Procedural Issues Surrounding Judicial Gatekeeping
by Daniel S. Fridman and J. Scott Janoe - Harvard Law School '99
In Daubert v. Merrell Dow, the Supreme
Court suggested that judges confronted with a challenge to scientific testimony
at trial should undertake "a preliminary assessment of whether the reasoning
or methodology underlying the testimony is scientifically valid and of
whether that reasoning or methodology properly can be applied to the facts
The Court, however, failed to enumerate precisely how trial courts were
to accomplish this goal. Left only with the Court's broad discussion of
the Federal Rules of Evidence in Daubert, jurists have attempted
to devise a procedural framework within which to make this assessment.
This framework includes: Rule 702's admissibility tests, Rule 703's allowance
of otherwise inadmissible facts or data, Rule 403's balancing of probative
value against possible prejudice or confusion, Rule 706's standards for
the appointment of experts to assist the judge, and especially Rule 104(a)'s
provisions establishing that such assessments be preliminary in nature.(2)
Left with such vague procedural guidelines,
courts have developed a variety of ways in which to conduct the admissibility
analysis mandated by Daubert:
The Daubert issue has been raised in motions in limine,
motions to strike, and motions for summary judgment. The issue has been
raised by a request for a pretrial Rule 104(a) hearing. It has been raised
by objection during trial. If the jury is to be kept from hearing the expert's
testimony, the objecting party's last chance is an objection during trial,
perhaps coupled with a request to interrupt the direct examination and
conduct a voir dire examination of the witness to establish that the witness
is unqualified or that either the theory or methodology is unreliable or
Ultimately no consensus has developed as to which methods best meet the
gatekeeping requirements of Daubert.
Who Should Initiate the Admissibility
Inquiry, the Parties or the Court?
Most courts have required that the party seeking
to exclude particular expert testimony must initiate such procedures by
motion. Courts have cited conservation of judicial resources as
the primary benefit of requiring the parties to initiate Daubert
In addition, such a requirement balances the liberal thrust of the Rules
of Evidence and the restrictive gatekeeper function of Daubert by
ensuring that scientific evidence retains the presumption of admissibility
until brought to task by opposing counsel.(5)
A minority of courts have interpreted Daubert
to require that they evaluate proffered testimony sua sponte. Specifically,
the First Circuit ruled that "even in the absence of a motion or objection
by a party, Daubert requires trial courts to conduct a preliminary
assessment of the reliability of expert testimony."(6)
More recently, Judge Robert Maloney of the Northern District of Texas unilaterally
threw out the testimony of a plaintiff's damages expert because he considered
the testimony "speculative at best."(7)
Judge Maloney went on to say that he doubted the "testimony would have
survived a Daubert challenge had one been made."(8)
The desirability and legitimacy of such a judicial activist regime
is a matter of considerable contention.
Proponents of sua sponte review would
argue that it affords judges a more activist role in gatekeeping and
is thereby in the true spirit of Daubert. If the Court's intent
in Daubert was to keep unreliable science out of the courtroom then
the judge should be within his or her discretion to employ whatever procedural
means necessary to attain this end. Accordingly, Daubert questions
could be treated as privileged questions similar to issues of jurisdiction
that are often ruled on sua sponte. Just as judges perform an activist
gatekeeping role in bringing up jurisdictional issues to dispose
of improperly brought cases, so too could they actively dismiss evidence
lacking scientific validity. A move such as this could save the court's
resources and prevent "circus trials" where bad evidence is put before
juries because of opposing counsel failure to question its validity by
On the other hand, sua sponte review
might encourage parties to forego Daubert inquiries altogether in
the hope that the trial judge will take it upon him/herself to inquire
into the admissibility of proffered evidence. As a result, courts might
find themselves with less information to judge the validity of particular
scientific testimony, since they will not have the documentation or testimony
that normally accompanies parties' various motions to exclude evidence.
Courts would then be required either to elicit this information from the
parties or conduct their own investigations perhaps using court-appointed
experts or specially trained magistrates.
Should the Determination of Admissibility
Occur Before or During Trial?
Those who favor pretrial determination of
admissibility argue that an early evaluation of expert testimony serves
to introduce the judge to the vocabulary of the science at issue and thereby
ensure his or her familiarity with the evidence. In addition, a timely
motion for summary judgement could be granted or a settlement reached that
could save both plaintiffs and defendants from potentially needless litigation
expenses if critical evidence is excluded as a result of a pretrial Daubert
inquiry. Finally, having admissibility issues decided before a jury is
seated could save both the jury's and the court's time by preempting the
submission of time-consuming, inadmissible expert testimony.(9)
In bench trials, however, the advantages of
an early determination no longer seem to apply. Absent a jury there is
no significant difference between an admissibility determination made at
a pretrial hearing and one made during the trial. Since the judge will
have to examine the evidence as presented in order to make a finding of
fact, he will by necessity become familiar with the evidence of the case.
The addition of another procedural layer would almost certainly prolong
the trial. One could imagine a judge ruling in favor of admissibility in
a pretrial motion and then ruling to dismiss the same evidence at trial
after the discovery process and further testimony have demonstrated that
the evidence is indeed inadmissible. In such instances the initial Daubert
inquiry would be a premature expenditure of judicial resources. Judicial
economy is best served by conducting admissibility determinations as these
determinations are brought to the judge's attention during a bench trial.(10)
At the same time, the judge could structure the inquiry such that crucial
testimony is examined early in the process. This could ensure that if a
party falls short of meeting its evidentiary burden on a key issue then
the case could be resolved quickly by summary judgment or a directed verdict.
What is the Burden of Proof for
Admissibility and Who Should Bear it?
The Federal Rules of Evidence mandate an approach
for scientific evidence that is similar to the business record or public
record hearsay exceptions:
The Court's analysis in Daubert suggests that scientific
expert testimony requires the same treatment--the evidence should be presumed
to be admissible until the opponent discharges its burden to show the contrary.
There is one important difference. Unlike the hearsay exceptions which
place the burden of persuasion on the opponent of the evidence with regard
to lack of trustworthiness, Rule 104(a) requires the burden of persuasion
to remain with the profferer. Accordingly, the defendant only has to shoulder
the burden of coming forward with evidence showing that the plaintiff's
expert proof is inadmissible. Plaintiff bears the burden of showing by
a preponderance of the evidence that the expert's opinion is admissible.(11)
This preponderance of the evidence standard applies even in cases where
the ultimate burden of proof is greater (as in criminal cases), and in
cases where the burden is lower (as in FELA cases).(12)
Are Court-Appointed Experts Formal
Witnesses Or Informal Technical Advisors?
The Daubert decision suggested that
a judge could utilize an expert to assist her in the gatekeeping task of
evaluating the complicated scientific methodologies of each party's experts.
These court-appointed experts take two basic forms: a formal expert witness
or an informal technical advisor. To understand the differences between
them, we must first determine which of two main sources of authority the
judge can use to appoint the expert. Rule 706 of the Federal Rules of Evidence
outlines the full set of formal procedures for using a court-appointed
expert witness. The rules require that the expert be notified of his duties
in writing, advise the parties of any findings, can be deposed by the parties,
and may be called to testify or be cross-examined.(13)
Under this regime, the expert acts like a formal witness.(14)
On the other hand, the court can also rely on its "inherent authority"
established by the common law to appoint a "technical advisor."(15)
The role of a technical advisor to the court is less like a witness that
makes official findings and more like a private counselor that makes recommendations
to the judge. There is also the potential for technical advisors to make
secret reports to the judges that will not be released for the parties
One final question is whether the Daubert
decision overruled United States v. Reilly, such that all experts
must now be appointed according to Rule 706.(16)
Because the Court in Daubert wanted to "reassure judges that they
have effective tools to accomplish their difficult gatekeeping task," it
is unlikely that the Court wanted to impose such a constraint to force
strict adherence to the confines of Rule 706.(17)
It is still true, however, that Rule 706 could be used as a guidepost to
improve the function of technical advisors.
Although there are no formal rules constraining
the duties of technical advisors, two sound recommendations may improve
the use of experts retained under the inherent authority of the Court.
A. Appoint Technical Advisors Selected by
Technical advisors can increase the confidence
both parties have in the process. As described below, this device may reduce
bias and can be accomplished by the judge having the parties submit lists
of acceptable candidates and then working through the lists with the parties
to select a compromise expert.(18)
B. Allow the Parties to Help Define the
Technical Advisor's Duties
As in Rule 706, this procedure forces the
parties to set forth the precise issues upon which they disagree. It will
reduce the risk of the advisor "usurping the judge's decision making authority,"
and it helps set appropriate limits on the advisor's role.(19)
These steps will make the process more legitimate by giving the parties
a greater role and reducing the possibility for secret reports and meetings
with the judge.
How to Find an Expert
While Daubert suggests that judges
can facilitate their gatekeeping duties by relying on experts to assess
scientific methods, judges still face the potentially time consuming task
of finding suitable experts. One of the main problems in this selection
process is ensuring that the expert has no hidden agenda or ideology that
could bias her assessment of the evidence. Judges also encounter the problem
of not knowing where to find an expert who is both familiar with the topic
at hand and willing to serve the court.(20)
The approaches discussed below attempt to address these problems.
A. Use Pre-Existing Personal or Professional
Contacts to Find an Expert
This method has the advantage of lowering
judicial information costs associated with background assessments of an
expert's qualifications and neutrality. There are also some possible deficiencies
in using this approach. If the judge limits herself to contacts obtained
from prior practice or casework, the range of opinions may be so narrow
that the process would be inherently biased. The parties themselves may
also perceive this process as biased even if the expert is suitable.(21)
B. Contact Nearby Institutions to Aid Search
for Suitable Experts
For example, a judge could call local
medical schools and hospitals to find medical expertise. While it may be
a cumbersome method to use, it may work better than using informal contacts.(22)
C. Enlist the Assistance of Parties
This method seems to be the most equitable
to the parties and to the preservation of the ideals of the adversary system.
Many published cases "suggest that a court direct the parties to seek agreement
on an appointment and exercise its discretion only if the parties fail
Both sides can submit a list of acceptable experts, and in many cases,
the same people may appear on both lists. In the event that there are no
matches, judges can still work from the lists to find a compromise candidate.
There are some final considerations about selecting
experts. It is useful for the judge to determine from the very start of
litigation whether experts will be necessary so he will have the time necessary
for careful evaluation of potential experts.(24)
Also, the suggestion to use an expert usually comes from the judge herself
and not from the parties; in such cases the judge has wide discretion in
timing and powers to select the expert.(25)
Who Will Pay the Experts?
Payment of technical advisors and court-appointed
experts seems to be one of the more serious issues which judges face. This
is largely because Rule 706 and Daubert itself are silent on the
precise method to use to allocate costs and compensate the experts. Because
of this uncertainty and potential for disputes, many judges may feel reluctant
to employ the services of experts. There are four general schemes outlined
below that may guide judges in deciding how to compensate experts.(26)
A. Compensation from Public Funds
In certain cases such as land condemnation
cases and criminal cases, Rule 706 and acts such as the Criminal Justice
Act authorize the payment of experts from public funds.(27)
B. Payment by Parties
Under Rule 706(b), the court has full discretion
to determine how the costs will be apportioned. It would probably be best
to compensate the expert when the services are rendered instead of waiting
until the end of litigation. Therefore, the party most able to pay could
be asked to pre-pay the entire fee with the final award considerations
taking this pre-payment into account. Most judges require the parties to
split the expert's fee, with the prevailing party being reimbursed after
If the expert is going to be used for an extended period of time, the parties
may be compelled to make periodic payments. Ultimately, these are merely
suggestions, and the judge can allocate the costs as fairness and common
C. Payment When One Party is Indigent.
When it is impossible for both parties to
the share the cost, judges have been hesitant to use experts. There are
some precedents, however, where judges have been willing to impose these
expenses on the non-indigent party when the other party's claim has merit.
For example, in a case where a family claimed to be exposed to toxic substances,
the judge wanted an expert to evaluate the defendant's questionable expert
testimony and possible disputes were avoided when the defendant agreed
to pay for the court's expert.(30)
D. Technical Advisors
The main problem with getting the parties
to pay for technical advisors is that these advisors can confer in private
with the judge and are not expected to give testimony. In a few cases the
Administrative Office of the U.S. Courts has been willing to pay for these
services. They will, however, generally refuse to pay when the expert could
have been appointed according to Rule 706 of the Federal Rules of Evidence
or Rule 53 of the Federal Rules of Civil Procedure.(31)
Should Gatekeeping Questions
Be Removed From The Trial Courts And Delegated To Special Daubert
Judges Or Magistrates Who Have Scientific Training?
The Supreme Court in Daubert expressed
its confidence that judges possess the capacity to undertake the review
of expert scientific testimony. It also indicated that they could use neutral
experts such as scientists to help them perform their task. The "suggestion
that judges rely on the
aid of scientists when screening scientific evidence
conflicts with its [Supreme Court] mandate that judges make their own reliability
Additionally, as technology continues to progress, these hearings will
no doubt increasingly focus on scientific methods and issues of heightened
complexity. Future hearings may take too much of the court's time and resources
and the complexity of these hearings may lead to widely divergent rulings
in the same jurisdiction.
One remedy to this problem would be to establish
a class of Daubert judges whose sole responsibility would be to
assess scientific evidence in accordance with the standards set by the
decision. These judges would already have experience and training in science,
and through their handling of a large volume of Daubert hearings
over time, they would develop a better feel for the proper bounds of judicial
gatekeeping. This would not only be more efficient, but it would lower
the costs of Daubert hearings and produce more consistent decisions.
Assessing the biases of expert witnesses would also be unnecessary because
judges are by definition neutral and disinterested. Opposing parties may
also be more willing to accept the decision of a scientist-judge rather
than the recommendations of a court-appointed expert, whose opinion a lay
judge may often rubber-stamp rather than scrutinize.
Margaret G. Farrell envisions the use of "special
masters" with scientific training in the evaluation of expert scientific
They can be appointed either through "legislation providing for the appointment
of magistrates as masters" or through Rule 53 of the Federal Rules of Civil
Rule 53(b) authorizes the appointment of a special master in jury cases
when the issues are complicated and in non-jury cases when an exceptional
circumstance requires it. Judicial review of a special master's decision
would have to come from the writ of mandamus. Additionally, as the
system is currently structured these masters do not have to be full-time
jurists. They can be law professors or other people with expertise in a
relevant area. Perhaps the best approach to this innovative proposal would
be to have the legislature formalize the position, at once legitimizing
it and placing greater controls upon it.
On the downside, this approach seems to "pass
the buck" to these specialized judges when the Supreme Court in Daubert
believed that all trial judges are capable of fulfilling the gatekeeping
task. Additionally, these special masters raise the specter of an elite
class of judges largely impervious to judicial review because of the complexity
and specialization of their training. In this case, unforeseeable biases
may sneak into the system and would be hard to detect. The use of Daubert
judges or special masters may merit additional consideration and possibly
use in exceedingly complex cases, but for the time being it seems prudent
to have our trial judges remain in their role as gatekeepers.
v. Merrell Dow Pharmaceuticals, 113 S. Ct. 2786, 2796 (1993).
Lee Loevinger, Commentary on "Evidentiary Framework," 36 Jurimetrics
J. 149, 152-55 (1996).
Michael Fenner, The Daubert Handbook: The Case, Its Essential
Dilemma, and Its Progeny, 29 Creighton L. Rev. 939, 984 (1996).
A. Berger, Procedural Paradigms for Applying the Daubert Test, 78
Minn. L. Rev. 1345 (1994), reprinted in ALI-ABA Course of Study:
Civil Practice and Litigation Techniques in the Federal Courts, C947
ALI-ABA 1, 25 (1994).
P. Groves & Reagan W. Simpson, Recent Developments in Civil Evidence
and Procedure, 31 Tort & Ins. L.J. 169, 174 (1996) (citing Hoult
v. Hoult, 57 F.3d 1 (1st Cir. 1995)).
Stratton Shartel, Daubert Burns Both Sides in Sun Tan Litigation,
10 No. 9 Inside Litig. 1, 1 (1996) (citing Supre Inc. v. California Suncare
Inc., No. 394 CV 0503-T, (N.D. Tex, 1996)).
Fenner, supra note 3, at 957.
Case v. United School District No. 233, 895 F.Supp. 1463, 1472 (D.
Berger, supra note 4, at 23.
See Fenner, supra note 3, at 1020.
Fed. R. Evid. 706.
See In re Breast Implant Cases, 942 F.Supp. 958 (S.D.N.Y.
1996) (where the court mentions Judge Sam Pointer, Jr.'s creation of a
national committee of experts appointed under Rule 706 to help the breast
Ex parte Peterson, 253 U.S. 300 (1920) (where the Supreme Court
upheld the inherent powers of a trial judge who had appointed an expert
auditor to investigate facts, interview the parties, hold hearings, and
submit a report to the court containing the auditor's own opinions); see
also United States v. Reilly, 863 F.2d at 149 (1st Cir. 1988) (holding
that the enactment of the Federal Rules of Evidence which contains Rule
706 did not displace the inherent authority of a court to appoint technical
The Court's reference to Rule 706 is as follows: "Throughout, a judge
assessing a proffer of expert scientific testimony . . . should also be
mindful of other applicable rules . . . Rule 706 allows the court at its
discretion to procure the assistance of an expert of its own choosing."
Daubert, 509 U.S. at 955.
Improving Judicial Gatekeeping: Technical Advisors and Scientific
Evidence, 110 Harv. L. Rev. 941, 952 (1997).
Id. at 954.
Id. at 956-57.
Joe S. Cecil & Thomas E. Willging, Accepting Daubert's
Invitation: Defining a Role for Court-Appointed Experts in Assessing Scientific
Validity, 43 Emory L. J. 995, 1022 (1994).
Id. at 1023.
Id. at 1024.
Id. citing Superior Beverage Co., No. 83 C 512, 1987 WL 9901
(N.D. Ill. Jan. 30, 1987), United States v. Michigan, 680 F.Supp. 928,
957 (W.D. Mich. 1987).
Id. at 1020.
Id. at 1021.
Id. at 1046.
Id. at 1047.
See Hall v. Baxter Healthcare Corp., No. 92-182-JO, 1996 WL
730693, at *2 & *76 n.9 (D.Or. Dec. 18, 1996).
Cecil & Willinging, supra, note 18 at 1048-51.
Id. at 1052-53.
See Reilly v. United States, 682 F.Supp. 150 (D.R.I), aff'd
in part, 863 F.2d 149 (1st Cir. 1988) (where the district
judge petitioned the Director of the Administrative Office for permission
to appoint and pay a technical advisor.) This request was granted, and
it seems that although it is still an unusual request, it may become more
common as courts use experts for personal technical assistance and not
509 US at 946.
Margaret G. Farrell, Coping with Scientific Evidence: The Use of
Special Masters, 43 Emory L. J. 927 (1994).
Id. at 944-45.