OBJECTION: HEARSAY WHY HEARSAY-LIKE THINKING IS A FLAWED PROXY FOR SCIENTIFIC VALIDITY IN THE DAUBERT GATEKEEPER STANDARD

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1 OBJECTION: HEARSAY WHY HEARSAY-LIKE THINKING IS A FLAWED PROXY FOR SCIENTIFIC VALIDITY IN THE DAUBERT GATEKEEPER STANDARD JON Y. IKEGAMI * INTRODUCTION In the face of mounting criticism and disagreement among the circuits, 1 the Supreme Court in 1993 decided Daubert v. Merrell Dow Pharmaceuticals, Inc., 2 which replaced the previously-dominant general acceptance test as the sole method of determining the admissibility of scientific evidence. 3 The general acceptance standard was originally set forth in Frye v. United States 4 by the District of Columbia Circuit in For almost seventy years the standard served as the predominant means of judging science in the courtroom. In its own language, Frye stated that for expert scientific testimony to be admissible, it must be based on scientific principles that are sufficiently established to have gained general acceptance in the particular field to which they belong. 5 The Court threw out this test in Daubert, stating that the old general acceptance test outlined in Frye had been superseded by the adoption of the * Class of 2000, University of Southern California Law School; M.S.M.E., 1994, Stanford University; B.S.M.E., 1992, University of Washington. I would like to thank Professor Lee Campbell for her guidance and advice. I would also like to thank my wife Jenny for all her love and support. 1. See, e.g., Ruth Saunders, Note, The Circuit Courts Application of Daubert v. Merrell Dow Pharmaceuticals, Inc., 46 DRAKE L. REV. 407, (1997) (exposing merely a few of the numerous grounds upon which the general acceptance test has been criticized) U.S. 579 (1993). 3. See id. at F (D.C. Cir. 1923). 5. Id. at

2 706 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 73:705 Federal Rules of Evidence. 6 Specifically, the Court found that a rigid general acceptance requirement would be at odds with the liberal thrust of the Federal Rules and their general approach of relaxing the traditional barriers to opinion testimony. 7 The Daubert case began with two plaintiffs, Jason Daubert and Eric Schuller, who filed suit against Merrell Dow Pharmaceuticals claiming that Bendectin, a drug the company once manufactured, caused their birth defects. 8 Using the Frye test, however, the Ninth Circuit excluded plaintiffs causation evidence, which took the form of expert scientific testimony, stating that the testimony consisted of theories not generally accepted within the scientific community. 9 The Supreme Court granted certiorari to resolve a split among the circuits regarding the proper standard for the admission of scientific evidence. 10 The late Justice Blackmun, writing for the majority, proceeded to outline a new two-pronged test that would supersede Frye. When faced with expert scientific evidence, judges, he said, must take on a screening or gatekeeping role, 11 making sure that the evidence is not only relevant, but reliable. 12 Hence, the first prong became that of relevance of the scientific evidence, and the second prong became that of reliability. This Note deals with the second prong of Justice Blackmun s new test: reliability. It is significant that in outlining the Daubert test, Blackmun did not simply make a naked assertion that admissible scientific evidence must be reliable. In fact, he went much farther than that, actually establishing a new standard of evidentiary reliability, one specific to scientific evidence. In particular, this reliability standard is intended to be separate and distinct from other, more traditional methods of assessing evidentiary reliability, such as those found in hearsay doctrines: In a case involving scientific evidence, evidentiary reliability will be based upon scientific validity. 13 This is in stark contrast to the traditional reliability standards for hearsay evidence, which focus not on scientific validity but on other 6. See Daubert, 509 U.S. at 587 ( [Petitioners] contend that the Frye test was superseded by the adoption of the Federal Rules of Evidence. We agree. ) (footnote omitted). 7. Id. at 588 (quoting Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169 (1988) (citing FED. R. EVID )). 8. See id. 9. See Margaret A. Berger, Procedural Paradigms for Applying the Daubert Test, 78 MINN. L. REV. 1345, (1994). 10. See Daubert, 509 U.S. at Id. at Id. at Id. at n.9 (emphases added).

3 2000] THE DAUBERT GATEKEEPER STANDARD 707 circumstantial guarantees of trustworthiness. Here, a crucial distinction must be made between evidentiary reliability in the scientific sense, which focuses on the validity of the underlying science, and evidentiary reliability in the hearsay sense, which generally focuses instead on the circumstances surrounding the evidence and the speaker. This Note argues that in the years since the Supreme Court handed down the Daubert standard, some of the circuit courts have misconstrued Justice Blackmun s new standard of reliability. Courts have traditionally had much more exposure to hearsay doctrine and its emphasis on external reliability factors than to science and the concept of scientific validity. Perhaps understandably then, these courts have misinterpreted the reliability of scientific evidence to require hearsay-like circumstantial guarantees of trustworthiness, rather than scientific validity. The result has been an emphasis on factors external to science rather than on science itself. The premise of this Note is novel because while most of the current literature focuses on how the Daubert test has been and should be interpreted, little if any of it has acknowledged a growing analytical parallel in subsequent decisions to hearsay doctrine. Furthermore, this topic is of importance because, for reasons to be explained, the analytical parallel to hearsay is prone to break down in the context of scientific evidence and to result in inaccurate judicial decisions. It is impractical to completely exclude hearsay-like factors from judicial evaluations of scientific evidence. On the contrary, at least some attention should be paid to them. This Note simply seeks to warn against an overemphasis on these factors as, unfortunately, hearsay-like thinking is an imperfect substitute for determining reliability by simply critiquing the science itself. Indeed, over-reliance on these factors can result (and arguably has already resulted) in inaccurate decisions. By emphasizing hearsay-like circumstantial issues rather than the underlying science, courts risk making decisions in which scientifically valid testimony and conclusions are excluded simply because certain external factors are missing. Conversely, this misplaced emphasis can also result in the admission of scientifically suspect evidence which, due to the presence of certain external indicators, seems reliable on its surface but is in fact not so. Therefore this Note advocates a shift away from the current focus and back to an emphasis on the science and scientific process itself. Part I outlines the Daubert test, showing how it intended to establish a new evidentiary standard for scientific evidence. Emphasis is placed on the

4 708 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 73:705 majority s distinction between reliability for hearsay purposes, and reliability for purposes of scientific evidence. Part II then describes the particular interpretation that the Ninth Circuit has given Daubert, focusing on how it has incorrectly construed the standard by emphasizing hearsaylike concerns instead of scientific validity. Part III then observes that the Seventh Circuit seems to have adopted a similar construction of the Daubert standard. Part IV demonstrates how this misplaced emphasis can result, and arguably has already resulted, in some poor decisions by the courts, at least within the Seventh and Ninth Circuits. Finally, Part V advocates an emphasis on considerations of scientific reliability, rather than those of established hearsay doctrines. This emphasis on scientific reliability, rather than the current emphasis on hearsay-like reliability principles, would result in better judicial decisionmaking. I. THE DAUBERT TEST: JUDGES AS GATEKEEPERS A NEW STANDARD FOR RELIABILITY A. THE SPECIAL CASE OF SCIENTIFIC EVIDENCE As previously mentioned, Daubert dictated that trial judges faced with scientific evidence should take on the role of gatekeeper, screening the evidence for both relevance and reliability. These two requirements were determined by considering the following four factors: 1) whether the scientific theory or technique employed by the expert can be (and has been) tested, 14 2) whether it has been published or subjected to peer review and publication, 15 3) the known or potential rate of error inherent in the theory or technique, 16 as well as the existence and maintenance of standards controlling the technique s operation, 17 and finally 4) general acceptance, the old Frye standard. 18 It seems apparent that Justice Blackmun, in delineating the new role of gatekeeper for judges, has also set forth a new standard of reliability. In other words, assuming the role of gatekeeper meant taking on a whole new set of responsibilities which judges previously were not required to assume. Screening evidence for relevance and reliability, says Justice Blackmun, means judges must make sure that expert testimony consists of scientific 14. Id. at Id. 16. Id. at Id. 18. See id.

5 2000] THE DAUBERT GATEKEEPER STANDARD 709 knowledge, which he defined not as having been derived from a particular body of truth, but rather as having been derived by the scientific method. 19 The emphasis was on science as a process. If the evidence was derived according to a certain method, then it should be admissible regardless of what its conclusions are: The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate. 20 Thus, the mere fact that a particular expert arrives at a different conclusion than others is irrelevant as long as that expert has come to his conclusions via the correct process, that is, the scientific method. This emphasis on process over result is the reason that general acceptance was downgraded from dispositive under Frye, to merely one of four factors under Daubert. But Justice Blackmun did not stop there. He seemed to recognize, rightly so, that what he was really doing was insisting that judges adopt an entirely new standard for reliability of evidence. Unlike other types of evidence, scientific evidence has its own indicia of reliability, and these indicia are different than those of any other type of evidence. Specifically, reliability in the context of scientific evidence is determined solely by whether the scientific conclusion is derived using the scientific method. The realm of scientific evidence, then, should be considered a special case, where the standard for reliability is determined differently than in other areas of evidence. This distinction was made explicit in the text of Daubert: [T]he requirement that an expert s testimony pertain to scientific knowledge establishes a standard of evidentiary reliability. 21 The Justice seems to be creating a new standard of reliability specifically for scientific evidence. The idea is further developed in footnote nine of the opinion, which states as follows: We note that scientists typically distinguish between validity (does the principle support what it purports to show?) and reliability (does application of the principle produce consistent results?). Although the difference between accuracy, validity, and reliability may be such that each is distinct from the other by no more than a hen s kick, our reference here is to evidentiary reliability that is, trustworthiness. In a case involving scientific 19. Id. at Id. at 595 (emphasis added). 21. Id. at 590 (emphasis added).

6 710 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 73:705 evidence, evidentiary reliability will be based on scientific validity. 22 It is unfortunate that the clearest language of the opinion is tucked away in a footnote. Scientific evidence, like all other evidence, is to be evaluated according to its reliability, which in turn is determined by its trustworthiness. As indicated previously, though, the trustworthiness of scientific conclusions is evaluated by whether they stem from use of the scientific method. Plainly, then, the directive of the Court is simple. Judges should, as usual, evaluate all evidence according to its trustworthiness. But judges should also recognize that unlike other types of evidence, the primary indicator of trustworthiness for scientific evidence is whether it utilizes the scientific method. This Note is not alone in arguing this point. Support for this proposition can also be found in the fact that even certain published judicial guidelines instruct judges to directly examine scientific methodologies. The Federal Judicial Center s Manual for Complex Litigation, for example, states that the court must rule on objections... going to the scientific reliability and relevance of proffered evidence. 23 It therefore follows that the reasoning or methods underlying the [expert] testimony must be scientifically valid and relevant to the facts at issue. 24 Daubert s call for emphasis on reasoning and process over other secondary concerns like circumstantial factors seems to be relatively well-known. B. HEARSAY: A MORE TRADITIONAL STANDARD OF RELIABILITY The key to understanding the special case of scientific evidence lies in noting, as above, that the reliability of scientific evidence is determined by focusing on the process by which it is obtained. This is in sharp contrast to hearsay evidence, where courts usually look not to the process the speaker used, but to the circumstances surrounding the making of statements and conclusions. For example, in deciding to admit hearsay, judges often do not ask whether the declarant went through the correct procedures before making the hearsay statement, but instead ask whether the factual circumstances surrounding the statement imply that the statement is truthful. Typical issues are whether the declarant was speaking 22. Id. at 590 n.9 (some emphasis added) (citations omitted). 23. MANUAL FOR COMPLEX LITIGATION (3d ed. 1995) (Admissibility of Expert Testimony). 24. Id. (emphasis added).

7 2000] THE DAUBERT GATEKEEPER STANDARD 711 spontaneously, 25 or whether the statement was made under conditions where someone would be expected to tell the truth. 26 The former, Federal Rule of Evidence 803(2), indicates that statements made spontaneously under the stress of excitement are reliable partly because people are usually incapable of fabricating quick lies while under stress. 27 In the latter, one example concerns Rule 803(4), where statements made to physicians for purposes of obtaining medical treatment are considered reliable at least partly because patients usually describe their condition accurately in order to receive the best possible treatment. 28 In hearsay then, courts often look to surrounding circumstances, such as a spontaneous statement during a condition of stress, or whether the speaker was seeking treatment, rather than to the actual, direct thought process of the speaker in order to determine reliability. The emphasis in hearsay, then, is not on process but on surrounding circumstance. The distinction seems straightforward but it has many implications. Perhaps the most readily obvious one (at least the one with the most consequences for judges) is that evaluating scientific evidence by a different reliability standard than hearsay evidence requires a different set of skills. This is a task that judges are often ill-prepared and/or apprehensive about, and as a result may be reluctant to perform. The simple fact that many judges often are not trained in science makes dealing with scientific issues a stressful experience. U.S. District Judge Alfred V. Covello of the District of Connecticut has likened the experience to being hit... between your eyes with a four-by-four. 29 Judge Covello is probably representative of an extremely large number of legal practitioners, many of whom consider the evaluation of expert scientific testimony one of the most difficult problems that courts face. 30 Justice Blackmun seemed to recognize this prevailing set of attitudes within the legal profession, while still noting his confidence that federal judges possess the capacity to undertake this review. 31 Indeed, many 25. See, e.g., FED. R. EVID. 803(1) ( Present sense impression ); FED. R. EVID. 803(2) ( Excited utterances ). 26. See, e.g., FED. R. EVID. 803(4) ( Statements for purposes of medical diagnosis or treatment ); FED. R. EVID. 804(b)(3) ( Statement against interest ). 27. See CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, EVIDENCE UNDER THE RULES (1996). 28. See id. at Quoted in Jay P. Kesan, A Critical Examination of the Post-Daubert Scientific Evidence Landscape, 52 FOOD & DRUG L.J. 225, 225 & n.2 (1997). 30. See, e.g., Thomas A. Wiseman, Jr., Judging the Expert, 55 OHIO ST. L.J. 1105, 1105 (1994). 31. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593 (1993).

8 712 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 73:705 commentators have discussed the feasibility of judges being able to adequately review scientific claims. 32 Their arguments are supported by the fact that judges do not need to familiarize themselves with every intimate detail of science. 33 Rather, they must only learn enough to be able to separate the good science from the bad. As will be shown below, this is most likely a feasible task. The second implication of this distinction between process- and circumstance-based reliability stems from the recognition that the two concepts are relatively close, both being based on reliability but defining it slightly differently. Because these two different types of reliability are somewhat similar, they are easily confused, especially if one is suddenly faced with one type but is used to thinking in terms of the other. Placed in this context, it may have been almost inevitable that these two different types of reliability were confused, with some judges thinking of scientific reliability in the more familiar terms of hearsay reliability. This Note argues that, in fact, this confusion has already occurred in at least two different circuit courts. Certain cases in both the Ninth and Seventh Circuits, when their logic is analyzed, exhibit signs that the respective courts are beginning to think about the reliability of scientific evidence in hearsay-like terms. II. THE NINTH CIRCUIT S INTERPRETATION OF THE SUPREME COURT S DAUBERT STANDARD A. THE INFLUENCE OF HEARSAY THINKING IN THE DAUBERT REMAND Perhaps the best indication that these two types of reliability are easily confused is the fact that this confusion did not take long to appear. Indeed, it surfaced in the immediate successor to Daubert: the remanded Daubert decision of the Ninth Circuit. With a new standard for reliability and four new factors that it had laid out, the Supreme Court vacated the previous decision and sent the Daubert case back to the Ninth Circuit for further proceedings consistent with this opinion. 34 In 1995, the Ninth Circuit, this time with guidance from the Supreme Court, decided Daubert v. Merrell Dow Pharmaceuticals, Inc. 35 for the 32. See, e.g., Bert Black, Francisco J. Ayala & Carol Saffran-Brinks, Science and the Law in the Wake of Daubert: A New Search for Scientific Knowledge, 72 TEX. L. REV. 715, (1994). 33. See id. at Daubert, 509 U.S. at F.3d 1311 (9th Cir. 1995).

9 2000] THE DAUBERT GATEKEEPER STANDARD 713 second and final time. Perhaps just as controversial as the first decision, 36 the opinion opens notably by expressing the Ninth Circuit s trepidation at the task handed down to it. Referring to the Supreme Court s mandate as putting federal judges in an uncomfortable position, 37 Judge Kozinski went on to characterize the new Daubert test as daunting 38 due to the fact that we [judges] are largely untrained in science and certainly no match for any of the witnesses whose testimony we are reviewing. 39 The reluctance to address issues of science, while understandable, may have been why the Ninth Circuit s reasoning seems to have diverged from the dictates of the Supreme Court. The opinion follows the Court s language when, in beginning to analyze the reliability of the scientific evidence at issue, it claimed that it was taking on a gatekeeping role, policing the evidence for reliability. 40 However, the opinion then begins to analyze scientific reliability in terms similar to an analysis of hearsay reliability. Judge Kozinski interprets reliability to require a showing of some objective, independent validation of the expert s methodology, 41 indicating that the court s focus is on the circumstances that surround the expert and his or her statement, rather than on the science itself. He then described a reliability test that clearly incorporates standard hearsay principles. Reliable scientific evidence, he says, should grow naturally and directly out of research 42 which was conducted independent of litigation. Suspect, then, is evidence that was developed expressly for the purpose of testifying. 43 The court s focus was on the motive of the speaker, not on whether scientific processes were followed: experts whose findings flow from existing research are less likely to have been biased toward a particular conclusion by the promise of remuneration, 44 meaning that the reliability of scientific evidence should be determined, at least partly, by indirect indicators such as profit motive. The reference to hearsay standards is obvious. The importance of science as process was subverted to motive, a circumstantial indicator of reliability. 36. See, e.g., Patrick C. Barry, Admissibility of Scientific Evidence in the Remand of Daubert v. Merrell Dow Pharmaceuticals, Inc.: Questioning the Answers, 2 WID. L. SYMP. J. 299 (1997). 37. Daubert, 43 F.3d at Id. at Id. 40. See id. 41. Id. 42. Id. at See id. 44. Id.

10 714 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 73:705 Yet, in what could be the clearest indicator of hearsay s influence on the Daubert reliability test, the court stated that independent research carries its own indicia of reliability, as it is conducted, so to speak, in the usual course of business and must normally satisfy a variety of standards to attract funding and institutional support. 45 The resemblance to the business records exception 46 is manifest. Under the business records exception, hearsay is admitted because its routine recording as part of the ordinary course of a business gives the recorder no motive to lie. Using reasoning similar to that of Federal Rule of Evidence 803(6), a scientist s research is deemed reliable under the Ninth Circuit standard if it was performed in the ordinary course of the scientist s business. Since a scientist s regular research is motivated by funding and other support considerations to meet certain minimum criteria, it should be considered more trustworthy than other activities. While the reasoning used is not exactly that of the business records exception, the thinking is obviously influenced by hearsay doctrines. Scientists are inherently more trustworthy, says the Ninth Circuit, if their research is not driven by a litigation-related profit motive and if they perform it as part of the usual course of business, which contains its own profit (and other) motives to ensure reliability. Profit motives and a usual course of business are both circumstantial guarantees of trustworthiness, lying completely outside of the scientific process by which that evidence is obtained. 47 In perhaps simpler terms, the Supreme Court s directive in Daubert was that judges are to draw a line between the facts of the case (e.g., exposure to a particular chemical, etc.) and the scientist s conclusion (e.g., that the exposure caused plaintiff s cancer). This line should be called the scientific method. It is the job of the judge to ensure that the scientist has traversed from fact to conclusion along this line. If he has not, then it is the gatekeeper s responsibility to deny admission. However, the Ninth Circuit s focus is not on fact, conclusion or the line drawn between them. Rather, they examine external factors such as motive, which are completely removed from this line. If the external factors are there, says the court, it matters not whether the scientist walks the line correctly. 45. Id. (emphasis added). 46. See FED. R. EVID. 803(6) ( Records of regularly conducted activity ). 47. One can also see inconsistencies in the court s arguments. For instance, the court apparently thinks that litigation-related profit motives can lead scientists to cut corners on their research and draw suspect conclusions, whereas the profit motive of acquiring funding will not do so. The court seems to give no ground for distinguishing these two types of profit motives.

11 2000] THE DAUBERT GATEKEEPER STANDARD 715 This flies directly in the face of the Supreme Court s mandate that judges should focus solely on principles and methodology. 48 Justice Blackmun s clear language leaves no room for consideration of external circumstance. The primary consideration should be the process involved. Factors such as motive are to be, at most, secondary considerations, and are not to be given the predominant weight they possess in the Daubert remand. 49 As a counter-argument, it must be noted that hearsay considerations of circumstance were not intended by the Ninth Circuit to be dispositive. The opinion concluded its reasoning by stating that motive considerations are only one of the two principal ways the proponent of expert testimony can show that the evidence 50 is reliable. The other way is whether the research has been subjected to peer review, the Supreme Court s second factor. 51 Furthermore, the opinion went on to state that even if these two factors are not met, that is, a profit motive existed and no peer review of the evidence occurred, scientific evidence could still be considered admissible, but the experts must explain precisely how they went about reaching their conclusions and point to some objective source... to show that they have followed the scientific method, as it is practiced by (at least) a recognized minority of scientists in their field. 52 It can thus be inferred that if the first two factors, lack of motive and peer review, are not met, the court will not per se exclude the evidence but it will raise the admissibility bar, requiring both a more precise explanation of the methodology and an objective source. In addition, even with the opinion s emphasis on circumstance, the Ninth Circuit still performs a certain degree of inquiry into scientific methodology. The crux of the case, from an evidentiary standpoint, was the scientific evidence of one Dr. Palmer, who testified that Bendectin (once manufactured by Merrell Dow) caused the birth defects of Jason 48. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993). 49. See Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, (9th Cir. 1995) ( Establishing that an expert s proffered testimony grows out of pre-litigation research or that the expert s research has been subjected to peer review are the two principal ways the proponent of expert testimony can show that the evidence satisfies the first prong of Rule 702. ). See also id. at 1317: One very significant fact... is whether the experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation,... in determining whether proposed expert testimony amounts to good science, we may not ignore the fact that a scientist s normal workplace is the lab or the field, not the courtroom or the lawyer s office. 50. Daubert, 43 F.3d at Daubert, 509 U.S. at Daubert, 43 F.3d at 1319 (emphasis added).

12 716 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 73:705 Daubert and Eric Schuller. The children s mothers took the anti-nausea drug prenatally. 53 The court rejected Dr. Palmer s causation evidence as failing the Daubert test, first noting that his research was conducted for the purposes of the lawsuit 54 and next noting that it was not peer reviewed. 55 Since neither factor was met, the court raised the admissibility bar and required either a precise and sufficient explanation of the expert s methodology, or an objective source. Neither existed, 56 so Dr. Palmer s evidence was denied admission. 57 However, in concluding that the explanation was insufficient, the court did some preliminary investigation into Dr. Palmer s methodology. Only after discovering flaws in his reasoning did the court finally reject his conclusions as unreliable and therefore inadmissible. For instance, the court recognized that Dr. Palmer could not prove alternate causation (that is, that nothing else could have also caused plaintiffs birth defects). 58 As the former case illustrates, the Ninth Circuit was still willing to engage in a certain degree of investigation into scientific methodology. However, it is obvious from the above that this investigation is secondary to considerations of external circumstance like motive, which according to the court s logic must be examined first, before the science itself. Thus, even though methodology is not ignored altogether, its importance is certainly subordinate to the consideration of external circumstances. B. THE CONTINUING INFLUENCE OF HEARSAY-LIKE THINKING IN SUBSEQUENT DECISIONS The influence of hearsay doctrines in the Ninth Circuit s reasoning did not end with their Daubert decision. In Lust v. Merrell Dow Pharmaceuticals, Inc., 59 a similar evidentiary outcome was arrived at from 53. See Kesan, supra note 29, at See Daubert, 43 F.3d at 1317 ( While plaintiffs scientists are all experts in their respective fields, none claims to have studied the effect of Bendectin on limb reduction defects before being hired to testify in this or related cases. ). 55. See id. at 1319 ( Dr. Palmer does not testify on the basis of the collective view of his scientific discipline, nor does he take issue with his peers and explain the grounds for his differences. ) (citing Turpin v. Merrell Dow Pharm., Inc., 959 F.2d 1349, 1360 (6th Cir. 1992)). 56. See id. ( While these materials indicate that plaintiffs experts have relied on animal studies, chemical structure analyses and epidemiological data, they neither explain the methodology the experts followed to reach their conclusions nor point to any external source to validate that methodology. ). 57. See id. 58. See id. ( Dr. Palmer offers no tested or testable theory to explain how... he was able to eliminate all other potential causes of birth defects. ) F.3d 594 (9th Cir. 1996).

13 2000] THE DAUBERT GATEKEEPER STANDARD 717 facts similar to the Daubert decisions. Plaintiff Peter Lust brought a tort suit against Merrell Dow for birth defects allegedly caused by his mother s prenatal ingestion of Clomid, a fertility drug made by Merrell Dow. 60 Lust s only causation evidence was the expert testimony of Dr. Alan Done, and this evidence was held as inadmissible by the district court for lack of scientific reliability. 61 Because this evidence was inadmissible, Lust could make no showing of causation, and he lost on summary judgment. 62 This ruling was reviewed de novo 63 by the Ninth Circuit for abuse of discretion. 64 On appeal, the court began its analysis by establishing as its starting point the above mentioned Daubert test. Motive and peer review were to be examined first, and if they were not satisfied then a higher standard for admissibility was required. 65 The court indicated that Dr. Done did not subject any of his research to peer review. 66 It also claimed that it was not an abuse of discretion for the district court to have considered Done s research as performed within the litigation context. Specifically, the abuse of discretion standard was satisfied by the fact that Done, prior to the litigation, was at that time already a professional plaintiff s witness. 67 Based on this fact, the court found that it was not unreasonable to presume that Done s opinion on Clomid was influenced by a litigation-driven financial incentive. 68 Because both possible motive and lack of peer review were found, Done s scientific contentions were subjected to greater skepticism by the court. A more precise explanation of methodology, coupled with reliance on an objective source, was required. 69 The evidence was unable to clear this raised admissibility bar. The court concluded its analysis by excluding Done s testimony due to lack of an objective source demonstrating that his method and premises were generally accepted by or espoused by a recognized minority of teratologists See id. at See id. at See id. 63. See id. (citing Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995)). 64. See id. at See id. at More precisely, the district court determined this to be the case during its trial, and Lust did not dispute the issue on appeal. See id. 67. Id. 68. Id. 69. See id. (citing Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, (9th Cir. 1995)). 70. Id.

14 718 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 73:705 Two things are clear from this opinion. First, the case shows a relatively strong adherence to the guidelines laid down in the Daubert remand. Hearsay-like considerations such as motive are predominant and are considered first. Only after they are examined does the court turn to considerations of methodology. Second, even outside of the Daubert test used by the Lust court, the influence of hearsay doctrine is obvious. Methodology was explicitly subverted to other circumstantial indicators of reliability. After addressing Lust s causation arguments and concluding as above, the Ninth Circuit then discussed the Supreme Court s directive to focus on methodology and not conclusions. After the opinion recognizes the Court s mandate, it then (rather puzzlingly) decides to ignore it. Even though methodology should be the focus, the opinion seems to hint that conclusions alone may be a basis for a finding of inadmissibility: When a scientist claims to rely on a method practiced by most scientists, yet presents conclusions that are shared by no other scientist, the district court should be wary that the method has not been faithfully applied. 71 Admittedly, conclusions which look suspect are often a good indicator of problems with methodology. However, language such as this seems to indicate an overemphasis on conclusions as opposed to the process by which those conclusions were obtained. Certainly, given the court s already-demonstrated emphasis on factors outside of the scientific process, this is one more sign that the key for them is not the methodology, but rather an indirect indicator of that methodology. The Ninth Circuit continued on its course in the recent case of Cabrera v. Cordis Corp. 72 Plaintiff Laura Cabrera brought suit against the Cordis Corporation alleging that a brain shunt, manufactured by Cordis and implanted in her brain to treat her hydrocephalus, was defectively designed and manufactured from improper materials, resulting in several different injuries. 73 Summary judgment was granted in favor of Cordis due to the exclusions, in limine, of all Cabrera s experts. 74 On appeal, exclusion of plaintiff s expert testimony was reviewed for abuse of discretion Id. at F.3d 1418 (9th Cir. 1998). 73. See id. at See id. 75. The applicability of this standard was upheld, just prior to the decision in Cabrera, by the Supreme Court in General Electric Co. v. Joiner, 522 U.S. 136 (1997). Prior to this, the Ninth Circuit had to rely on its own precedent in establishing the proper standard of review in expert scientific evidence cases.

15 2000] THE DAUBERT GATEKEEPER STANDARD 719 After acknowledging that the Ninth Circuit s previous Daubert decision controlled and laying down the same rules as given above, 76 the court then went on to examine the expert testimony at issue. Cabrera involved an appellate review of the district court s exclusion of all four plaintiffs witnesses. Only three are relevant for purposes of this Note, the fourth being excluded under Rule as a waste of time. 78 The court rejected the evidence put forth by Dr. Aristo Vojdani. Noting that Dr. Vojdani s evidence had not been peer reviewed, 79 the court judged his testimony by the heightened admissibility standard. Under this standard the evidence failed, as no showing was made of either a precise explanation of methodology or an objective source to back it up. 80 The court ultimately looked into purely circumstantial factors to reject this evidence. Exclusion was based ostensibly on a lack of reliable methodology, 81 but the actual grounds given for exclusion were circumstantial. Vojdani s evidence was rejected because 1) he could not show that any other laboratory used the same tests he used, 82 and 2) his own documentation of his tests was destroyed in an earthquake and was therefore unavailable to the court. 83 The first reason focuses on whether others used the same methodology, a circumstantial indicator of the reliability of that methodology. The second focuses on lack of documentation to support the test results, again a factor external to the methodology itself. The next issue was the admissibility of scientific evidence provided by Dr. Nachman Brautbar. 84 Dr. Brautbar was hired to testify that silicone in the shunt caused some of Ms. Cabrera s injuries. First noting that Dr. Brautbar had developed his evidence expressly for the purpose of this 76. See Cabrera, 134 F.3d at (citing Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 597 (9th Cir. 1996) in part). 77. FED. R. EVID. 403 ( Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. ) ( Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. ). 78. See Cabrera, 134 F.3d at (excluding expert testimony of Saul Puszkin, Ph.D.). 79. See id. at 1422 ( Vojdani also testified that his test had never been peer-reviewed. ). 80. See id. 81. See id. ( The district court properly considered the methodology Vojdani used, rather than the test results, and did not abuse its discretion by finding it lacking in reliability. ). 82. See id. ( Vojdani testified only that several other laboratories perform silicone antibody tests, although he did not know if they performed the same test he uses. ). 83. See id. ( Vojdani had no documentation of even his own development of the test, as his records were destroyed in an earthquake. ). 84. See id.

16 720 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 73:705 litigation, 85 and then noting that none of his conclusions had been peerreviewed, 86 the court required a precise explanation of methodology or an objective source for admissibility. As none was provided, the court excluded his testimony. 87 The exclusion of testimony by these two doctors shows the court s strict adherence to the guidelines first laid down in the remand of Daubert. Circumstantial indicia of reliability are integral to determinations of admissibility. While the testimony of the fourth and last expert did not follow exactly the logic of the other two, it was excluded for similar circumstantial reasons. Dr. Pierre Blais testified that Cabrera s brain shunt was both defectively designed, and contained an inappropriate composition of silicone. 88 However, none of his research on this subject was published, and no articles from others existed on the subject. Dr. Blais testified that he was relying on information that many in the relevant circles knew, but no one had published. 89 The court was, perhaps understandably, suspicious of the nature of this information, and decided to exclude Dr. Blais evidence: By Blais s own characterization, he is relying on underground knowledge, untested and unknown to the scientific community. An opinion based on such unsubstantiated and undocumented information is the antithesis of the scientifically reliable expert opinion admissible under Daubert and Rule Of significance here is that the testimony of Dr. Blais appears to have been excluded solely for circumstantial reasons. No inspection of his methodology appears to have been performed at all. At least according to the opinion, the simple fact that his conclusions are unsubstantiated and undocumented is sufficient to deny admission. Perhaps no clearer evidence can exist that hearsay-like considerations, not methodology, dominate the Ninth Circuit s reasoning. Admittedly, from the court s perspective Dr. Blais information does sound suspicious. Such underground knowledge would seem to be almost inherently unreliable. However, while the court s conclusion may 85. See id. 86. See id. ( Dr. Brautbar could not identify any peer-reviewed research justifying his conclusion about reaction to hard silicone. ). 87. See id. at 1423 ( Dr. Brautbar did not identify any such objective source, or demonstrate that he followed a scientific method embraced by at least some other experts in the field. His testimony therefore does not satisfy Daubert or Rule 702. ). 88. Id. 89. See id. 90. Id.

17 2000] THE DAUBERT GATEKEEPER STANDARD 721 be, and indeed probably is, perfectly acceptable, its analysis is what is flawed. The court should have arrived at its conclusions through inspection of the scientific methodology Dr. Blais used. It certainly has the right to be more suspicious, and perhaps as a result inspect Dr. Blais evidence more carefully than otherwise. However, considerations of underground knowledge and the like, being merely a circumstantial indicator of trustworthiness, should be subordinate to an inspection of the methodology itself. Doctrinally, the court should have examined the methodology used by Dr. Blais to determine whether his conclusions followed scientifically from the facts. Had this been done, the court would have probably found some flaw in the evidence that would have produced the same result as their original line of reasoning. Even if it had not, then that would imply that Dr. Blais methodology was fine, meaning that his evidence should have been admitted. From these two cases it is apparent that hearsay doctrines and reasoning carry much weight with the Ninth Circuit. The rule laid out in the Daubert remand relies to a significant degree on circumstantial indicia of trustworthiness, and in recent cases this rule has greatly influenced decisions on the admissibility of scientific expert testimony. Furthermore, even when the rule laid down in the Daubert remand is not used, as in the rejection of Dr. Blais testimony, circumstantial indicators of reliability, rather than direct inspection of scientific methodology, dominate the court s decisionmaking. III. THE SEVENTH CIRCUIT S INTERPRETATION OF THE DAUBERT STANDARD The Ninth Circuit is not alone in its interpretation of the Supreme Court s Daubert directives. The Seventh Circuit also appears to have interpreted the Daubert test in terms resembling the business records hearsay exception. However, the Seventh Circuit has apparently chosen to focus on scientists ordinary course of business to an even greater degree than the Ninth Circuit. This focus neglects to consider the fact that scientists are not always right simply because they follow their usual routine. In addition, it also ignores the fact that scientists results are not always incorrect simply because they break their routine. As an example, consider Rosen v. Ciba-Geigy Corp., 91 where Plaintiff Raymond Rosen alleged that a heart attack he suffered was caused by a F.3d 316 (7th Cir. 1996).

18 722 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 73:705 prescription nicotine patch manufactured by Ciba-Geigy. 92 His original suit was dismissed on summary judgment for lack of causation evidence. 93 On appeal, the Seventh Circuit was asked to reconsider whether Rosen s causation evidence, the primary source of which was the testimony of Dr. Harry Fozzard, should be admitted. 94 After first noting that dealing with scientific evidence is a daunting task for judges, Judge Posner went on to outline the applicable test. 95 The test to be applied, he said, was simply to recognize that the Supreme Court s goal in Daubert was to make sure that when scientists testify in court they adhere to the same standards of intellectual rigor that are demanded in their professional work. 96 On one level, this statement is simply a correct way of saying that scientific evidence prepared for the courtroom should be of equally high quality as that prepared for other scientists. However, Judge Posner applies this test in a manner similar in nature to the business records hearsay exception. 97 If the scientist s research is performed in the same manner as the scientist s everyday work, the conclusions should be admissible in court. 98 Here again, one can see the emphasis on circumstantial indicia of reliability over a direct examination of the methodology. In exaggerated form, Posner s test seems to say that if the scientist s research is performed in the ordinary course of business, then it should be considered admissible whether or not the methodology is correct. The assumption appears to be that every scientist uses only correct methodologies in the ordinary course of business. Common sense seems to say that this is, at best, an overly optimistic assumption. Applying this test, the court first realized that Dr. Fozzard s testimony consisted of correlation evidence, and not causation evidence. 99 Fozzard s testimony was essentially that, because plaintiff wore a nicotine patch for three days and then suffered a heart attack, one can infer that the patch was 92. See id. at See id. 94. See id. at Indeed, the opinion cites to Judge Kozinski s language in the remand of Daubert. See id. (citing Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, (9th Cir. 1995)). 96. Id. (citations omitted). 97. See FED. R. EVID. 803(6), supra note 46 ( Records of regularly conducted activity ). 98. Pending a showing of relevance, of course. See Rosen, 78 F.3d at See id. at 319.

19 2000] THE DAUBERT GATEKEEPER STANDARD 723 the cause of the heart attack. The court rightly pointed out that this was merely a correlation, and one may not infer causation solely therefrom. 100 Had the court simply done this, it would probably have been sufficient grounds for a denial of admission under the Supreme Court s proper Daubert test. In other words, the decision could simply have stated correctly that mistaking correlation and causation is not something that would satisfy the standards of intellectual rigor normally required by scientists in their work. This by itself would have been a doctrinally correct rejection of Fozzard s expert testimony. The court instead phrased its rejection of the evidence in terms of its own hearsay-like nomenclature and analysis. Scientists, the court said, ordinarily do not make statements of causation strictly from correlation. Because the ordinary way for scientists to make a finding of causation is to test it in the laboratory, and because Fozzard had not (yet) done so, his evidence did not adhere to the same standards of intellectual rigor that scientists normally demand in their professional work. 101 Even though the court had made a certain degree of inquiry into scientific methodology (enough to realize the causation/correlation distinction), the clear influence of hearsay is obvious. Even when the court recognizes flawed methodology, it still seems to phrase its rejection of the evidence in ordinary course of business terms. The distinction between these two methods of rejecting evidence is a subtle yet important one. Correctly put, this evidence should have been rejected because confusing correlation with causation does not meet the normal standards of intellectual rigor required by everyday science this is a basic mistake that scientists are taught to avoid. The court, though, rejects the evidence because confusing correlation with causation is something that scientists do not ordinarily do. In other words, the key for the court is not the level of intellectual rigor employed (which it should be), but rather the key is in what the typical course of business is, and the two are not always synonymous. The court neglects both the fact that something done outside the ordinary course of things can still be done in an 100. See id. ( We are baffled by Fozzard s failure to make this elementary distinction [between causation and correlation]. Shoveling snow can precipitate a heart attack, but it cannot cause coronary artery disease. ) See id. See also id. at 319: Since Fozzard is a distinguished cardiologist, his conjecture that nicotine can have this effect and may well have had it on Rosen is worthy of careful attention, even though he has not himself done research on the effects of nicotine. But the courtroom is not the place for scientific guesswork, even of the inspired sort.

20 724 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 73:705 intellectually rigorous way, as well as the reverse case where it turns out that the standard way of doing things is logically flawed. On the other hand, one can ask why this distinction should matter, as it seems almost purely academic. As long as flawed evidence is barred, the exact grounds are of secondary importance. However, one can argue in return that use of incorrect grounds can lead to incorrect results. Situations may arise where results are obtained from scientifically correct methodologies that are nevertheless not employed in the scientist s ordinary course of business. One does not have to look far to find a good example of this. In Braun v. Lorillard Inc., 102 decided by the Seventh Circuit just two months after Rosen, Judge Posner was again asked to reconsider the admissibility, denied below, of expert scientific testimony. This time, Plaintiff Sara Braun brought suit for decedent Norman Braun, who died of mesothelioma, a type of cancer most commonly caused by exposure to crocidolite asbestos. 103 Plaintiff alleged that decedent s cancer was caused by his use of cigarette filters, which were manufactured by the Lorillard tobacco company and which contained crocidolite asbestos, the most toxic form of asbestos. 104 The jury below found for the defendants, and Braun appealed on a number of grounds. For evidentiary purposes, the most significant of these was the excluded testimony of Dr. David Schwartz. Dr. Schwartz is a professor of biochemistry and president of a consulting firm which, among other things, does environmental testing for the presence of asbestos. 105 Even though it was his normal practice to test building materials and not human tissue, he subjected a section of Braun s lung tissue to a test called high temperature ashing. 106 This test, a standard one used to test building materials for asbestos, essentially burns away all organic material, theoretically leaving behind just the asbestos and those other inorganic materials that have not burned off due to their high heat resistance. Dr. Schwartz reported that crocidolite asbestos fibers were found in the residue, pointing to the existence of residual asbestos fibers in Braun s lungs. 107 The court excluded Dr. Schwartz evidence on grounds that high temperature ashing is not the standard way to test for the presence of F.3d 230 (7th Cir. 1996) See id. at See id See id Id See id.

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