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by Miriam A. Cherry and Paul Decker - Harvard Law School '99
Judicial Notice of Previous Decisions
Following Precedent: The Daubert
The trial court opinion in Daubert, written by Judge Earl Gilliam, uses precedent extensively to support its conclusion that the plaintiff's experts should be excluded and summary judgment for the defendants should be granted.(5) Not only did the opinion refer to the general consensus of other courts, but in one paragraph the opinion string-cites opinions from the First Circuit, the Sixth Circuit, trial courts in New Jersey and Florida, and the consolidated litigation in Ohio to provide support for its admissibility ruling.(6) It also substantially relies on Brock v. Merrell Dow Pharmaceuticals,(7) quoting a paragraph on the insufficiency of the plaintiff's evidence.(8) While the opinion does note a D.C. Circuit opinion to support the plaintiff's position on admitting the experts,(9) the court dismissed it as "definitely in the minority camp."(10)
When the case was appealed to the Ninth Circuit,(11) Judge Kozinski echoed some of the precedential reasoning from the lower court opinion. At the start, the opinion notes that Bendectin "is not a new question in the federal courts[;] ... four of our sister circuits have considered whether plaintiffs could establish such responsibility in the absence of critically analyzed epidemiological studies establishing a connection between the use of the drug and the birth defects."(12) It also uses the fact that "Richardson(13) and Lynch(14) held that expert testimony that Bendectin caused birth defects, based solely on animal and chemical tests and reanalysis of epidemiological studies, was inadmissible" as support for its own conclusion.(15)
On remand, the Ninth Circuit focused on the individuals the plaintiff offered as experts and discredited them by reference to earlier opinions.(16) For example, the Court states that "Dr. Palmer offers no tested or testable theory to explain how... he was able to eliminate all other potential causes of birth defects[;] ... we therefore agree with the Sixth Circuit's observation(17) that '...no understandable scientific basis is stated.'"(18) The opinion ends with another string-cite, this time in a footnote, to similar decisions in other jurisdictions.(19)
Joseph Sander's thorough statistical analysis of the opinions in the Bendectin litigation concludes that the precedential reasoning apparent in these cases is quite typical of Bendectin cases in general.(20) When these cases were first brought, judges were more likely to use procedural devices to "streamline" the litigation process, but after a number of cases were tried, the courts were more likely to use procedure to "dispose of cases on their merits."(21)
Post-Daubert Cases Which
A final post-Daubert example of precedential reasoning can be found in Rutigliano v. Valley Business Forms.(26) The court in that case excluded the plaintiff's expert testimony. The court supported its exclusion criteria by referencing other decisions that used similar grounds. For excluding data "reanalysis," the Court cites an earlier case from the Third Circuit, Wade-Greaux v. Whitehall Laboratories.(27) For the need to "eliminate alternative explanations for the plaintiff's illness,"(28) the earlier decision in Diaz v. Johnson Matthey(29) was cited. As these post-Daubert cases show, some courts do take other cases into account when making their own admissibility holdings.
Post-Daubert Cases: The
Courts that "Go Their Own Way"
In both Becker v. National Health Products(30) and Benedi v. McNeil(31), precedential value was not given to the decisions of earlier courts. While the specific claims were different, the plaintiffs relied on differential clinical diagnosis to establish general causation in both. Numerous courts have held that clinical opinions used solely to prove general causation are inadmissible,(32) but the courts in Becker and Benedi allowed the experts to testify. Neither opinion mentions these countervailing earlier decisions.
Only a few courts that have decided differently from post-Daubert precedents have cited those cases to distinguish their decision. In Hall v. Baxter Healthcare Corp., an expert who had been ruled admissible in Hopkins v. Dow Corning(33) was excluded. The court differentiated Hopkins by pointing out that its trial occurred before Daubert, and that other evidence supporting general causation was present that had been barred in Hall.(34) While these distinctions may not be convincing, Hall does make an effort to reconcile the cases.
Similarly, in In re Orthopedic Bone(35), the Court decided to admit expert testimony which was partially based on reanalysis of studies which had reached opposite conclusions. While the court cites the Wade-Greaux and Diaz opinions, it states that because this particular expert "brings his expertise in orthopedic bioengineering to bear" on the literature, his testimony should be admitted.(36) Thus, although some courts have taken the decisions of other courts into account in admissibility rulings, others would rather not do so. Part of the split over this subject may be due to the new admissibility test articulated in Daubert, as courts may be uncertain about which precedents survive that decision.
Daubert's Impact on Established
Criminal Law Precedents
Evidence of hair fiber analysis, for example, has been accepted since the mid-1970s. The leading case, U.S. v. Brady, concluded that "the evidence had sufficient probative value to be admissible...[ t]he lack of certainty went to the weight to be assigned to the testimony of the expert, not its admissibility."(38) Although debate continued, because some judges felt that the lack of precision of hair evidence led to unjust verdicts(39) and the few available scientific studies indicated that some problems existed,(40) hair evidence has been routinely admitted. However, after Daubert, two courts have decided that the judicial gatekeeping function should be used to evaluate its admissibility, and neither believed that hair analysis was admissible without more scientific evidence of its accuracy and reliability(41). The Williamson court noted that it "has been unsuccessful in its attempts to locate any indication that expert hair testimony meets any of the requirements of Daubert."(42)
While Daubert has been interpreted as mandating the exclusion of certain types of criminal evidence without more study, it also has been interpreted as mandating the inclusion of other types of evidence. For example, the Third Circuit in U.S. v. Velasquez(43) concluded that, despite judicial notice by the trial court of the reliability of handwriting analysis, testimony offered by a critic of that field should have been permitted. The Court concluded that, where the weight of an accepted type of evidence was at issue, a critical expert satisfying the Daubert criteria could not be excluded from testifying about its shortcomings.(44)
Federal courts have been divided on this issue. The First Circuit(45) and Ninth Circuit(46) have rejected such evidence in post-Daubert decisions but allowed the possibility that it might be admissible in the right circumstances to remain open. Citing those circumstances, a U.S. district court in the First Circuit recently admitted eyewitness-testimony impeachment evidence in U.S. v. Jordan.(47) Determinations about eyewitness evidence thus may have to be made on a case-by-case basis by judges. As the Daubert majority noted, "Scientific conclusions are subject to perpetual revision."(48)
Hardy v. Johns Manville Sales Corp., 681 F.2d 334 at 347 (5th Cir.
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