Attorney abuses of Daubert hearings: junk science, junk law, or just plain obstruction?

The U.S. Supreme Court case of Daubert v. MerrellDow Pharmaceuticals focused attention on the problem of “junk science” testimony in the courtroom, a decision that led to the emergence of the Daubert hearing as a pre-trial screening device for determining the reliability and relevance of expert testimony. Similar to other useful legal procedural safeguards of due process, alas, the Daubert hearing can be misused, as well as properly used, by attorneys bent on advocacy. Daubert v. Merrell Dow Pharmaceuticals and its successors, so-called progeny, General Electric v. Joiner and Kumho Tire v. Carmichael, theoretically represented attempts by the judiciary, among other goals, to raise the level of expert testimony available to the legal system and to decrease the perceived problem of “junk science” testimony—a problem that was expected to increase as the complexity and specialization of science also increased. Junk science could be generally defined as scientific testimony based on idiosyncratic, invalid, or unreliable science, in which the methodologies used are not generally accepted by the relevant scientific community. Considered in concert with the Federal Rules of Evidence, especially rules 702 to 705, these cases as a group constitute, in one respect, an ambitious and promising attempt to define and clarify the roles of expert witnesses, the limits and bases of expert testimony, the admissibility of the evidence on which experts rely, and similar matters. However, in practice, as attorneys and courts have become more familiar with the post-Daubert landscape, we have begun to see misuses as well as appropriate uses of this ruling.