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Daubert v. Merrell Dow Pharmaceuticals, Inc.

ELR Citation: 23 ELR 20979
Nos. No. 92-102, 509 U.S. 579/(U.S., 06/28/1993)

The court holds that the Federal Rules of Evidence, and not the common-law "general acceptance" test, provide the standard for admitting expert scientific testimony in a federal trial. The petitioners, two children with serious birth defects and their parents, sued the respondent alleging that the birth defects had been caused by the mothers' ingestion of Bendectin, an anti-nausea drug marketed by the respondent. The respondent moved for summary judgment, contending that Bendectin does not cause birth defects in humans and that petitioners would not be able to show that it does. In support of its motion, the respondent submitted the affidavit of a physician, an expert on the risks from exposure to chemical substances, who concluded on the basis of the existing literature that Bendectin could not cause human birth defects. The petitioners responded by presenting the testimony of eight experts, who concluded on the basis of animal and pharmacological studies and the unpublished reanalysis of previous epidemiological studies, that Bendectin can cause birth defects. Citing the then-Court of Appeals for the District of Columbia's 1923 opinion in Frye v. United States, the Ninth Circuit excluded the petitioners' expert testimony, because it was not based on a technique that is generally accepted as reliable in the relevant scientific community, and held that petitioners could not prove causation.

The Supreme Court rules that the Frye "general acceptance" test was superseded by the adoption of the Federal Rules of Evidence, specifically Rule 702. The Federal Rules of Evidence occupy the field, but the Court notes that the common law may serve as an aid to their application. The Court holds that nothing in the text of Rule 702 establishes "general acceptance" as an absolute prerequisite to admissibility of scientific evidence, nor does the respondent present any evidence that the Rules meant to incorporate that standard. The Court notes that Rule 702 places appropriate limits on the admissibility of purportedly scientific evidence by assigning to the trial judge the task of "gatekeeper," ensuring that such testimony is reliable and relevant. The Court further explores the duties of a trial judge regarding the admission of expert scientific testimony, noting several of the many considerations that will bear on the trial judge's inquiry, including whether the theory or technique in question can be and has been tested, has been subjected to peer review and publication, and its known or potential error rate. The Court emphasizes that the trial judge's inquiry into the admissibility of scientific evidence is to be flexible. In an effort to allay concerns that its opinion will lead to admission of any and all allegedly expert scientific testimony, the Court also sets forth the appropriate means by which evidence based on valid principles may be challenged.

In a partial dissent, Chief Justice Rehnquist and Justice Stevens agree with the Court's ruling, but do not join the majority's exploration into the application of Rule 702. The dicta of the majority opinion are unnecessary to decide the issues before the Court and only create more questions.

Counsel for Petitioner
Kenneth J. Chesebro
1600 Massachusetts Ave., Cambridge MA 02138
(617) 661-4423

Counsel for Respondent
Robert L. Dickson
Dickson, Carlson & Campillo
120 Broadway, 3d Fl., P.O. Box 2122, Santa Monica CA 90407
(310) 451-2273