On Daubert, Daubertization, and being Daubertized

Ó 2000 Valpar International Corporation
All rights reserved.

The Daubert vs. Merrell Dow Pharmaceuticals case was decided by the U.S. Supreme Court in 1993. The case had to do with admissibility of expert scientific opinion in federal court cases.

The Daubert ruling overturned rulings of two lower federal courts. Those courts had refused to hear the expert testimony of the plaintiffs, referring back to a 70 year old case (Frye), which had held that, to be admissible in federal cases, scientific evidence should meet the standard of being “generally accepted” by the scientific community. That notion held sway from 1923 until the Daubert ruling, and often served to exclude scientific or other expert testimony from cases because it was not “generally accepted.”

In overturning those rulings, the Supreme Court held that the Federal Rules of Evidence now superceded the Frye standard. The Supreme Court ruled that Frye standard was

“at odds with the (Federal) Rulesí liberal thrust and their general approach of relaxing the traditional barriers to ‘opinion’ testimony.”

So, instead of making it harder for expert testimony to pass muster, the Daubert ruling made it easier.

The term “Daubertized” has made its way into the popular lexicon and is interpreted by many as though evidence brought before federal courts would now be subjected to a checklist that would determine its admissibility. In fact, the very opposite is true.

Justice Blackmun, who wrote the opinion for the court, specifically stated in that opinion that no such checklist would be applied:

“Many factors will bear on the inquiry (as to whether expert evidence will be admitted) and we do not propose to set out a definitive checklist or test.”

The courtís opinion then mentions several “pertinent” issues, including that of “peer review and publication,” which is seized upon by some product manufacturers as a necessary prerequisite for an FCE system. However, the court opinion stated:

“Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability, and in some instances, well-grounded but innovative theories will not have been published. Some propositions, moreover, are too particular, too new, or of too limited interest to be published.”

Providers of assessment services, including FCEs, should keep in mind:


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