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Arthur H. Bryant
Trial Lawyers For Public Justice, P.C.
1717 Massachusetts Ave., N.w.
Suite 800
Washington, D.C. 20036
(202) 797-8600

Steven E. Fineman
Counsel of Record
Weitz & Luxenberg, P.C.
180 Maiden Lane
New York, NY 10038
(212) 558-5500

July 29, 1997

Counsel for Amicus Curiae

Interest of the Amicus Curiae

Trial Lawyers for Public Justice ("TLPJ") is a national public interest law firm that specializes in precedent-setting and socially significant civil litigation and is dedicated to pursuing justice for the victims of corporate and governmental abuses. Litigating throughout the federal and state courts, TLPJ prosecutes cases designed to advance consumers' and victims' rights, environmental protection, product safety, civil rights and civil liberties, access to our civil justice system, and the protection of the poor and the powerless.

TLPJ acknowledges and supports the role of trial judges in ensuring the integrity of the court system by screening scientific expert testimony for threshold admissibility purposes. TLPJ is concerned, however, that the limited "gatekeeping" function assigned to trial judges by this Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) has been misinterpreted and misapplied by far too many litigants and courts to prohibit juries from considering reliable and relevant expert testimony. TLPJ is concerned that, in performing the inquiry required by Daubert, a number of trial judges--with the encouragement of opponents of the admission of scientific evidence such as Petitioners and their amici--have assumed the roles of jurors and "amateur scientists" in rejecting expert testimony with which they disagree, effectively barring the victims of mass torts and toxic exposures from the courthouse.

Although the question before this Court is the appropriate standard of appellate review of district court decisions excluding scientific testimony under Daubert, Petitioners and their amici argue at length for a drastically restrictive and self-serving interpretation of the Daubert principles. They effectively urge adoption of a new heightened standard for the admissibility of expert scientific testimony. TLPJ submits this brief for the purpose of responding to the erroneous interpretation of the Daubert standards advanced by Petitioners and their amici. TLPJ urges the Court to re-emphasize the limited "gatekeeping" function of trial judges. In so doing, the Court will provide necessary and timely guidance to litigants and district courts, and will greatly aid the task of appellate review.

Summary of Argument

Trial judges must exercise sound discretion as gatekeepers of expert testimony under Daubert. [Defendant], however, would elevate them to the role of St. Peter at the gates of heaven, performing a searching inquiry into the depth of an expert witnesses's soul--separating the saved from the damned. Such an inquiry would inexorably lead to evaluating witness credibility and weight of the evidence, the ageless role of the jury.

McCullock v. H.B. Fuller Company, 61 F.3d 1038, 1045 (2nd Cir. 1995)

In Daubert v. Merrell Dow Pharmaceuticals, this Court held that the Federal Rules of Evidence "relaxed" the traditional standard for the admissibility of expert scientific testimony and established a limited gatekeeping role for district courts pursuant to which trial judges should determine only whether proffered scientific testimony is "reliable" and "relevant." The Court held that scientific testimony is reliable if the expert's "methodology" is sound. The Court stressed that the methodology inquiry is a "flexible one," which should not include an assessment of the correctness of the expert's conclusions. The Court further held that expert scientific testimony is relevant if it will assist the trier of fact to understand the evidence or to determine a fact in issue. Finally, the Court stressed the distinction between the admissibility and the "sufficiency" of scientific testimony, pointing out that the jury system is the appropriate forum for addressing challenges to the sufficiency of such testimony through cross examination, presentation of contrary evidence, and careful jury instructions.

Contrary to the arguments of Petitioners and their amici, the United States Court of Appeals for the Eleventh Circuit properly interpreted and applied the Federal Rules and Daubert. The Eleventh Circuit carefully followed this Court's instruction that the Federal Rules provide the framework for determining the admissibility of expert testimony; that under the "liberal thrust" of the Federal Rules, traditional barriers to opinion testimony have been "relaxed"; that to be admissible, expert scientific testimony must only be "reliable" and "relevant"; that expert scientific testimony is reliable if the expert's "methodology" is sound; that the methodology inquiry is a "flexible one," which must focus on the expert's reasoning and not upon his conclusions; that expert scientific testimony is relevant if it will assist the jury in determining facts in dispute; and, that the trial judge's gatekeeping responsibility does not extend to assessing the sufficiency of a litigant's evidence or rendering scientific opinions.

Petitioners and their amici ignore Daubert's teachings. Disregarding what Daubert actually said, they seek to turn the case on its head and create a heightened standard for the admissibility of expert scientific testimony that would essentially require judges to act as jurors and "amateur scientists." Petitioners and their amici act as if the Court in Daubert rejected the liberal thrust of the Federal Rules of Evidence and imposed new "formidable burdens" on the proponents of expert testimony, requiring that judges subject such testimony to "more penetrating pretrial scrutiny." Daubert, however, did nothing of the sort.

Petitioners and their amici act as if Daubert held that the admissibility of a scientist's testimony depends upon the correctness or general acceptance of his conclusions, ignoring this Court's instruction that the focus should only be on the expert's methodology. Disregard of this Court's admonition that the "focus" of the reliability assessment be "solely on principles and methodology, not on the conclusions that they generate," would impermissibly permit (if not obligate) trial judges to decide the correctness of an expert's opinions, nullify the "ageless role of the jury," and encourage jurists to act as "amateur scientists." As the Eleventh Circuit properly observed, trial judges must be "careful not to cross the line between deciding whether the expert's testimony is based on scientifically valid principles' and deciding the correctness of the expert's conclusions... the gatekeeping responsibility of the trial courts is not to weigh or choose between conflicting scientific opinions, or to analyze and study the science in question in order to reach its own scientific conclusions." Joiner v. General Electric Co., 78 F.3d 524, 530 (11th Cir. 1996).

Petitioners and their amici act as if Daubert established a definitive set of factors for trial courts to use in determining whether an expert's methodology is reliable. Although this Court emphasized that the methodology inquiry is to be a "flexible one," and that many factors might bear on the analysis, Petitioners and their amici argue that the four factors discussed in the Court's "general observations" about what may constitute reliable methodology--testability, publication/peer review, error rate and general acceptance--must be satisfied in order for scientific testimony to be admissible. Such an "inflexible" approach is incompatible with this Court's instruction in Daubert, and would prevent reliable and relevant scientific testimony from being heard by juries.

Petitioners and their amici also act as if Daubert authorized trial judges to exclude scientific testimony from evidence if they find it unpersuasive, ignoring the critical distinction between the admissibility and the sufficiency of scientific testimony. Unlike the admissibility determination, the sufficiency inquiry, which asks whether the collective weight of a litigant's evidence is adequate to present a jury question, lies further down the "litigational road." Petitioners and their amici would take a short cut down that road to have judges determine the merits of an expert's conclusions and the weight of the totality of a plaintiff's evidence in the context of lengthy and costly pre-jury trial bench trials on the ultimate question of causation. Such an approach is at odds with Daubert, and would essentially require the re-drafting of the Federal Rules.

To achieve judicial uniformity in admitting expert scientific testimony, to avoid the inappropriate exclusion of reliable and relevant testimony, and to preserve the jury-adversarial system as the means of resolving factual disputes, the Court should take this opportunity to re-emphasize the limited nature of the trial judge's gatekeeping function. Trial judges should not perform "a searching inquiry" into an expert's conclusions or "witness credibility and weight of the evidence"--rather, they should decide the admissibility of scientific expert testimony pursuant to the language and spirit of the Federal Rules and the instruction of this Court in Daubert.

Argument

I. In Daubert, this Court Held That the Federal Rules "Relaxed" the Traditional Standard for the Admissibility of Expert Scientific Testimony and Established a Limited Gatekeeping Role for Trial Judges.

In Daubert, this Court articulated a new and "relaxed" procedure for determining the admissibility of expert scientific testimony. The essential points of Daubert are as follows:

Federal Rules of Evidence 104(a) and 702 provide the framework for determining the admissibility of expert scientific testimony in federal courts. Daubert, 509 U.S. at 587-593.

This Court rejected the defendant's argument that the "general acceptance" test articulated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) should govern the admissibility analysis, and agreed with the plaintiff that the standard for admissibility should not be so "rigid." Daubert, 509 U.S. at 587-588.

The Court concluded that the "rigid general acceptance requirement would be at odds with the liberal thrust of the Federal Rules and their general approach of relaxing the traditional barriers to opinion' testimony." Daubert, 509 U.S. at 588.

In rejecting the general acceptance test advocated by the defendant, the Court ruled that Rule 702 requires trial judges to ensure, in their "gatekeeping role," only that the proffered scientific testimony is "reliable" and "relevant." Daubert, 509 U.S. at 590-591.

The Court stated that "reliability" turns on whether the expert's "methodology" is sound. The Court emphasized that the judge's "focus, of course, must be solely on principles and methodology, not on the conclusions they generate." Daubert, 509 U.S. at 595.

Although the Court offered "general observations" that could bear upon the "reliability" of scientific evidence, the Court stressed that "[m]any factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test," and "emphasized" that the inquiry is a "flexible one." Daubert, 509 U.S. at 593-594.

The Court held that expert scientific testimony is "relevant," or "fits," if it relates to an issue at hand, i.e., if it will "assist the trier of fact to understand the evidence or to determine a fact in issue." Daubert, 509 U.S. at 591.

The Court noted the defendant's concern that adopting a more "relaxed" approach to the admission of scientific testimony would prompt "befuddled juries" to be "confounded by absurd and irrational pseudoscientific assertions," but said the defendant "seems to us to be overly pessimistic about the capabilities of the jury and of the adversary system generally. Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509 U.S. at 595-96.

The Court also noted that if the "scintilla of evidence presented" is "insufficient," a trial judge "remains free to direct judgment" or "grant summary judgment" under the standards applicable to those "conventional devices," but not to resort to "wholesale exclusion" under Rule 702. Daubert, 509 U.S. at 596.

II. The Eleventh Circuit Properly Applied Daubert's Teachings.

Petitioners and their amici argue the Eleventh Circuit misstated and misapplied the requirements of Rule 702 and Daubert. See, e.g., Brief for Petitioners at 45 (claiming the Eleventh Circuit "misunderstood the requirements of Rule 702 and misapplied Daubert"); Brief Of The Dow Chemical Company at 13 (arguing "the court of appeals endorsed an interpretation of Daubert and the Federal Rules of Evidence that is erroneous as a matter of law"); Brief Of The American Medical Association at 5, 9-10 (asserting the "criteria applied by the Eleventh Circuit are inconsistent with Daubert," and that the "court of appeals improperly limited the factors that may be considered by a district court in determining the admissibility of expert testimony"); Brief Of The Chemical Manufacturers Association at 14 (arguing the Eleventh Circuit erred in "seriously misinterpreting and misapplying Daubert's core holding"). In fact, however, the Eleventh Circuit accurately defined and applied the Daubert admissibility test:

Following Daubert, the Eleventh Circuit observed that the Federal Rules of Evidence "superseded the Frye general acceptance test," and that the Rules "introduced a more liberal approach to the question of admissibility of scientific evidence." Joiner, 78 F.3d at 529.

Citing Daubert, the Eleventh Circuit stated "the critical concerns of Rule 702 are evidentiary reliability and relevancy." Joiner, 78 F.3d at 529.

Following Daubert, the Eleventh Circuit stated that, in assessing the "reliability" of expert scientific testimony, the "district court must examine the reasoning or methodology underlying the expert opinion," but must "be careful not to cross the line between deciding whether the expert's testimony is based on scientifically valid principles' and deciding upon the correctness of the expert's conclusions. The latter inquiry is for the jury...." Joiner, 78 F.3d at 530.

The Eleventh Circuit recounted this Court's "general observations" that could bear on the reliability inquiry and, in accord with Daubert's cautionary language, held that the "factors are neither exhaustive nor applicable in every case." Joiner, 78 F.3d at 530.

Consistent with Daubert, the Eleventh Circuit explained that the "relevance" or "fit" requirement is determined by "whether expert testimony offered in the case in sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute." Joiner, 78 F.3d at 530.

In light of Daubert's emphasis upon the jury trial as the appropriate forum for determining the sufficiency of an expert's testimony, the Eleventh Circuit stated that in "analyzing the admissibility of expert testimony, it is important for trial courts to keep in mind the separate functions of judge and jury," and stressed that "the gatekeeping role" is "not intended to turn judges into jurors" or to require them to "weigh or choose between conflicting scientific opinions." Joiner, 78 F.3d at 530.

Consistent with Chief Justice Rehnquist's observation, in his partial dissent in Daubert, that the Federal Rules do not impose on trial judges "the obligation or the authority to become amateur scientists," the Eleventh Circuit warned that the "gatekeeping role" is "not intended to turn judges into...surrogate scientists" or to require them to "analyze or study the science in question in order to reach [their] own scientific conclusions from the material in the field." Joiner, 78 F.3d at 530.

III. Petitioners And Their amici Are Attempting to Turn Daubert on Its Head And Create a Heightened Standard For The Admissibility of Scientific Testimony That Would Require Trial Judges to Act as Jurors And Amateur Scientists.

Although the question before the Court is the appropriate standard of appellate review of district court decisions excluding expert scientific testimony under Daubert, Petitioners and their amici argue extensively--and, as we have shown, incorrectly--that the Eleventh Circuit misread and misapplied Daubert's teachings. In so doing, they attempt to turn Daubert on its head, offering a skewed interpretation of the case that would, if adopted, create a heightened standard for the admissibility of expert scientific testimony that would require trial judges to assume the roles of jurors and "amateur scientists." Indeed, Petitioners and their amici act as if Rule 702 and Daubert: (a) raised the standard for admissibility of expert scientific testimony; (b) directed that the admissibility determination depends upon the conclusions of the expert; (c) established a rigid and definitive checklist for determining whether expert testimony is reliable; and (d) authorized trial judges to exclude scientific testimony from evidence if they find it unpersuasive.

A. Petitioners And Their amici Wrongly Act As If Daubert Rejected The Federal Rules Of Evidence.

Although this Court unequivocally rejected the rigid "general acceptance" test in Daubert and adopted, consistent with the liberal thrust of the Federal Rules, a more "relaxed" approach to deciding the admissibility of expert scientific testimony, Petitioners and their amici ignore these principles and assert that Daubert imposed "formidable burdens" on the proponents of such testimony, and "clearly requires that judges subject expert evidence to more penetrating pretrial scrutiny." See, e.g., Brief Of The Dow Chemical Company at 13 (arguing "Daubert imposes formidable burdens on experts to demonstrate the reliability and relevance of their theories to the satisfaction of the district court"); Brief Of The American Medical Association at 10 (asserting that "contrary" to endorsing a more "liberal" or "permissive" approach to the admissibility of expert scientific testimony, "Daubert clearly requires trial judges to subject expert evidence to more penetrating pretrial scrutiny"); Brief Of The Pharmaceutical Research And Manufacturers Of America at 9, 21 (claiming Daubert requires that "a trial court must scrutinize each aspect of the methodology that an expert uses to reach a conclusion" as part of the "complex inquiry that district courts must conduct under Rule 702"); Brief Of The Chamber Of Commerce Of The United States Of America at 27 (arguing the "core of Daubert is its requirement for an intensive analysis of both the methodology and reasoning underlying the expert's opinion").

There is no support in Rule 702 or Daubert for these statements of a heightened admissibility test. See Daubert, 509 U.S. at 587-88. Similarly, most circuit courts have followed Daubert in observing that a stringent admissibility test is inconsistent with the "permissive backdrop" of the Federal Rules of Evidence.

B. Petitioners And Their amici Wrongly Act As If Daubert Held That Admissibility Depends Upon The Expert's Conclusions.

In arguing that the Eleventh Circuit misinterpreted Daubert, several of Petitioners' amici blatantly disregard the bright line this Court drew between a scientist's methodology--which should be considered in determining admissibility--and his conclusions--which should not be considered. They incorrectly assert that the methodology-conclusion distinction is "artificial" and has been rejected by "most courts." See, e.g., Brief Of The New England Journal Of Medicine at 16 (arguing that "any distinction between methodology and conclusions is artificial"); Brief Of The Dow Chemical Company at 16-17 (citing two cases for the proposition that "most cases applying Daubert have agreed that the distinction between methodology and conclusions upon which the Eleventh Circuit relied so heavily has only limited practical import"); Brief For The United States at 26 (asserting Daubert "mandated" that trial judges determine the "analytical gap" between an expert's "conclusions and the scientific materials on which they purportedly relied"); Brief Of Chemical Manufacturers Association at 15, 17 (stating that under Rule 702 a court may focus on methodology and the "conclusions themselves"). amici's arguments are contrary to the admonition by this Court--and the holdings of most circuit courts--that the "focus" of the reliability assessment be "solely on principles and methodology, not on the conclusions that they generate." Daubert, 509 U.S. at 596.

The trial judge's assessment of an expert's methodology should be no more complex than asking whether the way in which the expert went about reaching his conclusion--his reasoning, his analytical approach--is grounded in sound scientific principles. Neither Rule 702 nor Daubert permit a trial judge to exclude expert testimony simply because the expert's opinion--or even his approach--is not "generally accepted." Moreover, as long as the methodology employed by the expert is scientifically valid, claims that the expert made errors in applying the methodology and thereby reached the wrong conclusion simply go to the weight of the testimony. As Judge Becker observed in In re Paoli: "[T]he judge should not exclude evidence simply because he or she thinks there is a flaw in the expert's investigative process which renders the expert's conclusions incorrect." 35 F.3d at 746.

In Daubert, this Court drew a sharp distinction between methodology and conclusion, recognizing that an admissibility rule that permits or directs trial judges to determine the flaws in or the correctness of an expert's conclusions would unavoidably intrude upon the "ageless role of the jury." McCullock, 61 F.3d at 1045. When a court rejects scientific testimony on the grounds that an expert's methodology is inconsistent with the conclusions of most other experts, or because the judge perceives that the "analytical gap" between the expert's reasoning and his conclusions is "too wide," the judge is rendering a decision based on his perceived strength of the testimony. While consideration of the strength of the proffered testimony may be appropriate in the context of deciding motions for summary judgment or directed verdict, such an assessment of the evidence is not proper in the context of ruling on admissibility. As the Eleventh Circuit properly observed, the "gatekeeping" role is "not intended to turn judges into jurors" or to require them to "weigh or choose between conflicting scientific opinions." Joiner, 78 F.3d at 530.

Allowing trial judges to determine the accuracy of an expert's scientific conclusions would have the additional and unfortunate consequence of turning judges into "amateur" or "surrogate" scientists. Daubert, 509 U.S. at 600 (partial dissent by Chief Justice Rehnquist); Joiner, 78 F.3d at 530. The courtroom is, of course, not a laboratory, and judges are neither trained nor authorized to make "scientific" conclusions. As much as some scientific and medical organizations wish to infuse all federal judges with scientists' sensibilities and priorities, it is neither feasible nor desirable. For example, amicus The New England Journal of Medicine states that the task of the Journal's executive editor, Marsha Angell, M.D., in deciding "what medical research studies are admitted into the scientific literature," is "analogous" to the gatekeeping role performed by trial judges in determining the admissibility of scientific evidence. Brief Of The New England Journal Of Medicine at 2-3. With all due respect to Dr. Angell and her colleagues, their job bears no meaningful resemblance to the responsibility of a federal trial judge in deciding whether a sick or injured plaintiff will be permitted to present his or her claims to a jury. Unlike the deliberative scientific process and the political and bureaucratic system of journal publication, the universe in which trial judges, lawyers and litigants operate involves human beings with immediate problems, statutes of limitation, unique burdens of proof, and separate roles for judges and juries. Moreover, when The New England Journal of Medicine rejects a study, the author is free to submit his work to another publication. Plaintiffs, of course, do not get a second bite of the apple. As imperfect as it may be, there is no place in the adversarial jury system for trial judges to take on the additional burden of being "amateur scientists."

C. Petitioners And Their amici Wrongly Act As If Daubert Established A Rigid And Definitive Checklist For Deciding Whether Expert Testimony Is Reliable.

Petitioners and their amici also ignore Daubert's direction that the district court's inquiry into the validity of a scientific expert's methodology is to be a "flexible one." Daubert, 509 U.S. at 593-94. Instead, they argue that scientific testimony must satisfy each of the four factors mentioned in Daubert's "general observations" about reliability--testability, publication/peer review, error rate and general acceptance--in order to be admissible. For example, Petitioners complain that the Eleventh Circuit erred in finding that "the extensive experience and specialized expertise of each of these experts augment the reliability of their reasoning and methodology," Joiner, 78 F.3d at 532 (emphasis added), because it considered "a factor not even listed by this Court in Daubert." Brief Of Petitioners at 46. See also, Brief Of The Pharmaceutical Research Manufacturers Of America at 7-8 (arguing that the "four factors" described in Daubert "must be applied with rigor to carry out Daubert's gatekeeping mandate properly.")

Far from "mandating" bright-line criteria for evaluating the reliability of expert scientific testimony, Daubert did "not presume to set out a definitive checklist or test." Daubert, 509 U.S. at 593-94. Although the Court clearly intended its "general observations" to be just that, and though most circuit courts have read the "observations" to be illustrative and not exhaustive or applicable in every factual situation, opponents of the admission of scientific evidence, such as Petitioners and their amici, repeatedly urge trial courts to exclude testimony that does not comply with the "Daubert factors."

In his partial dissent in Daubert, Chief Justice Rehnquist foresaw the potential for misunderstanding and misuse of the Court's "general observations": "General observations by this Court customarily carry great weight with lower federal courts, but the ones offered here suffer from the flaw common to most such observations--they are not applied to deciding whether particular testimony was or was not admissible, therefore they tend to be not only general, but vague and abstract." Daubert, 509 U.S. at 598. The Court should use this occasion to again "stress the flexibility" of the admissibility inquiry described in Daubert. Strict application of the Court's "general observations" would result in the heightened admissibility test advocated by Petitioners and their amici and would prevent reliable and relevant scientific evidence from being heard by juries.

D. Petitioners And Their amici Wrongly Act As If Daubert Authorized Trial Judges To Exclude Scientific Testimony From Evidence If They Find It Unpersuasive.

Finally, Petitioners and their amici disregard the distinction this Court drew in Daubert between the admissibility of evidence and its sufficiency. In so doing, they essentially act as if Daubert authorized trial judges to simply exclude scientific testimony from evidence if they find it unpersuasive. This Court in Daubert held precisely the opposite--finding the defendant "overly pessimistic about the capabilities of the jury and the adversary system generally." Daubert 509 U.S. at 595-96.

As a practical matter, the "conclusions" of scientific witnesses (at least in toxic tort cases) typically concern, directly or indirectly, whether a particular substance can and/or did cause a disease or adverse condition in one exposed to the substance. The question of causation is, unlike the admissibility issue, a matter of the "sufficiency" of the totality of a plaintiff's evidence. See, e.g., In re Joint Eastern and Southern District Asbestos Litigation, 52 F.3d at 1133 ("Unlike admissibility assessments, which involve decisions about individual pieces of evidence, sufficiency assessments entail a review of the sum total of a plaintiff's evidence").

In Asbestos Litigation, the Second Circuit emphasized the distinction between the trial court's role in "assessing the admissibility of scientific evidence in federal court as articulated by the Supreme Court in Daubert," and its consideration of the "sufficiency of scientific evidence" that bears on the factual issue of causation. 52 F.3d at 1131-32. The district court entered judgment as a matter of law in favor of the defendants following the jury's verdict that the plaintiff had died of colon cancer caused by asbestos exposure. The trial court based its ruling on its independent assessment of the plaintiff's evidence and expert testimony. Id. at 1130. The Second Circuit reversed, holding that the "district court overstepped the boundaries set forth in Daubert. It impermissibly crossed the line from assessing evidentiary reliability to usurping the role of the jury." Id. at 1131. In so ruling, the court pointed out:

"[A]dmissibility" and "sufficiency" of scientific evidence necessitate different inquires and involve different stakes. Admissibility entails a threshold inquiry over whether a certain piece of evidence ought to be admitted at trial. The Daubert opinion was primarily about admissibility. It focused on the district court's role in evaluating the methodology and the applicability of contested scientific evidence in admissibility decisions.

Id. at 1132. In contrast, the court's "sufficiency inquiry, which asks whether the collective weight of a litigant's evidence is adequate to present a jury question, lies further down the litigational road." Id.

This Court in Daubert emphasized that the reliability-relevance admissibility standard is not intended to replace such "traditional" devices for challenging the sufficiency of scientific evidence as cross-examination, the presentation of contrary evidence, and thoughtful instruction on the burden of proof. Daubert, 509 U.S. at 595-96. Petitioners and their amici would have trial judges assess the sufficiency of a plaintiff's scientific evidence, including the conclusions of her experts, during pre-trial admissibility hearings. Indeed, the argument of Petitioners and their amici boils down to the proposition that the expert testimony offered by the plaintiffs in the underlying action consists of "absurd and irrational pseudoscientific assertions" because they are based on an insufficient number of animal studies and wrong-headed conclusions by the experts. Even if that argument were correct, this Court in Daubert held that it is for the jury and the adversary system, not the trial judge, to make such a determination. Moreover, if the "scintilla" of evidence introduced by the plaintiffs is really insufficient, directed verdict or summary judgment may be proper, but "wholesale exclusion" under Rule 702 is not. Daubert, 509 U.S. at 596.

IV. This Court Should Re-emphasize That the Federal Rules "Relaxed" the Standard for the Admissibility of Expert Scientific Testimony and That the Trial Judge's Gatekeeping Role Is a Limited One.

To achieve judicial uniformity in admitting scientific expert testimony, and to avoid the inappropriate exclusion of reliable and relevant testimony, the Court should re-emphasize the limited nature of the trial court's gatekeeping function articulated in Daubert. Despite the seemingly clear message of Daubert, Petitioners and their amici offer a distorted version of the reliability-relevancy admissibility test that would permit, if not obligate, trial judges to dispose of entire litigations in the context of what is supposed to be "a preliminary assessment" of the admissibility of scientific evidence. In effect, Petitioners and their amici urge adoption of a heightened standard for the admissibility of expert scientific testimony that would provide unprecedented litigation protection for manufacturers and distributors of pharmaceuticals, medical devices and toxic chemicals. Indeed, they promote a drastic revision of the Federal Rules of Evidence, the Federal Rules of Civil Procedure, and the historical (and constitutionally mandated) relationship between judge and jury.

Moreover, as the proceedings below and numerous other district court cases illustrate, the approach suggested by Petitioners and amici would convert simple admissibility hearings--held either prior to trial or during trial as testimony is introduced--into elaborate and expensive bench mini-trials. Neither the Federal Rules nor this Court in Daubert intended or foresaw that, in order for a plaintiff to present her case to a jury, she would first have prove her case to a judge through presentation of all of her scientific evidence and expert testimony. Neither the Federal Rules nor this Court in Daubert anticipated that trial judges would use such proceedings to render findings on the conclusions of the experts and the sufficiency of a plaintiff's evidence. Neither the Federal Rules nor this Court in Daubert contemplated that threshold admissibility hearings would evolve into summary judgment-like hearings during which the procedural protections typically afforded to plaintiffs in actual summary judgment proceedings are ignored. Neither the Federal Rules nor this Court intended that admissibility hearings under Daubert would become so time-consuming and expensive--essentially requiring two trials--that sick and injured citizens would face new barriers to the courthouse. Under such a regime, individual plaintiffs could not hope to compete with the wealthy institutions and corporations on the other side.

The heightened scrutiny of proffered expert scientific testimony proposed by Petitioners and their amici would allow judges to substitute their judgment for a jury's in the guise of evaluating each microscopic step of a scientist's analysis. Such a process is contrary to Rule 702 and this Court's holding in Daubert, as well as to the constitutionally protected right to a jury trial. That being so, we respectfully submit that, whatever standard of review the Court finds applicable in this case, the Court should re-emphasize that the Federal Rules "relaxed" the standard for the admissibility of expert scientific testimony and that the trial judge's gatekeeping role is a limited one.

Conclusion

The judgment of the United States Court of Appeals for the Eleventh Circuit should be affirmed.

Respectfully submitted,

Steven E. Fineman
Counsel of Record
Weitz & Luxenberg, P.C.
180 Maiden Lane
New York, NY 10038
(212) 558-5500

Arthur H. Bryant
Trial Lawyers for Public Justice, P.C.
1717 Massachusetts Ave., N.W.
Suite 800
Washington, D.C. 20036
(202) 797-8600

Attorneys for Amicus Curiae