This note appearing in JNREL Vol. 21 No.2 was written by former staff member Michael Marsch and confronts the Daubert threshold inquiry in the context of toxic torts that affect farmers' livestock. Staff member Derek Leslie wrote the following abstract.
The Daubert threshold inquiry acts as the vehicle through which many courts address the principles behind the Federal Rule of Evidence 702, which requires that for expert testimony to be admitted, (1) the testimony must assist the trier of fact, and (2) the expert must be qualified to offer such testimony. The U.S. Supreme Court elaborated upon these principles by developing what is now known as the Daubert threshold inquiry. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The inquiry takes the shape of pre-trial motions in limine, where one party attempts to discredit and thus exclude the testimony of the other side's expert witness. The court, when considering whether scientific evidence is to be admitted, considers "(1) whether a theory or technique can be or has been tested; (2) whether it has been subjected to peer review and publication; (3) whether a technique has a high known or potential rate of error and whether there are standards controlling its operation; and (4) whether the theory or technique enjoys general acceptance within a relevant scientific community." Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001) (citing Daubert, 509 U.S. at 592-94).
Unfortunately, the Daubert threshold inquiry actually heightens the standard required by FRE 702. Where FRE 702 essentially required that the expert be qualified and that her methodology be reliable, the Daubert threshold inquiry's fourth prong, general acceptance, requires more: that the science behind the testimony has wider acceptance in the scientific community. While it may sound innocent enough, it runs contrary to the evolving nature of science, and effectively closes the door on innovative and novel scientific techniques and evidence, despite its use by a qualified expert using a reliable methodology. Moreover, the inquiry relies upon the judge, who is in no better position than the jury to weigh the merits of competing scientific assessments, to sort out these difficult scientific questions.
In the cases involving toxic torts affecting farmers' livestock, the Daubert threshold inquiry often invites the exclusion of veterinarian testimony, effectively precluding the plaintiff-farmer from making his case to the jury. In these cases, courts often apply the Daubert threshold inquiry with respect to the conclusions rather than the methodology of the expert witness. The central premise of the plaintiff-farmer's case, causation, is left unsupported without an expert witness to expound that theory.
Because the Daubert inquiry invites misapplication, and tempts judges to decide factual questions about causation, it should be abandoned. The alternative, obviously, is to rely on FRE 702 itself. If a qualified witness' testimony will assist the trier of fact in coming to a determination, the witness should be allowed to testify in front of a jury. Of course, this also permits the other party to present their own qualified expert witnesses with their own conclusions, leaving the jury to resolve the problem of which parties' expert came to the sounder scientific conclusion. Here, in the case of toxic torts affecting livestock, the plaintiff-farmer would at least be able to present his argument with respect to causation. This approach simplifies the issues surrounding expert testimony, and results, ultimately, in a fairer trial.