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New Approaches to Environmental Law and Agency Regulations: The Daubert Litigation Approach

July 2000

Citation: ELR 10557

Author: Charles D. Weller, David B. Graham

For trial lawyers and judges, the U.S. Supreme Court's "Daubert Four"—four unanimous decisions since 1993, Daubert v. Merrell Dow Pharmaceuticals, Inc.,1 General Electric Co. v. Joiner,2 Kumho Tire Co. v. Carmichael,3 and Weisgram v. Marley Co.4—overturned 70 years of trial practice regarding expert evidence, rewriting both when scientific and other expert evidence can and cannot be admitted at trial, and how a trial judge's decision to exclude or admit5 expert evidence is reviewable on appeal. Before Daubert, when a judge said "call your next witness," the experts in many cases would have been allowed to testify. After Daubert, when the judge instructed a lawyer to "call your next witness," none of the experts involved in these four Supreme Court cases were ultimately allowed to testify, and the same has been true in many other cases since 1993.6

This Article applies the Daubert Four to environmental and toxic tort7 litigation and regulation in three ways. In part I, the Article sets forth a public policy need, and opportunity, for a "next generation" of environmental regulation and litigation. Part II provides a litigator's guide to Daubert hearings and appeals regarding the admission and exclusion of expert witnesses, and sets forth a "does it work and why?" method for determining whether expert evidence is "reliable" enough to be admitted. Part III combines the new Daubert requirements for the use of experts at trial with a generalization of the underlying Daubert legal analysis of applying nonenvironmental federal law, such as the Federal Rules of Evidence, to environmental litigation. These two dimensions of Daubert are referred to as the "Daubert Litigation Approach." The Daubert Litigation Approach is then applied in 10 illustrative ways.

Mr. Weller and Mr. Graham are partners at Baker & Hostetler, LLP, in Cleveland, Ohio, Mr. Graham has been practicing environmental law for 28 years, starting with the U.S. Environmental Protection Agency in 1972, serving as inside counsel to a chemical company, and being in private practice since 1984. The National Law Journal recognized Mr. Graham as one of the "pioneers" of environmental law. He received his B.S. and J.D. from Louisiana State University in 1966 and 1969. Mr. Weller has been a trial attorney primarily in the antitrust, employee benefits, and health care areas for 27 years, which led to the interdisciplinary collaboration for this Article. He received his B.A. from Yale University in 1966 and J.D. from Case Western Reserve University in 1973. The authors thank their partners Maureen Brennan and Dale Vitale for their insights and assistance.

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