Daubert v. Merrell Dow: Missed Opportunity

March 1995

Issue: 50 Food and Drug Law Journal 71-93 (1995)

The decision in Daubert v. Merrell Dow did not change significantly the way courts analyze the admission of scientific evidence. This article looks at the evaluation of scientific evidence in terms of three different, but related, tests: a qualified expert and helpfulness test, a balancing test with an emphasis on methodology, and a modified general acceptance test. All three of these approaches were used by courts prior to Daubert, were utilized by the Supreme Court in Daubert, and have been used since that decision. While lower courts appear to be employing these three approaches more consistently after Daubert, they are not being applied in exactly the same manner. The Supreme Court's decision did not provide them with enough concrete guidance. The Daubert decision was a compromise between the competing goals of excluding "junk science" and of employing a standard flexible enough to adjust to progress. As a result, the Supreme Court missed an opportunity to create a consistent standard for the admission of scientific evidence.


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