumption that the expert's opinion will have a reliable basis in the knowledge and experience of his discipline. being done in connection with this case, at the time the opinion is issued. Abstract Daubert and other minors, suffered limb reduction birth defects; they claim the defects were caused when their mothers ingested drugs manufactured by the Defendant, Merrell Dow Pharmaceuticals, Inc. (Defendant), while they were pregnant. Daubert v. Merrell Dow Pharmaceuticals is the landmark US Supreme Court case dealing with the admissibility of forensic expert opinion testimony. 92-102 Argued: March 30, 1993 Decided: June 28, 1993. Ibid. Jasanoff, S., Law’s Knowledge: Science for Justice in Legal Settings, 95 American Journal of Public Health s49 (2005). We noted that the Rules occupy the field, id., at 49, but, quoting Professor Cleary, the Reporter. Proposed testimony, we are told, must be supported by "appropriate validation." well credentialed experts, who based their conclusion that Bendectin by Richard A. Meserve and Bert Black; for the American College of Legal Medicine by Miles J. Zaremski; for the Carnegie Commission on Science, Technology, and Government by Steven G. Gallagher, Elizabeth H. Esty, and Margaret A. Berger; for the Defense Research Institute, Inc., by Joseph A. Sherman, E. Wayne Taff, and Harvey L. Kaplan; for the New England Journal of Medicine et al. Petitioners' primary attack, however, is not on the content but on the continuing authority of the rule. The Court speaks of its confidence that federal judges can make a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability, see S. Jasanoff, The Fifth Branch: Science Advisors as Policymakers 61-76 (1990), and in some instances well-grounded but innovative theories will not have been published, see Horrobin, The Philosophical Basis of Peer Review and the Suppression of Innovation, 263 JAMA 1438 (1990). Indeed, theories that are so firmly established as to have attained the status of scientific law, such as the laws of thermodynamics, properly are subject to judicial notice under Federal Rule of Evidence 201. ology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. Presumably, this relaxation of the usual requirement of firsthand knowledge-a rule which represents "a 'most pervasive manifestation' of the common law insistence upon 'the most reliable sources of information,'" Advisory Committee's Notes on Fed. exclusion under an uncompromising "general acceptance" standard, the admissibility of purportedly scientific evidence by assigning to the reliability standard is established by Rule 702's requirement that an We conclude by briefly addressing what appear to be two underlying concerns of the parties and amici in this case. ing a New Approach to Admissibility, 67 Iowa L. Rev. I defer to no one in my confidence in federal judges; but I am at a loss to know what is meant when it is said that the scientific status of a theory depends on its "falsifiability," and I suspect some of them will be, too. But I do not think. 1989), quoting United States v. Kilgus, 571 F.2d 508, 510 (CA9 1978). To the contrary, under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test. Frye, of course, predated the Rules by half a century. Twenty-two amicus briefs have been filed in the case, and indeed the Court's opinion contains no fewer than 37 citations to amicus briefs and other secondary sources. Of course, wellestablished propositions are less likely to be challenged than those that are novel, and they are more handily defended. The credentials of the others are similarly impressive. did not meet the applicable "general acceptance" standard for the The minors and their parents (Daubert) (plaintiffs) brought suit against Merrell Dow Pharmaceuticals (Merrell) (defendant), alleging that its product, Bendectin, caused the defects. That austere standard, absent from, and incompatible with, the Federal Rules of Evidence, should not be applied in federal trials.6. by Brian Stuart Koukoutchos, Priscilla Budeiri, Arthur Bryant, and George W Conk; and for Daryl E. Chubin et al. After extensive discovery, respondent moved for summary judgment, contending that Bendectin does not cause birth defects in humans and that petitioners would be unable to come forward with any admissible evidence that it does. Although petitioners had responded with the testimony of eight other well-credentialed experts, who based their conclusion that Bendectin can cause birth defects on animal studies, chemical structure analyses, and the unpublished "reanalysis" of previously published human statistical studies, the court determined that this evidence did not meet the applicable "general acceptance" standard for the admission of expert testimony. See id., at 61-66, 73-80, 148-153, 187192, and Attachments 12, 20, 21, 26, 31, and 32 to Petitioners' Opposition to Summary Judgment in No. analyses, and the unpublished "reanalysis" of previously published Because the deception test had "not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made," evidence of its results was ruled inadmissible. D. C. 46, 47, 293 F. What is the difference between scientific knowledge and technical knowledge; does Rule 702 actually contemplate that the phrase "scientific, technical, or other specialized knowledge" be broken down into numerous subspecies of expertise, or did its authors simply pick general descriptive language covering the sort of expert testimony which courts have customarily received? The Daubert test applies not only to “new or novel” scientific evidence, but to all other expert opinion testimony. In this regard respondent seems to us to be overly pessimistic about the capabilities of the jury and of the adversary system generally. 570 (S.D.Cal.1989). accepted" as reliable in the relevant scientific community. Kennedy, Souter, and Thomas, JJ., joined. WILLIAM DAUBERT, et ux., etc., et al., PETITIONERS v. MERRELL DOW PHARMACEUTICALS, INC. on writ of certiorari to the united states court of appeals for the ninth circuit [June 28, 1993] Justice Blackmun delivered the opinion of the Court. Respondent Merrell Dow Pharmaceuticals, Inc. Docket no. See, e. g., Brief for Ronald Bayer et al. See, e. g., Brief for Nicolaas Bloembergen et al. In Bourjaily v. United States, 483 U. S. 171 (1987), on the other hand, the Court was unable to find a particular common-law doctrine in the Rules, and so held it superseded. occasion, will prevent the jury from hearing of authentic scientific Ante, at 590-592. L. Rev. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 of the present rules exercises more control over experts than over lay witnesses." (a) Frye's "general acceptance" test was superseded by the Rules' This condition goes primarily to relevance. against respondent that the children's serious birth defects had been is the appropriate means by which evidence based on valid principles See Bourjaily v. United States, 483 U. S. 171,175-176 (1987). Rule Civ. Evidence which is not relevant is not admissible. 92-102. "Daubert v. Merrell Dow Pharmaceuticals, Inc." Oyez, www.oyez.org/cases/1992/92-102. He has served as a consultant in birth-defect epidemiology for the National Center for Health Statistics and has published numerous articles on the magnitude of risk from exposure to various chemical and biological substances. Additionally, in the event the trial court concludes that the scintilla of evidence presented supporting a position is insufficient to allow a reasonable juror to conclude that the position more likely than not is true, the court remains free to direct a judgment, Fed. Moreover, such a rigid standard would be at odds with the Rules' liberal thrust and their general approach of relaxing the traditional barriers to "opinion" testimony. Pp. 582 DAUBERT v. MERRELL DOW PHARMACEUTICALS, INC. JUSTICE BLACKMUN delivered the opinion of the Court. Daubert Et Ux., Individually And As Guardians Ad Litem For Daubert, et al. Rule Evid. 15-17. inquiry, including whether the theory or technique in question can be v. MERRELL DOW PHARMACEUTICALS, INC. certiorari to the united states court of appeals for the ninth circuit No. 4 See, e. g., Green, Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent Orange and Bendectin Litigation, 86 Nw. (d) Cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof, rather than wholesale exclusion under an uncompromising "general acceptance" standard, is the appropriate means by which evidence based on valid principles may be challenged. That even limited screening by the trial judge, on occasion, will prevent the jury from hearing of authentic scientific breakthroughs is simply a consequence of the fact that the Rules are not designed to seek cosmic understanding but, rather, to resolve legal disputes. In the endless process of testing and retesting, there is a constant rejection of the dross and a constant retention of whatever is pure and sound and fine." 3 pages. Let us take a closer look at the two standards. 570, 572 (SD Cal. " Ibid. In Part II-B, the Court concludes that reliability and relevancy are the touchstones of the admissibility of expert testimony. denied, 439 U. S. 1117 (1979), with Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1111, 1115-1116 (CA5 1991) (en banc) (Frye and the Rules coexist), cert. Rehnquist, C. J., filed an opinion concurring in part II-B, the judge should also mindful! J. Ziman, Reliable knowledge: an Exploration Malina and Jeffrey I. D. Lewis ; a... Curiae were filed for the Southern District of Californiagranted summary judgment in of. Frye standard 54, 59-60 ( applying the `` general acceptance '' standard ), reference... Cases, and W Glenn Forrester, 2799, 125 L.Ed.2d 469 ( 1993 ) by Martin, Briefs amici... 5 Like the question of Frye 's `` general acceptance '' as an absolute prerequisite to admissibility 67! 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Justia Annotations is a specific Rule that speaks to the contested issue Wisconsin review. System generally 's ruling 4 inquiry as a precondition to admissibility Jason Daubert and other minors ( )! Allows the Court reliability '' ( does application of the federal Rules of Evidence.5 agree... Court if its proponent can show that it is not bound by the scientific method. app., p. (... Finally and quickly Jeffrey I. D. Lewis ; for a Group of American law Professors thus a..., 92 L. Ed testimony in a federal trial which the Downing Court in turn partially relied ;. ; law 5210 - Spring 2017 than those that are novel, and validity... Than ; Champlain College ; law 5210 - Spring 2017 ; Opinions Nesson, Problems,,... Expert opinion testimony 02 ], pp at 169 ( citing Rules to. 508, 510 ( CA9 1978 ) an inference or assertion must be supported by `` appropriate validation. under... States Court of Appeals agreed and affirmed, citing Frye v. United States and. 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