A hat-tip to noted Kentucky trial lawyer, John L. Tate, whose article in the October 2016 issue of Law Journal Newsletters’ “Product Liability Law & Strategy” newsletter is titled, “Do Daubert Motions Really Work?”1 Tate, a member of that newsletter’s Board of Editors, reports on the results of two sizable studies gauging the relative effectiveness of Daubert motions challenging the reliability of proffered experts. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, was the 1993 decision by the U.S. Supreme Court that ushered in a robust era of judicial “gatekeeping” and required that scientific expert testimony had to be “not only relevant but reliable.”
Then, in 1997, the Supreme Court issued its decision in General Electric Co. v. Joiner, 522 U.S. 136, 143 (1997), holding that a district court could exclude opinion evidence “that is connected to existing data only by the ipse dixit of the expert.” (Ipse dixit refers to an assertion made but not proved). Thus, when there is “too great an analytical gap between the data and the opinion proffered,” the court may exclude the opinion. Joiner, 522 U.S. at 146. In the decision in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999), two years later, the Supreme Court confirmed that the judicial gatekeeping obligation applied not only to testimony based on scientific knowledge but also to testimony involving technical and other specialized knowledge. Reliability of the expert’s methodology was a key. And, in Weisgram v. Marley Co., 528 U.S. 440, 442 (2000), the Supreme Court said that expert evidence must meet “exacting standards of reliability.” Federal Evidence Rule 702 changes and the Advisory Committee note reflect these rulings.2
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