Professor Fried Delivers F.F. Randolph Lecture on Daubert v. Merrell Dow

Professor Fried Delivers F.F. Randolph Lecture on Daubert v. Merrell Dow


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By Paul Wachter
New York, April 15, 2009 — Delivering the F.F. Randolph Lecture on Tuesday, April 7, Charles Fried, the Nathaniel Fensterstock Visiting Professor of Law, revisited the arguments he made more than 15 years ago in a landmark Supreme Court case that helped establish rules governing the use of scientific evidence in court.

In Daubert v. Merrell Dow Pharmaceuticals, the plaintiffs, Jason Daubert and Eric Schuller, sued Merrell Dow claiming the company’s drug, Benedictin, had caused them serious birth defects when their pregnant mothers took it to treat morning sickness. To bolster their case, the plaintiffs submitted expert evidence based on animal studies, tests on live cultures, and re-analysis of existing, peer-reviewed studies on humans that previously had found no link between Benedictin and birth defects.

“The idea in these product liability cases is that you get an expert, establish that he’s qualified, he goes before the jury and then you have a payday,” said Fried, a Harvard faculty member since 1961 (where he is the Beneficial Professor of Law) and a longtime advocate of tort reform. Fried agreed to represent the defendants, he said, “to keep junk science out of the court.”

Prior to the 1993 Daubert decision, courts had relied on the Frye Rule, derived from the D.C. Circuit Court’s 1923 ruling in Frye v. United States. In that case, the court held that only propositions “generally accepted” by the scientific community may be admitted as evidence. (In Frye, the court had thrown out evidence procured from an early version of a lie detector test.)

In 1975 Congress enacted the Federal Rules of Evidence and many lawyers and scholars argued that these broadened the range of acceptable expert testimony.

Relying on the Frye Rule, lower courts had thrown out Daubert. “But the Supreme Court granted certiorari to resolve the inconsistencies between the Frye Rule and this Act of Congress,” Fried said. “A lot of people took an interest in this case, and our friends urged me to argue for the continued relevance of Frye. But that was a loser argument. The Court wasn’t going to say a 1923 D.C. Circuit Court decision trumps an Act of Congress.”

Instead, Fried looked to the Federal Rules of Evidence, particularly Rule 702, which references “scientific, technical, or other specialized knowledge,” as a requirement for the admissibility of expert testimony. “It can’t be astrology or mere speculation, and it must qualify as knowledge,” Fried said. “Most people are not allowed to testify to opinion. I could say, ‘In my opinion Bernie Madoff is guilty as hell,’ but that doesn’t work in court. What, then, are the standards by which we allow so-called experts to testify to their opinions?”

For his defense, Fried looked to the long history of science and its time-tested methods. “We didn’t argue the Frye Rule, which says that expert testimony had to be generally accepted by the scientific community,” he said. “Rather, we argued that to count as knowledge the testimony had to be grounded in the generally accepted methods of science. We argued for reliability.”

In a brief amicus curiae in support of the defense, the Solicitor General adumbrated several standards of reliability, which Fried (also a former Solicitor General) supported: Is the proposition testable? Has it been subjected to peer review? Do we know the potential for error? Is it generally accepted in the scientific community?

In a 9-0 decision, the Supreme Court remanded the case to the 9th Circuit, which, applying the Supreme Court’s newly enunciated criteria, dismissed the case—a victory for Fried and Merrell Dow. The Solicitor General’s standards for reliability have since been adopted by most state courts.

“But Daubert doesn’t solve everything,” Fried said. “What if there’s a genuine controversy and some scientists using accepted methodology say one thing, while others equally reliable say another? Then it goes before a jury of laymen, who don’t know what you’re talking about and who are left to make a decision.

“It’s a very strange result, and it’s dictated by our Seventh Amendment,” Fried continued. “The United States is the only Anglo-American country where you’re guaranteed a civil jury. The Seventh Amendment is nonsense, but we’re committed to it.”


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