Finding the Golden Mean with Daubert: An Elusive, Perhaps Impossible, Goal

Abstract

The essay is largely comprised of a series of thought experiments. The first two thought experiments arose in cases I tried before "junk science" became a widely used label and before Daubert was decided. They represent an often unexamined subset of expert evidence cases involving simple expertise, one of which seems remarkably hard to resolve to achieve the admissibility result that I believe is intuitively appropriate. They also provide an opportunity to suggest how Daubert analysis might impact moderately innovative litigants with limited funds. The third experiment, which is the most generally applicable, involves a critique of Kumho Tire, one of the decisions in the Daubert Trilogy, a decision that I believe may have been affected by the Supreme Court's arguably misguided assumption about the implausibility of the merits of the expert's conclusion. The final thought experiment is one that I keenly experienced while consulting on the admissibility of expert evidence in civil litigation. The case was initially governed by a standard different and less exacting than Daubert; it then shifted mid-process into full Daubert mode. Its message reflects the uncertainty of the standards that govern specific types of expertise, the resulting unpredictability about the trial court's choice of standards to apply. It suggests that either the standards should be clarified or the rigor of enforcement of unclear and unpredictable standards should be moderated.

This essay concludes with the themes of the successful intersection of law, science and expertise: the importance of focusing on application rather than abstraction, and a willingness to embrace complication rather than insisting upon stark, abstract and neat solutions to problems in this area.

In seeking the "golden mean," the article perhaps asks too much because that concept connotes simultaneously simplicity, moderation and perfection, which are expectations that only very rarely can be achieved by humans. The argument of the essay is more attainable. It moves toward a more modest and moderate approach to judging the admissibility of expert testimony, which far short of, but is on the way to, the idealized and elusive goal of the golden mean.