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Focus on science, not checklists; lawyers must avoid efforts to force science to conform to the Daubert admissibility formula. Instead, they should focus on how scientists actually do their work.

Article Excerpt
The Supreme Court's Daubert trilogy--Daubert v. Merrell Dow Pharmaceuticals, Inc., (1) General Electric Co. v. Joiner, (2) and Kumho Tire Co., Ltd. v. Carmichael (3)--has forever changed the way lawyers fight battles over expert testimony. Before, experts often could testify based mostly on their credentials and demeanor; (4) now, a plaintiff must establish the scientific merit of the expert's opinions (or the merit based on the expert's field if he or she is not a scientist). As Justice Stephen Breyer made clear in Kumho, the objective of Daubert gatekeeping "is to make certain that an expert ... employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." (5)

This standard makes the expert evidence terrain steeper and more treacherous for plaintiffs, but not impassable for those who scale the heights by learning the science in their cases and presenting it clearly to both the judge and the jury. As in any battle, seizing the high ground is the key to victory, even though getting there may be tough.

The lawyer who masters the science in a case will not only get past Daubert, but also will be better prepared to present expert testimony to the jury and to attack the other side's experts. Perhaps most important, a plaintiffs' win at a Daubert hearing can change the dynamics of a case and push defendants toward a reasonable settlement.

Although science defies simple definition, most scientists would agree that a conclusion is neither valid nor reliable if it is not based on an empirically supported, rational explanation within the bounds of normal scientific discourse. In addition to reflecting the actual practice of science, this test fully accords with Daubert, especially as clarified in Kumho.

Despite the Daubert Court's clear admonition that its now-famous list of factors should not be considered exhaustive, (6) too many lawyers and too many courts have taken exactly that approach. The Fifth Circuit, lot example, has held that in "the vast majority of cases, the district court first should decide whether the factors mentioned in Daubert are appropriate. Once it considers the Daubert factors, the court then can consider whether other factors, not mentioned in Daubert, are relevant to the case at hand." (7) Other courts similarly start with the factors, and most of them often go no further.

Judges, however, are neither alone nor unabetted in their penchant for "factorology." Too often, their rulings merely reflect the way lawyers have argued the expert admissibility issue. Lawyers either refuse to or simply cannot learn the science well enough to "tell the scientific story." Instead they fall hack on what lawyers do best: They search for legal precedents and try to capture science in just the right checklist of factors.

For example, lawyers might argue that if the expert's work has been peer-reviewed, it must be admissible, because peer review is one of the famous Daubert factors. Or they maintain that lack of peer review requires exclusion. Both arguments are wrong. (8)

Taken together, the trilogy cases require an expert to provide an empirically supported, rational explanation, (9) but the testimony does not have to he absolutely certain to be admitted. Plaintiffs need not establish that experts are correct; as the Third Circuit stated, "They only have to demonstrate by a preponderance of the evidence that [the experts'] opinions are reliable." (10)

In his introduction to the Federal Judicial Center's Reference Manual on Scientific Evidence, Breyer explained the appropriate scope of judges' gatekeeping function by giving the example of a famous physicist who was asked if a certain scientific paper was wrong. The physicist replied, "That paper isn't even good enough to be wrong!" (11) It is only this kind of "science," Breyer explained, that the law should exclude from the courtroom. (12)

Thus, proving medical causation should not require an expert to clear a series of factor-by-factor hurdles. Zuchowicz v. United States provides an excellent example of the proper analysis. (13) The plaintiff claimed that an overdose of a drug used to treat endometriosis had caused his wife to develop primary pulmonary hypertension (PPH), which ultimately killed her. The court stated that "the rarity of PPH, combined with the fact that so few human beings have ever received such a high dose of [the drug], obviously impacted on the manner in which the plaintiff could prove causation." (14)

Although there was no epidemiological...

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