Academic

Jurs on Daubert & Cutting Edge Science

By Lawrence Solum

Andrew W. Jurs (Wake Forest University School of Law) has posted Judicial Analysis of Complex & Cutting-Edge Science in the Daubert Era: Epidemiologic Risk Assessment as a Test Case for Reform Strategies (Connecticut Law Review, Vol. 42, No. 1, 2009) on SSRN. Here is the abstract:

Since Daubert, courts have faced difficulty with screening cutting-edge scientific evidence for relevance and reliability under Federal Rule of Evidence 702. In a series of cases following Daubert, courts faced the challenge of particularly complex epidemiologic studies. In addition to inconsistently handling the epidemiologic evidence in their Daubert reviews, the judicial analysis of this science exposed other weaknesses of the Daubert system. Weaknesses of the Daubert regime include: weak judicial training in scientific principles and statistical information, oversimplification with bright line tests, outlier enhancement of experts outside the mainstream of their field, and the incompatibility of the judicial procedure with science. Each identified issue presents a reason why a judge may inconsistently or inaccurately evaluate difficult scientific principles.

To address these identified weaknesses, this article seeks modifications to the current system. One way to bring more science back into the courthouse, or to the judge?s chambers, is to permit the appointment of a science consultant under a modified Federal Rule of Evidence 706. For an even smaller subset of more complicated cases, advanced science procedures are needed. A science panel approach, using a modified arbitration panel format, or a centralized court of scientific jurisdiction would offer significant advantages to the current Daubert system. Other discrete individual reforms solve other weaknesses in current Daubert analysis.

By critically examining the breakdown of Daubert in the face of epidemiologic risk evidence, evaluating the nature of the weaknesses in the system, and creating reforms structured to respond to those concerns, we can modify the current Daubert system to allow judges to more consistently, accurately and efficiently handle the most complex, cutting-edge science presented in litigation.

Full post as published by Legal Theory Blog on May 04, 2009 (boomark / email).