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FRAGMENTING KNOWLEDGE, MISCONSTRUING RULE 702:
How Lower Courts Have Resolved
the Problem of Technical and Other Specialized Knowledge in
Daubert v. Merrell Dow Pharmaceuticals, Inc.
Shubha Ghosh(*)
Table of Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
I. Daubert and the Fragmentation of Knowledge . . . . . . . . . . . . . . 3
II. A Survey of Lower Court Approaches . . . . . . . . . . . . . . . . . . 12
II.A. The Dualist Approach in Federal and State Courts . . . . . . . . . . . 12
II.B. The Monist Interpretation in Federal and State Courts . . . . . . . . 23
II.C. Legal Schizophrenia in the Land of Babel: Wither Daubert? . . . . . . 25
III. Understanding and Expanding Daubert's Definition of Science . . . . . 26
III.A. Experience and Expertise: Is Social Science a Science Under Daubert? . 26
III.B. Recognizing Social Science Under Daubert . . . . . . . . . . . . . . . 31
III.C. Applications to Remedies . . . . . . . . . . . . . . . . . . . . . . . 39
III.C.1. Future Lost Profits in Intellectual Property and Contract . . . . . . 40
III.C.2. Future Lost Earnings in Torts and Lost Value in Property . . . . . . . 44
III.C.3. Hedonic Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
III.D. Methodology and Expert Knowledge . . . . . . . . . . . . . . . . . . . 56
IV. Implications for Carmichael . . . . . . . . . . . . . . . . . . . . . 56
V. The Preferred Holding in Carmichael . . . . . . . . . . . . . . . . . 60
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The 1993 Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.,(1) called on federal trial judges to screen out "junk science" by ensuring that an expert's testimony rests both on a reliable foundation and is relevant to the issue before the court. However, the Daubert Court rejected the requirement that the "general acceptance" by the relevant scientific community was necessary for the admissibility of scientific evidence under the Federal Rules of Evidence. Instead, the Court set forth a multiple part test for admissibility. Whether the theory or technique has been subjected to peer review or publication, its error rate, whether it can be tested, and its acceptance within the scientific community, were all factors that were considered in determining admissibility.
Although the Daubert decision defined the standard for admissibility of "scientific" expert testimony, the question as to whether this standard should apply to other experts such as engineers, doctors, and economists has remained unresolved. This has led to a split in the standard applied by the federal circuits with some circuits taking a "monist" view, applying the same standard for admissibility to all scientific, technical and other specialized knowledge. Other circuits have taken the "dualist" view and held that the Daubert analysis applies only to scientific knowledge and not to technical and other specialized knowledge.
Recently, the Supreme Court heard Carmichael v. Samyang Tire, Inc.(2) The court considered whether testimony by a tire expert should be admitted in a case involving whether a minivan tire was defective and thus was the cause of a crash which killed one person. In allowing the admissibility of the testimony, the appeals court rejected the trial court's conclusion that the testimony did not meet the Daubert standard. Since the testimony was based upon the personal experience of the expert, it did not have to meet the standard defined in Daubert for scientific evidence.
This Article discusses the extent of the circuit split regarding the standard required for admissibility of technical and other specialized knowledge and outlines the importance of defining the correct standard for admissibility of this type of expert testimony. In particular, the standards set forth for the admissibility of "social science" based testimony are reviewed. The Article concludes that the Court should adopt a <-- 1 J. INTELL. PROP. 1, 3 --> monist viewpoint and hold that the Daubert analysis should apply for all expert knowledge, and not just to scientific testimony. This approach would be consistent with the language of Rule 702 of the Federal Rules of Evidence and with the holding in Daubert. It would also avoid the danger of the introduction of junk science into the courtroom.
I. Daubert and the Fragmentation of Knowledge
To what types of knowledge does Daubert apply? This is the crucial question left unanswered by the United States Supreme Court in its 1993 decision. It is also the question that confronts the Court in Carmichael during its next term. Rule 702 of the Federal Rules of Evidence pertains to the admissibility of expert testimony in "scientific, technical or other specialized knowledge." The Daubert Court expressly addressed the standard of admissibility for "scientific knowledge" but expressly left open the question of what standard should be applied to "technical or other specialized knowledge."(3) Federal and state courts have been grappling with this question since 1993 with a patchwork of results. This Article describes and categorizes the many splits among circuit and state court decisions on this issue and advocates on the basis of these splits, as well as Supreme Court precedent, that the Court should adopt a "monist interpretation" of Rule 702.
The gravity of the problem of how to interpret Rule 702 can be illustrated with a simple example. A plaintiff is suing an electric company for physical and emotional harm resulting from exposure to electromagnetic fields ("EMF"). She wishes to introduce the testimony of the following experts: (1) a biophysicist to testify on the causal relation between exposure to EMF and cancer; (2) an engineer to testify on the faulty design of the defendant's lines and generator; (3) a psychiatrist to testify on the psychological effects that result from being diagnosed with cancer; and (4) an economist to testify on the amount of damages. Should any of these experts be permitted to testify?
Prior to Daubert, the answer to this question would rest on the standard of general acceptance, as articulated in Frye v. United States.(4) This untailored, one size fits all standard rests on deferring to the judgments of the relevant scientific community <-- 1 J. INTELL. PROP. 1, 4 --> to ascertain scientific validity. If the subject of the expert's testimony was not generally accepted within the relevant scientific community, then the testimony could be excluded.(5) How general acceptance is gauged is the controversial issue and one of the key issues on which the Supreme Court granted certiorari in Daubert.(6) As applied to the experts at issue in the hypothetical, the trial court in making its determination regarding admissibility would look to see how other biophysicists or medical researchers would regard the expert's testimony. The court would also look to see if other engineers, psychiatrists, or economists would concur with the respective testimonies of the other experts. Although the court may be confronted with quite different standards and viewpoints on what would constitute "knowledge," from a legal viewpoint the Frye standard would constitute a "monist standard."(7) The court's legal <-- 1 J. INTELL. PROP. 1, 5 --> standard for admissibility would be the same for all fields of knowledge. Under Daubert, the results would be quite different. The Supreme Court left open the question of whether its holding applied to technical and other specialized knowledge as well as scientific knowledge. Several elements of the Court's reasoning, however, would support a monist interpretation. According to the Court, a Rule 702 inquiry entails a consideration of the expert's qualifications, the scientific validity of his testimony, and the fit of the testimony to the specific trial issue. In ascertaining scientific validity, the Court offered the following four guidelines: (1) is the subject of the testimony falsifiable or testable?; (2) is the subject of the testimony derived from techniques with known error rates?; (3) has the testimony been subjected to peer review?; and (4) has the subject of the testimony been generally accepted either in terms of its methodology or conclusions?(8) The Court's use of the second factor suggests that it may have had more than pure scientific testimony in mind. By referring to techniques, the Court seems to suggest that technical knowledge may also be subject to the Daubert factors.
Further support for a monist interpretation is provided by noticing that the expert at issue in Daubert was an "epidemiologist." Epidemiology is not a laboratory science in the traditional sense; its methodology is predominately statistical.(9) The conclusions of epidemiologists cannot be tested except for the detection of errors in statistical computation or modeling.
Epidemiological conclusions could be falsified in the sense that facts can be found that would contradict a given conclusion. However, since the conclusions are stated in a statistical or probabilistic manner, true rejection of prior conclusion cannot occur even though statistical refinements are possible. In this way, an epidemiologist studying the spread of disease is no different from an economist studying price fixing in a market, an accountant analyzing financial records, or perhaps a psychiatrist trying to discern mental disorders in a population.(10)
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Under the monist interpretation, each of the experts in the hypothetical, the biophysicist, the engineer, the psychiatrist and the economist would have to satisfy the same standard. Each would have to jump the same hurdle and the failure of one to surmount the obstacle would potentially undermine the entire case. Interestingly, Daubert's four factors are so broad that even under a monist approach the hurdle as applied may be lower for one expert than another. A monist approach as applied may not in fact be a uniform one, a point returned to in the context of the case analysis.
Although Daubert allows for a monist interpretation, the opinion is also consistent with a "dualist interpretation," i.e. a different standard for technical and other specialized knowledge than was articulated for scientific knowledge. The fact that the Court reserved this precise question for future resolution suggests that Rule 702 might require a double standard for knowledge.
Furthermore, the Court's reliance on falsificationism also would militate against monism. Falsificationism, a concept from the philosophy of science associated with Karl Popper, is a method for distinguishing between scientific and non-scientific conclusions based on the ability of rejecting the conclusion as true.(11) For example, the conclusion that the Earth was formed in seven days is a non-scientific one because it can never be disproved through any mechanism that we can devise and agree would be applicable to answer the question. On the other hand, the statement that the Earth is flat is a scientific one because it can be disproved. Furthermore, not only is the statement "the Earth is flat" falsifiable, but it is a statement that has been falsified. By way of contrast, the statement that the Earth was formed in seven days could be true or false; the statement is unscientific from the perspective of falsificationism because we can never disprove it. The Court also spoke about testability more generally, which allowed the Court to include verificationism, or the ability to prove conclusions as true, as the other indicator to discriminate between scientific and non-scientific statements. Many fields of knowledge are not subject to falsifiability or verifiability. Psychiatry would be the principle example. Economics and many other social sciences would be others.(12) <-- 1 J. INTELL. PROP. 1, 7 --> By choosing testability as the criteria for demarcating science from non-science, the Court could not have meant to simply exclude a substantial field like psychiatry from the purview of Rule 702. Therefore, the Court must have intended to reserve the applicability of Daubert to scientific knowledge and leave open the question of other specialized knowledge for another case.
Under the dualist approach, the four experts in the hypothetical would have quite different hurdles to overcome. The height of the hurdles, however, may be hard to predict given silence on what standard would in fact apply to non-scientific knowledge. Ponder the more difficult question of how to determine what expert is speaking for science and which is not. If none are found to be scientific, has the dualist standard then slipped back into a monist one? Or are there further differences to be found among the non-sciences?
Courts have split along monist and dualist lines post-Daubert. The Court's reasoning, its disregard in many ways for the methodology of the epidemiological testimony at issue in Daubert, and its crude reliance on philosophy of science all foreshadow the confusion as all federal courts and many state courts confront the problem of how to deal with expert testimony that may not be traditionally scientific.
As with Frye, the monist approach is a one size fits all standard under Daubert which requires the trial court to consider elements of the specific science in determining validity. Under the monist interpretation, Daubert differs from Frye only in degree with Frye dictating complete deference to the scientific community and Daubert warranting closer judicial scrutiny.(13) The dualist approach, however, would imply a greater break between Daubert and Frye. The characteristic of the break will depend largely on which type of dualism one reads in Daubert.(14)
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Daubert would support three types of dualism. Dualism Type One would apply to Daubert factors to scientific knowledge alone and exclude technical and other specialized knowledge. Under this view, Daubert applies only to scientific knowledge but not to the testimony of social scientists or those with technical expertise (such as the engineer or the tire expert). The question remains as to what standard would apply to technical and other specialized knowledge, but the result would be that all such knowledge would be subjected to the same, non-Daubert standard.
In contrast, Dualism Type Two would read Daubert to apply to hard and soft science but not to applied knowledge. Under this view, both social science and natural science would be subjected to the Daubert factors, but applied fields would not be. The economist testifying as to market theories relevant to an antitrust claim would be subjected to Daubert; the accountant testifying to damages based on financial data would not. The biophysicist would be subjected to Daubert; the doctor not. Again, the question remains as to what standard would apply to the applied field. However, the crux of Dualism Type Two is that hard science and soft science would be subjected to the same standard.
Finally, under Dualism Type Three, there would be a split not only between hard and soft science but also between theoretical and applied versions of each. Not only would the economist and accountant be subjected to different standards, but so <-- 1 J. INTELL. PROP. 1, 9 --> would the economist and biophysicist. To call this dualism may be stretching the term since this version could quite easily degenerate into an uncentered, pluralistic standard. Knowledge under Dualism Type Three would be divided along two dimensions: hard vs. soft science and applied vs. theoretical. In many cases where the court has adopted a dualistic reading of Daubert as applied to technical and other specialized knowledge, the result has been exactly Dualism Type Three, a fact specific determination of what is scientific grounded in a general standard of helpfulness and relevance.
In an analysis of post-Daubert cases that have addressed the question of whether Daubert applies only to scientific knowledge, there are interesting patterns among the circuits and states. Of the twelve federal circuits, six have adopted a monist interpretation of Daubert (the First, the Third, the Fifth, the Seventh, the Eighth, and the D.C. Circuits). The remaining six have adopted some version of the dualist interpretation of Daubert. It is unclear which version best characterizes each circuit, but the cases suggest that Dualism Type Three is the most appropriate category. Within each circuit, there are important state-federal splits on this issue. For example, while the Seventh Circuit has adopted a monist interpretation of Daubert in interpreting its own rules of evidence, it has also expressly adopted a dualist reading of the case. Within the dualist circuits, West Virginia, Kentucky, Oregon, and New Mexico (each having expressly adopted Daubert in interpreting its rules of evidence) have adopted monist interpretations of the opinion. Finally, within the dualist circuits, the states that still utilize Frye (including among many others California and New York) ostensibly are still utilizing a monist standard for the admissibility of expert testimony.
Other than serving as curiosum on the influence and spread of Daubert and its varied interpretations, there are four principal reasons why these discrepancies and conflicts are important to identify.
1. Circuit Split. The circuit split suggests that the issue of how Daubert would apply to technical and other specialized knowledge will be before the Supreme Court in the near future. At that point, the court will have to adopt either a monist or some version of the dualist view. The results from the natural experiment of how the lower federal and state courts have addressed the issue as discussed in this Article will guide that decision on how properly to interpret Rule 702. The surprising result is that either choice may lead to the same standard in the following sense. A monist view would ostensibly subject all knowledge to the same standard. As applied, this standard may become watered down and degenerate into a field-by-field standard. A dualist view would also degenerate as courts grapple with the threshold issue of how to classify knowledge as either hard or soft, scientific or technical, or theoretical or applied and the subsequent issue of what standard to apply. The analysis of the cases suggests surprisingly that Daubert is perhaps so liberal and flexible that any road taken will lead <-- 1 J. INTELL. PROP. 1, 10 --> to Babel.(15)
2. Summary Judgment. The admissibility decision under Daubert is intimately intertwined with the grant of summary judgment. It is common practice for either the plaintiff or defendant to move for summary judgment and for exclusion of an expert witness simultaneously.(16) The legal theory underlying this practice is that since the proffered witness's testimony does not satisfy Daubert and hence cannot be admitted, the nonmoving party cannot meet his burden of proof and summary judgment should be granted to the moving party.(17) This strategy would be exacerbated by a dual standard for Daubert. If, for example, an accountant testifying on technical knowledge, then there would be an incentive to use accountants rather than economists as experts even though both may be testifying to the same issue. However, a monist standard could result in too high a standard for admissibility. A study of how courts have interpreted the problem of Daubert and technical and other specialized knowledge would highlight these problems.
3. Forum Shopping. Splits between
federal and state courts on admissibility of expert witnesses provides the
basis for forum shopping. Since expert witnesses can determine the
outcome of many cases, the forum's rule regarding admissibility under Daubert
will determine the ease of obtaining a plaintiff's or defendant's
judgment. A classic example of this federal-state conflict is
offered by
4. Daubert versus Frye. The larger question is whether the transition from Frye to Daubert has made a difference. The typical complaints about Frye, that it was standardless, that it led to a battle of the experts, that it substituted the scientific community's judgment for that of the court's, are not mitigated by a shift to Daubert.(20) In the context of what standards should apply to technical and other specialized knowledge, these problems have been exacerbated. At the outset, the problems may not be eliminated by adopting a monist interpretation of Daubert because, as suggested above, this interpretation would more than likely lead to the same result as a dualist interpretation. The underlying problem is one of finding one legal standard for validity of knowledge that can be applied across the varied disciplines of human knowledge. The sole advantage that Daubert has over Frye in this regard is that Daubert allows for judicial scrutiny of knowledge in a way that Frye did not.(21) The introduction of judicial scrutiny allows for considerations of legal policy and standards as guideposts that the deferential approach of Frye ignored. The best solution perhaps is one that treats each discipline of knowledge sui generis and allows the trial court judge in its own discretion to determine whether the expert's conclusions and method of deriving conclusions meets a legal standard of adequacy. "What is science?" is not a question left to the experts or a pure question of law, but one of legal fact informed by the need for the testimony and its reliability.(22)
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The remainder of this Article demonstrates how these four concerns are implicated in federal and state court resolutions of the intractable question of whether the Daubert standards apply to not only scientific knowledge, but also to technical and other specialized knowledge.
II. A Survey of
II.A. The Dualist Approach in Federal and State Courts
Table One presents information on the dualist circuits and states within each circuit.(23) As of this writing, six federal circuits have expressly stated that two different standards apply for scientific knowledge and technical or other specialized knowledge. Of these five, the Ninth Circuit is the only one that has express equivocation on the question, a problem discussed in more detail below. These six circuits represent 30 states, 17 of which have adopted Daubert or some version thereof in the interpretation of state evidentiary rules. The remaining 13 have retained Frye. Since arguably Frye itself is a monist standard, this conflict between federal circuit and state laws poses important federalism and Erie issues. Of the 17 Daubert states, four have expressly adopted a monist interpretation of Daubert in reading their state law, creating further conflicts.
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|
Circuit |
Standard for technical and other specialized knowledge |
Social Science directly addressed? |
States within Circuit and approach under state law |
|
2d |
32 F.3d 19 |
Yes, psychiatrist and accountant/economist |
Connecticut (D) (N) |
|
4th |
1997 U.S. App. Lexis 24038 |
Yes, accountant/economist |
Maryland (F) (N) |
|
6th |
25 F.3d 1342 |
Yes, psychiatrist |
Kentucky (D) (Monist) |
|
9th |
122 F.3d 803 |
Yes, psychiatrist, sociologist, economist |
Alaska (F) (N) |
|
10th |
82 F.3d 1513 |
NO |
Colorado (F) (N) |
|
11th |
131 F.3d 1433 |
NO |
Alabama (F) (N) |
TABLE
ONE: DUALIST FEDERAL CIRCUITS
(F): Frye; (D):
Daubert; (Monist): state court adopts monist interpretation of Daubert;
(N): state court has not addressed monism/dualism question
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An analysis of these federal and state responses focuses on four questions: (1) what was the court's basis for adopting a dualist approach?; (2) what is the court's standard for technical or specialized knowledge that substitutes for Daubert?; (3) has the Circuit adopted a standard for the admissibility of social science testimony that is different from that for the admissibility of technical or other specialized knowledge?; and (4) how have state courts dealt with the admissibility of non-scientific experts under their state rules of evidence?
1. Basis for distinction. In reaching the conclusion that Daubert does not apply to technical or other specialized knowledge, the courts have relied on different emphases of the language in the Daubert opinion itself as well as the opinion's underlying policy.
For example, the Second Circuit reversed a district court's exclusion based on its application of Daubert factors to the testimony of a geotechnical consultant and an underground construction consultant who were testifying on the feasibility of a construction project. The Second Circuit held that the testimony of these experts did not pose "the kind of junk science problem that Daubert meant to address."(24) Instead, the experts relied upon "the type of methodology and data typically used and accepted in construction-litigation cases."(25) The court did not elaborate on what it meant by "junk science problem" but the context suggests that it meant novel or unaccepted conclusions that are purportedly based in scientific method. The Fourth Circuit adopted a similar approach when it held that the expert testimony of an accountant, concerning baseball salaries and the likelihood that the defendant baseball player would play out his contract, was admissible under Daubert despite the appellant's claim that the testimony did not satisfy Daubert.(26) Such testimony, the Fourth Circuit stated, was not "the type of 'scientific' evidence that must pass Daubert muster."(27) Once again, the court was unclear as to how it conceptualized "scientific." The context suggests that since the accountant was using standard accounting methods and was qualified, his testimony would assist the trier of fact and therefore was admissible under Rule 702. The reasoning was that Daubert implies additional burdens only for testimony that is novel and not based in accepted procedures and methods.
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The Sixth Circuit offers perhaps the most sophisticated, and definitely the most entertaining, rationale for adopting a separate standard for technical or specialized knowledge.(28) Based in part on the language of the Daubert opinion which, as discussed above, leaves open the question of whether Daubert applies to non-scientific experts, the Sixth Circuit also held that knowledge based on scientific expertise is different in kind from technical or specialized knowledge because of the foundation that must be established for introduction of the testimony.(29) In the case of scientific knowledge, the foundation must be based on qualifications, training in the relevant methods, and correct applications of those methods. The proper foundation for technical or specialized knowledge on the other hand is a demonstration that the expert has experience in the subject of his testimony. The court illustrated this conclusion with the example of the engineer and the beekeeper, each proffering testimony on the flight pattern of bumble bees. The engineer to the extent that she will present models and engineering data on flight patterns is proffering scientific testimony; the beekeeper's testimony is technical or other specialized knowledge. A different foundation must be provided before either can be admitted. To add to the confusion, the Sixth Circuit also held that the Daubert factors apply to all expert testimony in order to ensure the reliability of the testimony.(30) Although the court distinguished among types of knowledge for the purposes of laying a proper foundation, it did not do so for the purposes of reliability. The Tenth Circuit, by way of contrast, did not rely on beekeeper analogies to conclude that "application of the Daubert factors is unwarranted in cases where expert testimony is based solely upon experience or training."(31) For such testimony, the district court need only look to the reliability and relevance of the testimony to determine if it is "facially helpful and relevant."(32)
The Eleventh Circuit expressly relied on the Sixth Circuit in ruling that Daubert applied only to scientific knowledge.(33) The court stated that the Supreme Court expressly held that Daubert was to apply only to the "scientific context" and not <-- 1 J. INTELL. PROP. 1, 16 --> to whenever a witness claimed scientific expertise. Furthermore, while the court acknowledged the gatekeeper function of the district court, it also found that the district court's role as gatekeeper was not intended "as a replacement for the adversary system."(34) The court also distinguished United States v. Lee,(35) its precedent which seemingly held that Daubert applied to all expert testimony. At issue in Lee was whether the output of a machine that incorporated scientific techniques to detect cocaine on clothing should be subjected to the Daubert standard. The Eleventh Circuit stated that "Daubert applies not only to testimony about scientific concepts but also to testimony about the actual application of those concepts."(36) The Carmichael court held that while the Lee court concluded that Daubert applied its reliability factors to evidence produced by a machine, it did not imply that Daubert applied to non-scientific experts.(37) This distinction, however, is suspect. The Lee court did expressly state that Daubert applied to the applications of scientific concepts.(38) Furthermore, the Carmichael court defined a scientific expert as "an expert who relies on the application of scientific principles, rather than on skill- or experience-based observations, for the basis of his opinion."(39) The two Eleventh Circuit cases can be reconciled as follows: Daubert applies only to scientific experts and machines that are extensions or agents of the scientific expert by embodying methods or techniques of the experts.
The Ninth Circuit has been the most Hamlet-like in determining whether a distinction need be made between scientific knowledge and technical or other specialized knowledge. In its most recent pronouncement, the court held that Daubert applies only to scientific knowledge.(40) Its reasoning was based in part on the Court's language in Daubert limiting its holding to: scientific knowledge; its own precedent on the issue which looked to the policy concerns of Daubert in limiting "junk science"; and on the language of Rule 702 itself which states that an expert may be qualified by "knowledge, skill, experience, training, or education," which are all factors that are extraneous to concerns about the conformance of the expert's methods with those of <-- 1 J. INTELL. PROP. 1, 17 --> science.(41) Recent dissatisfaction with this conclusion and reasoning has been expressed in dissent by Judge Noonan with regards to the testimony of a child therapist about a syndrome associated with child abuse.(42) In concluding that the testimony should have been excluded under Daubert, Judge Noonan states that "[t]his Circuit has not been clearly consistent in its reference to Daubert," citing contradictory opinions within the Circuit, some within the same year.(43) Judge Noonan would clearly subject the testimony of the therapist to Daubert (and reject it under the case's four factors) because it purports to be novel and scientific.
The judge's dissent illustrates not only the conflict within the Ninth Circuit but also the difficulties with a dualist interpretation of Daubert. The most obvious difficulty is one of distinguishing between scientific knowledge and technical or specialized knowledge. None of the circuits adopting a dualist approach have addressed this question at all. Instead, by reading Daubert strictly in terms of its language and policy, these five Circuits have held that Daubert in some variation applies only to scientific knowledge. Ponder, however, the question raised at the beginning of this Article: is epidemiology scientific knowledge or specialized technical knowledge? How can we tell? This irony in the Daubert opinion, the contradiction between the Court's language about science and the type of knowledge to which it applied the standard, is not addressed by any court let alone those that have adopted the dualist approach.
2. The standard for technical and other specialized knowledge. Dualist courts have largely looked to the language and purpose of Rule 702 to devise standards to apply to the admissibility of technical or other specialized knowledge. According to these courts, Rule 702 requires, in addition to the requirements for the admissibility of non-expert evidence, a finding that the expert on technical or other specialized knowledge is qualified either through training, education, skills, or experience in the subject of the testimony and that the testimony will be helpful to the trier of fact. The standard, in other words, is highly contextualized depending upon both the background of the expert and the particular use to which his testimony will be used. As noted above, the Sixth Circuit has an odd variant of this, maintaining the four Daubert factors for determining the reliability of scientific and technical or other specialized knowledge but requiring different standards for foundation of the two types of knowledge.
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3. The treatment of social science. Further examination of how dualist courts deal with technical or specialized knowledge involves evaluating how these courts specifically dealt with "social science" testimony. A search of the cases for each circuit indicates that none of the five dualist circuits have directly dealt with "social science" testimony. Therefore, an evaluation of how each circuit dealt with psychiatric testimony and economic/accounting testimony was necessary. Of the five dualist circuits, only the Fourth and Tenth Circuits had not dealt directly with the application of Daubert to psychiatric experts. The Tenth Circuit also had not directly addressed the testimony of an economist or accountant. The examination of the treatment of experts from the non-hard sciences by the remaining circuits is telling as to how these circuits view "technical or other specialized knowledge."
The Second Circuit has addressed the admissibility of psychiatric testimony and accounting testimony and subjected each to the helpfulness approach designed for technical or other specialized knowledge. The inquiry in each case was limited to qualifications and ability of the expert testimony to aid the trier of fact.(44) The Fourth Circuit has adopted a similar approach in reviewing the admissibility of an expert accountant's testimony.(45) The Sixth Circuit, which distinguishes between engineers and beekeepers, has considered psychiatric testimony under the "helpfulness standard" that it has fashioned for "technical or other specialized knowledge."(46)
The Ninth Circuit's approach to social science testimony is the most intriguing. On the one hand, the court has subjected the testimony of a survey expert with training in sociology and an economist analyzing market structure to the Daubert factors.(47) On the other hand, it has not subjected a range economist testifying on the value of Hopi land to the Daubert factors. The results appear schizophrenic.(48) They can be <-- 1 J. INTELL. PROP. 1, 19 --> reconciled by considering the court's most recent holding and Judge Noonan's most recent dissent on the Daubert issue.(49) The court has held that the testimony of a product design expert was not subject to the Daubert standard.(50) Judge Noonan has suggested that the Circuit's precedent would require applying Daubert to the testimony of an expert testifying on essentially psychiatric matters. The seeming confusion within the Ninth Circuit can be reconciled by classifying it as Dualist Type Two jurisdiction. The Circuit adopts a dualist approach to the application of Daubert, but the dividing line is between theoretical and applied science. Thus, psychiatry, economics, or sociology will be treated the same as the hard sciences (i.e., subject to the Daubert factors); but technical or applied fields, such as accounting or economic damage calculations, will be subject to the general helpfulness standard.
This resolution is far from satisfactory. For example, the testimony of a survey expert would most logically be classified as applied knowledge, but it was subject to the Daubert factors. The division between theoretical and applied is as elusive as that between scientific and technical or other specialized knowledge. Judging from the Ninth Circuit's decisions, theoretical knowledge is abstract and focuses on questions of methods; applied knowledge involves the application of methods to facts.
The dualist circuit's treatment of social science testimony demonstrates the type of dualism each circuit adopts. Due to lack of cases, it is not possible to exactly categorize the Tenth and Eleventh Circuits. However, the Second, Fourth, and Sixth Circuits are clearly Type One Dualists; the Ninth most likely is a Type Two Dualist.
4. State-Federal Tensions. Several state supreme courts have also ruled on the applicability of Daubert to "technical or other specialized knowledge." Of the states in federal circuits that have adopted the dualist interpretation, a few have adopted a monist interpretation. In addition, since Frye is arguably a monist standard, those state courts that still utilize the Frye standard pose interesting federalist conflicts in the dualist circuits.
West Virginia, Kentucky, Oregon, and New Mexico have directly addressed the issue of the applicability of Daubert to technical or other specialized knowledge and have adopted a monist interpretation. As a result, there is a potential conflict within the respective circuit of each state, namely the Fourth, Sixth, Ninth, and Tenth Circuits. The state court's reasoning is instructive. For example, the West Virginia Supreme Court in adopting Daubert stated that "we believe that Daubert is directed at situations where the scientific or technical basis for the expert testimony cannot be judicially <-- 1 J. INTELL. PROP. 1, 20 --> noticed and a hearing must be held to determine its reliability."(51) The court went on to exclude the testimony of an expert economist on the subject of hedonic damages. The West Virginia court's reasoning seems to be based on the general policy parameters of the Daubert opinion: its insistence on the trial court's gatekeeper role which arguably requires a high standard for the admissibility of all expert knowledge, its overruling of the Frye standard which itself rested on a monistic standard for the review of science, and its goal to reduce all litigation into a free-for-all involving a battle of the experts.
Kentucky and New Mexico are equally instructive in understanding the monistic view. Both states' supreme courts read Daubert as applying to all knowledge, including technical or other specialized.(52) The rationales of each court are not entirely clear but the analysis parallel each other. Both courts refer to the intertwining of the issue of knowledge being scientific with its being reliable, a relationship both courts find militate in adopting a single standard for all knowledge. Both also refer to the principal holding of Daubert that Frye's general acceptance standard was overruled by Rule 702 to suggest that a uniform standard is also required under Daubert. However, neither court determines the issue as neatly and succinctly as the Oregon Supreme Court which found that "it is difficult to set a more definitive boundary between 'scientific' evidence and 'technical or other specialized knowledge.'"(53) Practical impossibility, according to the Oregon court, mandates a single standard.
The difficult question is what exactly that standard is. Although all courts repeat the mantra of the Daubert factors, it is not always clear how they are being applied. Often the application entails nothing more than looking to qualifications of the expert and the general acceptance of the methods. Sometimes the court is concerned with non-falsifiability of the expert's conclusions, especially with regards to psychiatric testimony. What ostensibly is a single standard can easily degenerate into multiple standards, with a common core being a cite to the Daubert opinion. This author addresses this point once again in the context of monist interpretations in the federal circuits.
What is particularly striking is the conflict between the state and federal standards in the dualist jurisdictions. One's prediction might be that non-scientific evidence may more readily enter under a dualist interpretation than under a monist one. <-- 1 J. INTELL. PROP. 1, 21 --> For example, the Hawaii Supreme Court permitted testimony of a domestic relations expert under its dualist interpretation of Daubert, expressly stating that "specialized knowledge" was subject to a lower standard.(54) However, monist states also apply a seemingly lower standard towards technical or other specialized knowledge. West Virginia has excluded expert economic testimony on hedonic damages under its monist interpretation but has admitted battered woman's syndrome testimony. Similarly, Oregon has admitted a wide range of non-scientific testimony under its monist interpretation from testimony about probability of paternity suits(55) to Horizontal Gaze Nygamus tests administered by police officers.(56) New Mexico, in contrast to West Virginia, has admitted economic testimony on hedonic damages under a monist standard while a federal district court in New Mexico has expressly rejected such testimony even under its dualist reading of Daubert. The Second Circuit has also managed to scrutinize non-scientific experts under a dualist standard, having excluded the testimony of an accountant and a psychiatrist. Seemingly, Daubert is such a liberal and relaxed standard for admissibility that any result is possible despite whether a monist or dualist jurisdiction takes on the opinion. This conclusion is further supported by the consideration of monist jurisdictions in the next Section.
Table Two presents information on monist circuits and states within each circuit as well as references to representative and interesting cases.(57) As of this writing, six circuits have expressly adopted a monist interpretation of Daubert, holding that the Daubert factors are to be applied to all categories of knowledge. These six circuits consist of 21 states and the District of Columbia. The District has adopted Daubert as its standard for its own rules of evidence as have 14 of the 21 states; the remaining seven retain Frye. Although Frye itself is a monistic standard for the admissibility of expert testimony, its substantive differences from Daubert suggest potential conflicts between state and federal courts in these seven monistic jurisdictions. Surprisingly, in many instances, Frye does not give a result that much different from that which would be obtained under an application of Daubert. Of the 14 Daubert states, three have directly addressed the question of whether Daubert applies differently to scientific and technical or other specialized knowledge; of these three, one (Louisiana) has adopted a monistic interpretation consistent with its circuit and two (Indiana in the Seventh
<-- 1 J. INTELL. PROP. 1, 22 -->
|
Circuit |
Social Science directly
addressed? |
States within Circuit |
|
1st |
Indirectly, since accountant's testimony was at issue |
Maine (D) (N) |
|
3d |
Indirectly, since accountant's testimony was at issue |
Delaware (D) (N) |
|
5th |
Indirectly, since court in dicta said social science was science |
Louisiana (D) (Monist) |
|
7th |
Yes, court expressly says social science is science |
Illinois (F) (N) |
|
8th |
Indirectly, since court states that applicability to social science is open issue but finds that psychology meets Daubert factors assuming extended to social science |
Nebraska (F) (N) |
|
D.C. |
Indirectly, since court in dicta says Daubert is applied arguendo to economist |
District of Columbia (D) (N) |
II.B. TABLE TWO: MONIST FEDERAL CIRCUITS
(F): Frye; (D): Daubert; (Dualist): state court adopts a dualist interpretation of Daubert; (Monist): state court adopts a monist interpretation; (N): state court has not addressed monism/dualism issue
Circuit and Iowa in the Eighth Circuit) have adopted a dualistic interpretation. One Frye state (Missouri) has addressed the question in dicta and concluded that Daubert <-- 1 J. INTELL. PROP. 1, 23 --> mandates a monist interpretation consistent with its circuit.(58) These data raise the following three questions: (1) what was the court's basis for adopting a monist interpretation when the Supreme Court expressly limited its holding to scientific knowledge?; (2) is Daubert applied to scientific and non-scientific knowledge in a consistent manner even in jurisdictions that are ostensibly monist?; and (3) what are the relevant state-federal conflicts on the issue?
II.B. The Monist Interpretation in Federal and State Courts
1. The Basis for the Monist Interpretation. The overriding explanation for why some circuit courts have adopted a monist interpretation of Daubert is caution.(59) Courts express hesitancy in parsing the language of Rule 702 too closely especially at the risk of the Supreme Court extending Daubert expressly to "technical or other specialized knowledge." The Third Circuit is the most interesting of the monist circuits because it bases its interpretation of Daubert on its own 1985 precedent overruling Frye and adopting a proto-Daubert standard, which was in part the basis for the Supreme Court's opinion in Daubert.(60) In addition to the need for caution, circuit courts also express a need for a uniform standard given the gatekeeper role the Court imposed on district courts in implementing Daubert and the provisions of Rule 702.(61) Dual <-- 1 J. INTELL. PROP. 1, 24 --> standards create the possibility of loopholes and hence limit Daubert's ability to prevent courts from being deluged by experts. In this regard, monist courts are consistent with Daubert's underlying policy if not its language.
2. Is Daubert applied to scientific and non-scientific knowledge in a consistent manner even in jurisdictions that are ostensibly monist? Despite the monist court's concerns about the need for a uniform standard, many have implicitly adopted a double standard in Daubert's application. This double standard is evidenced by how courts have applied the monist Daubert interpretation to fields outside of the hard sciences. The Fifth Circuit, for example, has recently stated that even under Daubert, each field of knowledge needs to be subjected to its own methodological standards.(62) Therefore, if testability or falsification is not the part of the method for the expert's field, then neither should they be part of the standard to assess the scientific validity of the expert's testimony. This approach creates obvious problems with categorizing the Fifth Circuit (is it really a dualist jurisdiction in monist clothing?) and perhaps predictability, but offers a more flexible approach to the admissibility of expert testimony. Other circuits have taken a more hard-lined approach, subjecting all expert testimony to the four Daubert factors of testability, peer review, known error rates, and general acceptance.(63) In these circuits, the application of these factors results in a general test for the methodological correctness underlying the expert's testimony. For example, the Seventh Circuit, in excluding the statistical testimony of an expert sociologist, found that the expert's methods did not meet adequate statistical methodology of sample selection and inclusion of control variables.(64) The First Circuit subjected the testimony of a financial accountant to the standard of his own profession as well, although it cited Daubert's four factors.(65) These cases indicate that even hard-lined circuits actually apply a dual standard similar to that applied by the Fifth Circuit.
<-- 1 J. INTELL. PROP. 1, 25 -->
3. State-Federal Conflicts in Monist Circuits. Louisiana, in adopting a monist interpretation of Daubert, justified its interpretation on the grounds of gatekeeping and statutory interpretation; those grounds are similar to those used by the monist circuits.(66) The two dualist circuits each offered different rationales. Indiana pointed to its own precedent, much of it pre-Daubert, to hold that separate standards were required for scientific and technical or other specialized knowledge.(67) Iowa adopted a literal reading of Daubert and relied on persuasive authority from dualist jurisdictions like the Ninth Circuit for adopting a double standard.(68) Interestingly, Louisiana excluded the testimony of a psychiatrist on Child Sexual Abuse Syndrome on the grounds that such testimony is not falsifiable. The Iowa court, applying its dualist interpretation, admitted the testimony of a psychiatrist on Obsessive Compulsive Disorder. The Indiana court, also using a dualist standard, excluded the testimony of a hair sample analyst. For reasons discussed above, it is difficult to conclude whether the dualist or the monist interpretation is the more permissive standard.
II.C. Legal Schizophrenia in the Land of Babel: Wither Daubert?
The uncertainty over the appropriate standard for technical or specialized knowledge exacerbates the overarching problem of whether the Supreme Court adopted the correct standard to replace Frye. Furthermore, the added confusion over what standard to apply to "non-scientists" illustrates, however, some of the problems created by Daubert. Does Daubert perform better than Frye? The answer will depend upon whether Daubert is applied in a substantively different manner from Frye. This author's belief is that except for the added judicial scrutiny introduced by Daubert, the two standards are practically identical. Daubert invariably will fall back on the same deference that Frye gave to the scientific community at the level of methodology rather than in conclusions. What is perhaps even more surprising is that this is true regardless <-- 1 J. INTELL. PROP. 1, 26 --> of whether courts adopt a dualist or monist reading of Daubert.(69) The Daubert opinion has been compared to Pandora's box.(70) Perhaps a more apt analogy is the opinion was intended to be a dike designed to prevent courts from being flooded by "junk science." By not addressing the problem of technical or other specialized knowledge, the Supreme Court left open a big fissure in this dike for lower courts to fix in a piecemeal fashion.
The remainder of this Article suggests how the problem can be resolved.
III. Understanding and Expanding Daubert's Definition of Science
III.A. Experience and Expertise: Is Social Science a Science Under Daubert?
The Daubert court's opinion illustrates that there are at least two types of knowledge that can be the basis for either lay or expert witnesses. The first is direct sense experience, derived from actual presence at the event in question or from inferences from such events. Therefore, a lay witness can testify that the moon was full on a certain night creating a reasonable inference about luminescence. An expert witness's testimony about the relationship between moon phases and light would also be helpful but arguably cumulative. Knowledge can also be derived through a methodological filter. A potential witness has studied some phenomenon and is distilling conclusions relevant to issues, for example, of causation, mental state, or damages. In this latter case, experience is filtered through a system of knowledge and the relevant testimony pertains to the conclusion or the links between the sense data and the conclusions. The Daubert court concluded that when testimony has been purportedly filtered through scientific methodology, trial court judges should fulfill a gatekeeper function to ensure that the correct filter has in fact been used.
In terms of understanding the application of Daubert to economic and other <-- 1 J. INTELL. PROP. 1, 27 --> social science testimony, the difficult threshold question is: which of these two categories does the testimony fall in? For example, if the testimony is about an actual industry or an actual market, an expert economist may be able to testify based upon her direct observations of the industry or market, observations obtained through financial statements, market statistics, and interviews. However, such testimony arguably has also been taken through a filter. If the economist's experience with the industry has been largely through the collection of statistical data, then the data must have been filtered through some technique in order to generalize principles. If the former characterization is appropriate, arguably Daubert does not apply; if the latter is appropriate, then Daubert should be applied. The correct application of Daubert hinges on the prior categorization of the testimony as either scientific in the sense of knowledge acquired through a specialized filter or experiential factors. The distinction becomes more subtle in contexts such as hedonic damages. Economists arguably have no greater experience in valuing life than the lay person; every individual has a sense of how to value an individual life. In this way, expert testimony about value of life may not even be helpful to the trier of fact under a Rule 402 standard for relevance. On the other hand, economists may be expert at valuation, i.e. aggregating data about prices into a measure of value. If economists can value businesses, existing or to be formed, then economists should be able to develop a methodology about how to aggregate information about an individual person, such as education, occupation, and other characteristics, into a number that would provide a value of an individual person's life. Under this characterization, knowledge about value of life is filtered through specific economic and statistical methodology, which is subject to Daubert analysis. Whether the court applies the correct Daubert analysis is another issue. The question here is, at the threshold, what standard to apply to economic and social science testimony.
The application of Daubert to economic and social science testimony is complicated by the excluded middle in the Daubert court's reading of Rule 702. As the Court states in a footnote, "Rule 702 applies to 'technical or other specialized knowledge.' Our discussion is limited to the scientific context because that is the nature of expertise offered here."(71) Knowledge that is technical or specialized is in the gray area between purely experience based knowledge and scientific knowledge. Filters may be at work in the acquisition of technical or specialized knowledge, but of a different sort than for scientific knowledge. A mechanic will look at an engine in a way that is different from the lay person; similarly, an electrician will process and analyze a circuit differently from the average owner of a radio. Each will differ respectively from how a physicist would view the same data. The Daubert opinion seems to suggest that the Daubert analysis will depend upon whether we characterize the particular expert witness as being technical or scientific.
<-- 1 J. INTELL. PROP. 1, 28 -->
The distinction, if one were to try to articulate it more precisely, is seemingly one between: applied and theoretical knowledge; knowledge based on experience at a higher level of expertise than the lay person and knowledge; and knowledge based on a clearly well-defined methodology. However, here once again, the Court's analysis would take us not only to a gray area but also one that would be circular. Scientific knowledge is to be distinguished from technical knowledge based on the use of the correct methodology; incorrect methodology would foreclose the admissibility of non-scientific technology. Could such testimony not be characterized as technical at the threshold by the party seeking to introduce it and therefore escape Daubert analysis altogether? The excluded middle in Daubert is knowledge not acquired either through a rigorous scientific methodology or lay experience. Lower courts have been divided on the proper approach in ruling on the admissibility of knowledge in the gray area; some have wholeheartedly applied the Daubert standard leading to such results as the exclusion of a tire expert's testimony concerning skidmarks and an auto mechanic's testimony concerning the manufacture of engines because such testimony was not scientific.(72) Other courts have not excluded such testimony for failure to be scientific under Daubert and instead have subjected such testimony to the usual test of reliability, materiality, competence, and relevance.(73)
The difficult issue is whether economics and other social science testimony should simply be recharacterized as "technical or other specialized knowledge" rather than "scientific knowledge" for the purposes of determining admissibility. Such recharacterization would obviate any problems that courts are currently having with the scientific status of economic and social science testimony. There would also be a basis both in the nature of economic and social science testimony and in legal precedent for such re-characterization. Testimony of a statistical disparity based on gender or race is not based on an explicit scientific methodology in the same way that clinical trials of a drug indicate some effect on cancer rates. Instead, the expert, whether trained in sociology or economics, is testifying about what the statistics indicate. The conclusions drawn from analysis of the statistics is technical rather than processed through the filter of a scientific method.
The distinction is memorably drawn, though argued below fallaciously, by the Sixth Circuit in Berry v. City of Detroit between the beekeeper and the aeronautical engineer.(74) If a party in a lawsuit were seeking testimony about the mechanics of how <-- 1 J. INTELL. PROP. 1, 29 --> a bumblebee flies, he could use the testimony of the aeronautical engineer whose training in physics would clarify the principles of bumblebee flight. On the other hand, if a party were seeking testimony about the flight patterns of bumblebees, e.g., where they fly, in what patterns, and in what manner, he would rely on the testimony of the beekeeper whose direct experience observing and studying bumblebees would provide the adequate foundation for such testimony. The Sixth Circuit concludes, in a holding that the Ninth and Tenth Circuits found persuasive, that Daubert applies only to the testimony of the aeronautical engineer and not to that of the beekeeper.(75) The characterization of knowledge as either scientific or technical, or neither of these two, is an issue of foundation. What is the basis for the witness's testimony: specialized training or direct experience? Put another way, what is the filter through which the witness is processing and producing his testimony? As applied to economists and to other social scientists, are they beekeepers or engineers? The answer to these questions will determine the proper gatekeeper role of the judiciary under Daubert.
Having laid out the excluded middle in Daubert and its treatment by lower courts, this author emphasizes that for many reasons, the approach of the Sixth Circuit in Berry and modifications of its essential holding by other circuits is erroneous and potentially damaging to the purposes of Daubert. The Berry court's division of experts into either beekeepers or engineers treats non-scientific experts like lay experts. If a lay expert were to testify on the flight patterns of bumblebees, a proper foundation would have to be laid for his testimony. Would experience watching bees for a hobby qualify as a proper foundation? Would experience being stung on many occasions qualify? Attending picnics? The Berry court recognizes that the title of beekeeper may make a witness an expert on bee flight patterns but the court looks to experience as the main criterion for foundation. If experience is required for laying a foundation, then the expert beekeeper is no better than the lay person who has simply "watched a lot of bees." In effect, the court is taking the language of "technical or other specialized knowledge" out of Rule 702 and applying the specialized rules for expert witnesses to scientific testimony alone.
A kinder reading of Berry would be that there are two classes of experts, scientific and non-scientific. While the heightened scrutiny is required for both classes of experts, the Daubert standards would only apply to the former. This reading would preserve the text of Rule 702 and the distinctions in the Federal Rules of Evidence between lay and expert witnesses (as opposed to lay and scientific experts as the Berry decision would demarcate). However, this reading would be equally unsatisfying for the very reasons articulated above: what is the threshold definition of "science" and "scientific" for the court to apply? If the threshold definition of scientific is one that is based on methodological correctness and if exclusion is based on failure to comport <-- 1 J. INTELL. PROP. 1, 30 --> to methodological correctness, then the decision to characterize certain testimony as scientific rather than technical becomes determinative as to admissibility. Admittedly, the questionable issue here is the levels of generality in the inquiry. For the threshold question, the court must look to see if the source of the testimony is a field which purports to apply a scientific methodology; the question of exclusion is whether the testimony conforms to the scientific methodology used by the field. For example, as applied to the question of the admissibility of the testimony of an aeronautical engineer, the threshold question is whether aeronautical engineering is a science; the admissibility question is whether this specific expert's testimony was derived from the methodology of aeronautical engineering. However, when phrased this way, is Daubert any different from Frye? Has the Daubert standard simply replaced Frye's general acceptance standard as applied to an expert's testimony with a general acceptance standard as applied to the expert's methodology? As applied to economic testimony, especially in the area of antitrust, the answer is seemingly yes. Distinctions between scientific and technical knowledge will only exacerbate the problem.
The Berry court's reading of Rule 702 adds another step to the application of Daubert, namely an inquiry into whether the proffered testimony is scientific or technical. This added step not only confuses the Daubert analysis because it creates the need to make ungrounded distinctions as well as creates the possibility of strategic maneuvering by the parties to the lawsuit in how the testimony is characterized. The distinction creates a class of non-expert experts; witnesses can don titles (such as "beekeeper") but whose testimony will be scrutinized on a basis no different from any lay witnesses. Parties would rather hire the beekeeper than the aeronautical engineer in order to avoid the problem of having to lay a proper foundation of valid scientific methodology for admissibility. Such incentives may be desirable from the perspective of lowering the costs of litigation; presumably beekeepers are cheaper to retain than aeronautical engineers. However, from the perspective of developing law and providing a well-informed basis for legal decisions, the switch to a different caliber of witness would not be desirable and would undercut the goals of keeping junk science out of the courtroom. The return would ostensibly be to the Frye regime which is more permissive of junk scientific testimony. Even if in many cases the aeronautical engineer would be the preferred witness and cannot be rejected by the parties in favor of the beekeeper, the Berry court's distinction would create incentives for re-characterization of witnesses as technical rather than scientific at the threshold. Even if such maneuvering would have a de minimis effect on the costs of litigation, such re-characterization may have an effect on the court's gatekeeper role as parties present witnesses whose testimonies are grounded not in scientific method but in experience and observation.
The ultimate problem with Berry and its progeny, however well grounded they may be in the reading of Daubert, is that they fail to recognize the principal reason for why the Federal Rules treat lay and expert witnesses differently. As the Daubert court <-- 1 J. INTELL. PROP. 1, 31 --> itself suggests in its example of testimony pertaining to phases of the moon, expert testimony is filtered through a method and technique unfamiliar to the lay person while lay testimony arises from ordinary experience, e.g., the filters presumably we all share as homo sapiens of a particular culture and history. The beekeeper, too, has a filter which is different from the lay person who experiences bees through picnics and the occasional sting. The filter is also different from that of the aeronautical engineer. Because the beekeeper's testimony is derived through a filter different from that of ordinary experience, the trial court should scrutinize the filter as the Daubert decision mandates it to do.(76) The problem is whether the court should apply the same standards for the beekeeper's filter as it would apply to the filter of the aeronautical engineer. An even more difficult problem is whether the court can apply different standards for the beekeeper and the engineer without opening the court room door to all experts and reducing the Daubert decision to a reconstitution of Frye. These problems are addressed and resolved in the next Section in the context of economic and social science testimony. The key is not to change the law or break with precedent but to understand science and scientific knowledge in a more methodologically sophisticated way.
III.B. Recognizing Social Science Under Daubert
Neither the Daubert court nor the various amici addressed the issue of the applicability of Daubert's scientific validity standard to social science.(77) At issue in <-- 1 J. INTELL. PROP. 1, 32 --> Daubert, and in the amici briefs submitted, was the narrow question of whether publication was a necessary prerequisite for admissibility under Rule 702. The answer to this narrow question given by the Supreme Court was no. Publication was not necessary for admissibility nor was failure to publish sufficient for exclusion.(78) Instead, the trial court judge should look to the methodological validity underlying the testimony. In order to understand the question of how Daubert should be applied to social science, we should address a more basic question: who won in Daubert? In a narrow technical sense, Merrell Dow won because upon remand, the Ninth Circuit applied the Daubert principles and still held that the expert testimony should be excluded.(79) In a broader sense, however, it is unclear whose view of science really was victorious. The Court did reject the Ninth Circuit's holding that publication was necessary for admissibility, the position adopted by many of the amici for Daubert. On the other hand, of all the amici, the Court cited the brief from the National Academy of Science ("NAS"), writing on behalf of Merrell Dow. The NAS brief urged the Court to defer to the scientific community much like the Ninth Circuit had done. However, the Court adopted the NAS brief only to the extent that it provided a view of scientific method and validity that was generally accepted by the scientific community. The Daubert decision, as delineated in the previous Sections, did not adopt a standard requiring deference to the scientific community by the trial court judge. With respect to the findings of the scientific community, Daubert's standard is essentially de novo whereby the Court reviews the testimony for scientific validity using the scientific community's guideposts, e.g., using factors such as publication and peer review.
The Daubert court's treatment of natural science has strong implications for social science depending upon the level of generality at which the Daubert opinion is read. At one level, the opinion is holding that scientific validity should be gauged by general acceptance within the scientific community. The holding differs from that of Frye only in focus. While Frye required the judge to inquire as to whether a particular <-- 1 J. INTELL. PROP. 1, 33 --> expert testimony was generally accepted, Daubert would have required the judge to ask whether the particular expert utilized generally accepted scientific methods. The distinction is elusive. As applied to social science, the implication would be that the court should look to the accepted methodology of the particular social science to determine admissibility. Daubert, so interpreted and applied, would result in the same problem of how to define the relevant scientific community as Frye.
Since the Daubert court clearly overruled Frye, this result cannot be correct. Therefore, we are left with two choices in applying Daubert to social science testimony. The first choice is to place social science testimony outside the scope of scientific testimony and analyze it as "technical or other scientific testimony." For reasons articulated in the previous Section, this treatment is misguided and untenable under Daubert's language and policy. The second option is to interpret Daubert as providing standards for all "scientific, technical, or specialized knowledge" and apply these standards to social science evidence. The latter is the only tenable position; the difficulty is in determining how Daubert defines "science." The opinion spells out four factors but does not state how these factors are to be aggregated. Therefore, as shown in the discussion of the case law in Section Two, courts have picked and chosen the list, perhaps to reach a particular result, or possibly to derive operational principles from Daubert. The final result is that in making the threshold determination of admissibility, some courts look to credentials, others look to publication and peer review, and still others look for a valid scientific methodology which can sometimes be poorly defined. Although only one court has expressly held that Daubert applies to social science, a synthesis of judicial opinion as to how Daubert applies is remote and elusive.
Preliminary guidance can be found from some amici in the Daubert case, amici not cited in the opinion. The amicus brief of the Carnegie Commission on Science, Technology, and Government (signed by, among others, economist and Nobel laureate Robert Solow) urged rejection of the Ninth Circuit's over reliance on publication and the Frye test in general.(80) The Commission's proposed test involved an inquiry into three questions combined with a threshold inquiry into competence of the expert based on qualifications and relevance of the testimony. The three proposed questions are: (1) is the claim being put forth testable?; (2) has the claim been empirically tested?; and (3) has the testing been carried out according to scientific methodology?(81) If the answer to any of these questions is no, then the Commission concludes that the expert opinion must be rejected. As the Commission succinctly stated in its Brief, "[o]pinions based <-- 1 J. INTELL. PROP. 1, 34 --> on claims that are not capable of being tested should not be admitted into evidence. Claims that are supported by data that cannot be replicated should likewise be rejected."(82)
The Carnegie Commission's proposal is the same as the first part of Daubert's four factors. The emphasis is on falsifiability and actual falsification. By contrast, the amicus of Physicians, Scientists, and Historians of Science proffered a very different set of guidelines for assessing scientific validity.(83) The Historians of Science, like the Carnegie Commission, rejected the Frye test for very similar reasons. As characterized by the Historians of Science, Frye "assumes that science always progresses by the continuous accumulation of objective, irrefutable truths, which are gradually incorporated into consensus reflected in the scientific literature" and that "scientific truths once discovered are complete, universal, immutable, and eternal."(84) The language is identical to the Carnegie Commission's assertion that Frye "assumes much more definiteness in science than actually exists, and that this precision takes the form of widely held beliefs about reality that can be readily found."(85) The Historians of Science, however, do not suggest rule-based inquiry such as the one proffered by the Carnegie Commission. Instead, the amici offer a series of admonishments over the application of Frye to exclude novel claims that may be scientific even if not generally accepted. If the Historians of Science offer any guidance to judges and lawyers, it is that admissibility decisions should not be rigidly based on a formulaic notion of general acceptability. Rather, admissibility decisions should be based on the quality of testimony where "[t]he quality of scientific approach or opinion depends on the strength of its factual premises and on the depth and consistency of its reasoning, not on its appearance in a particular journal or on its popularity among scientists."(86) If the Carnegie Commission's proposal is developed around principles of falsifiability, then the Historians of Science ask the court to look to the factual premises and consistency of reasoning underlying the expert's testimony.
Are these two approaches different? In a qualitative sense, no; both are <-- 1 J. INTELL. PROP. 1, 35 --> empirical in outlook, both focus on the method underlying the opinion rather than the substance of the opinion. However, as applied to social science, the approaches have very distinct implications. The Carnegie Commission's proposal requires that the expert testimony be subject to testability. The classic problem (or critique, depending upon one's perspective) of much social science, and especially economic research, is that it cannot be falsified. For example, the economic assumption that consumers are rational utility maximizers or that firms are profit maximizers is clearly false. Any theory based on such assumptions would logically be false also. If an economic expert were to testify on the negative market effects of price fixing or the benefits of competition in a particular industry, the expert would almost surely be excluded under the Carnegie Commission's test.
This result would be desirable from the more basic question of relevance. If the expert's testimony was too general with regards to either anti-competitive or pro-competitive effects, the testimony would be of questionable relevance as applied to the details of, for example, the health care industry. The Carnegie Commission's test would shift economic experts from those who are purely theoretical to those who have experience with the industry. However, the pivotal question then becomes: of what experience would be sufficient for exclusion? Suppose the expert has studied the health care industry statistically; that is, he has never spoken to actual participants in the industry nor worked in the industry, but has spent a career studying statistics pertinent to the industry. Such an expert would be competent; his testimony would be relevant. However, would it survive a Daubert inquiry, at least as proposed by the Carnegie Commission? The answer should hinge on how the expert analyzed the data, the assumptions of his statistical model, and the statistical techniques used to develop and analyze the model. The Carnegie Commission would have the trial judge focus on falsifiability. If the expert's statistical model was built on assumptions that were not falsifiable, then the entire testimony must be excluded. The falsifiability test is arguably too narrow as applied to social science testimony for the simple reason that social scientists cannot conduct natural experiments and instead must always filter empirical data through a theoretical lens that will often contain hidden assumptions that are untestable.
Because of the problem with the falsification criterion, the amicus of the Historians of Science contain a better approach. To the extent that they developed a test, it would consist of two parts: an inquiry into the factual premises and into the consistency of the expert's reasoning. There is no requirement that the testimony be tested or even testable. Instead, there must be an empirical basis and a structural bases for the testimony, foundations in fact and in logic. The inability to test for failure to construct pure natural experiments, unadulterated by theoretical assumptions, would not hinder the admissibility of social science testimony. The problem is whether there is any basis in law to apply this approach to gauge admissibility. The Daubert court arguably did not adopt it; the opinion is more consistent with the Carnegie <-- 1 J. INTELL. PROP. 1, 36 --> Commission's proposal even though the court clearly did not make falsification a necessary or sufficient condition for admissibility. Although the court in its third enumerated factor did discuss known error rates and technical flaws, this factor is distinct from consistency of the expert's testimony and from factual basis. Furthermore, the spirit of the Daubert opinion suggests a more structured and rigorous analysis of scientific method than that proposed in the Historians of Science amicus. Daubert arguably requires more than simply factual basis and logical consistency for admissibility.
More importantly, adopting the more flexible standard would, according to some, vitiate any tendency Daubert has to limit junk science in the courtroom. To see this argument, consider how the testimony of a social psychologist's testimony would depend upon whether there was a factual and logical foundation for the testimony. If the psychologist's conclusions pertaining to battered woman's syndrome derived from studies of actual battered women and their responses to a history of abuse, there would be a factual basis for the testimony. If the expert's conclusion that a history of abuse leads to a phenomenon of learned helplessness, then there would be a logical consistency to the testimony presuming that such consistency was established through legitimate psychological principles. The more flexible approach would admit the expert. The Daubert four factor approach would arguably exclude the expert. Since battered woman's syndrome has been tested with minimal corroboration in the scientific community and because the error rates for the connection between abuse and helplessness are high, testimony on battered woman's syndrome should be excluded under Daubert.(87) The result seemingly is that the Daubert approach is a better filter for the exclusion of junk science.
All of these arguments are ungrounded. The more flexible approach proffered in the amicus of Historians of Science is completely inconsistent with the Daubert opinion, even though this amicus was not cited. The Daubert court's last factor, "general acceptance," mandates that the judge look to the relevant scientific community for standards to define scientific validity when falsification, peer review, and error rates are not helpful factors.(88) As argued above, because of the problem of falsificationism in social science, the first three Daubert factors are not helpful in determining the admissibility of social science testimony. Therefore, the judge should consider the practices and methodological guidelines of the relevant social science community to develop standards for admissibility. Furthermore, even if the Daubert court had not expressly stated general acceptance as one of the factors to consider, the Court did <-- 1 J. INTELL. PROP. 1, 37 --> adopt a general acceptance standard for the determination of valid scientific methodology. Therefore, it would not be inconsistent with Daubert to consider the approach of the Historians of Science in determining appropriate scientific methodology for the purposes of admissibility.
More troubling may be the assertion that the more flexible approach of looking to factual and logical foundations would result in the increase of junk science in the courtroom. It is not clear that the Daubert opinion is refined enough to exclude junk science. The Court itself betrayed confusion over the admissibility of testimony on phases of the moon affecting human behavior. The Court stated that such testimony would not be admissible under Rule 702, "absent creditable grounds supporting" a connection between the two.(89) The Court was probably simply making the point that there could never be creditable grounds for such testimony. However, the use of the hypothetical leaves open the question whether Daubert would permit such testimony to be admitted. Such testimony would almost definitely be excluded under the more flexible approach of requiring both a factual and a logical foundation for the testimony. Although an expert could in theory establish a factual foundation for the testimony by pointing to such statistical evidence (if it were to exist), that erratic and inexplicable behavior is correlated with the phases of the moon, it would be difficult to establish a logical foundation for such a claim for precisely the reasons raised in my prior discussion. If "moon madness syndrome" exists, how can anyone including the observer of such a syndrome escape its effects? Even if the observer is immune to "moon madness syndrome," how can we be certain about the definition of madness to be applied in diagnosing this syndrome since a correlation between phases of the moon and irrational behavior suggests a logical, rational relationship to begin with? The more flexible approach dispenses with the phases of the moon expert in a way that the Daubert court and the Daubert four factor approach cannot.
As for more realistic experts, such as the social psychologist, the requirements of factual and logical foundation is more apt to exclude battered woman's syndrome, should one advocate such a result. Testimony on battered woman's syndrome can be excluded either by questioning the factual foundation for the syndrome or by attacking the logical foundation. In determining logical foundation, attention can and should be paid to scientific methodology. The consistency of an expert's testimony will almost inevitably have to be determined by reference to scientific practice and standards. The more flexible standard, as articulated in the amicus of the Historians of Science, would be less tolerant of junk science than the Daubert standard.
Even though the Daubert court did not cite the amicus of the Historians of Science, the Court did in effect adopt its more flexible standard. The Daubert four <-- 1 J. INTELL. PROP. 1, 38 --> factor inquiry is essentially a test of factual foundation (as gauged by peer review and error rates) and logical foundation (as gauged by falsificationism and general acceptance). The problem is that in applying the factors to social science testimony, many courts and commentators have ignored the natural science roots of Daubert and the practical problems of applying a natural science standard to the social sciences. As a result, commentators have been draconian on the question of admissibility of social science testimony and courts have been confused and inconsistent in their treatment of social scientists and economists in the courtroom. The requirements of factual and logical foundations are consistent with extending Daubert to social science testimony which almost always cannot strictly be falsified.
Further support for the flexible approach is provided by a recent shift in the standards for approving grants for biomedical research, as recently announced by Dr. Harold Varmus, the Director of the National Institute of Health ("NIH").(90) The new standards were a response to Dr. Keith Yamamoto, a researcher at the University of California, San Francisco, and a chair of the advisory panel for the NIH's Division of Research Grants, who criticized the NIH grant reviewers for being too cautious in funding research (largely as a response to tightened budgets) that were too novel. According to Dr. Yamamoto, grant reviewers have been favoring "grants with the best pedigrees rather than those taking on the biggest challenges."(91) Dr. Varmus's proposed criteria include the following five factors: (1) significance: does this address an important problem?; (2) approach: are the conceptual framework, design, methods, and analyses adequately developed, well integrated, and appropriate to the aims of the project?; (3) innovation: does the project employ novel concepts, approaches or methods?; (4) investigator: is the investigator appropriately trained and well suited to carry out this work?; and (5) environment: does the scientific environment in which the work will be done contribute to the probability of success?(92) The purpose of these guidelines is to force reviewers to consider innovativeness as one criterion to limit and overly cautious review process.
The shift in the NIH guidelines casts light on the Daubert decision by illustrating how accepted scientific methodology is shaped and can be transformed as a response to budgets and changes in values as well as the needs of a particular field of inquiry. Arguably, courts applying Daubert and the Daubert court itself have been overly cautious in defining science. Less charitably, courts have not been well attuned <-- 1 J. INTELL. PROP. 1, 39 --> to the realities of knowledge production by people trained in a natural science or social science background.
III.C. Applications to Remedies
Damages in tort and contract cases is a prominent area in which economics expert testimony has played a critical role.(93) In contrast to the role of economics experts in antitrust, the field of remedies is not formed purely by economics principles. Common law principles and legislative goals more than economic theory drive theories of remedies.(94) Yet in many areas, especially in the determination of future profits or earnings, economic theory and methods determine the amount of damages to be awarded. Economists have played an especially important role in the calculation of hedonic damages, the subject of Section III.C.3. This Section considers the role that economics testimony has played in compensation for lost future profits and earnings in tort cases and breach of contract cases. The Daubert test has been used by many courts to sharpen emerging common law doctrinal changes to damages. Furthermore, courts have been more consistent in applying Daubert as a test for scientific validity in the area of damages as opposed to repackaging the Frye test as is observed in the antitrust cases. Because of the treatment of Daubert, the cases involving future profits and earnings more clearly allow this author to explore how courts have treated economics qua science.
Many remedies involve loss of future benefits that are inherently incapable of being known. Contract breach is compensated by the award of expectation damages designed to place the party in a position he would have been in if the contract had been performed. What this position consists of is uncertain in many cases and is limited by the common law doctrines of foreseeability and non-speculativeness. Similarly in tort cases, compensation is often awarded for loss of earnings in an attempt to make the victim whole in an economic and financial sense. Once again uncertainty can serve as a bar to recovery. The combination can at least provide a basis for arguing in favor of or against some specific level of damages. Because of the strong role that statistical and <-- 1 J. INTELL. PROP. 1, 40 --> economic testimony plays in the damage area, it is inevitable that courts have been led to consider the implications of Daubert for such testimony. The relevant cases divide into those concerning loss in profits and those concerning loss in earnings. The standards in these two cases overlap, but the distinctions highlight the Court's attitude toward science.
III.C.1. Future Lost Profits in Intellectual Property and Contract
In general, courts have disallowed recovery for future lost profits in breach of contract cases. The rationale is that such damages are too speculative to be recoverable. In the 1970's, several courts diverged from this common law principle upon a showing that there was a reasonable basis on which to base the determination of future lost profits with reasonable certainty. Often the basis for the determination was a statistical study or testimony by individuals within the industry who could attest to the profitability of a particular enterprise or business.(95) Such testimony was not subject to Rule 702 analysis, or the equivalent under state law. Instead, the standard for admissibility was one of relevance and probity balanced against possible prejudicial effects. After the Daubert decision, the four prong test for scientific validity has served as a more rigorous basis for admitting such testimony, particularly with respect to expert economists and financial analysts who have played a greater role in testifying about future profitability.
Typical of the pre-Daubert cases is Singer where a United States district court of New York admitted a study projecting future profits undertaken at the time the contract was entered into.(96) The contract was a patent license and the study, prepared by the licensor, demonstrated to the licensee the potential benefits of the patents and expected profits from the use intended by the licensee. Upon breach by the licensor, the issue arose as to how to measure the future profits from the patent with enough certainty to circumvent the problem of speculativeness. The study which was prepared by the licensor filled the gap and was introduced as evidence by the licensee for damages. The result should not bee too surprising or disturbing. After all, the study would be a good indicator for the licensee's expectations upon entering into the license, and while not conclusive, is clearly relevant to the amount of future profits. In Harsha v. State Savings Bank, the Iowa court resolved the uncertainty by admitting the <-- 1 J. INTELL. PROP. 1, 41 --> testimony of a businessman already in an established and similar business.(97) In Lee v. Joseph Seagram & Sons, Inc., the Second Circuit allowed the testimony of a certified public accountant who testimony was comprehensive and involved a reasonable study of the financial status and profitability of a business.(98) By way of contrast, in Kenford Co. v. County of Erie, a New York state court disallowed the expert's projections of future profits from a proposed stadium, the contract for which was reneged by the state.(99) Since there were no similar stadiums and there was no basis for the projections, the damages were held to be too speculative to be recoverable.(100)
The pre-Daubert standard, as it existed in the scattered cases that diverged from the common law rule pertaining to future lost profits, is a highly fact specific inquiry that looked at the type of business and type of testimony.