Daubert v. Merrell Dow Pharmaceuticals

Summary: Atlantic Legal played a pivotal role in Daubert v. Merrell Dow Pharmaceuticals, the case that definitively set the evidentiary standard for expert scientific testimony in federal court.

Daubert began as a typical toxic tort case. Two boys, Jason Daubert and Eric Schuller, were born with serious defects after their mothers took the anti-nausea drug Bendectin while pregnant. When the boys sued Merrell Dow, the manufacturer of Bendectin, alleging that the drug caused their defects, they became part of a lengthy line of similar plaintiffs making similar allegations: During the 1980s, there were upwards of 1700 suits claiming that Bendectin had caused birth defects in the children of mothers who took the drug while pregnant. The case became noteworthy, however, when disputes over the admissibility of expert testimony landed the case in the United States Supreme Court.

There is no epidemiological evidence to support the theory that Bendectin causes birth defects. The plaintiffs did not attempt to counter this fact, but instead sought to offer alternative forms of "proof" that Bendectin actually does cause defects. These "proofs" took the form of test tube and live animal studies, re-interpretations of existing data on Bendectin, and analyses of how Bendectin is chemically similar to drugs that are known to cause birth defects. The district court ruled that this data was not admissible. Drawing on the Frye standard for evaluating the validity of expert testimony, the court rejected the re-interpretations of Bendectin data because they had been prepared expressly for the case and had not been peer reviewed, and rejected the other studies because they attempted to make epidemiological claims in the absence of epidemiological data. Summary judgment was granted to Merrell Dow.

The 9th Circuit affirmed the district court’s decision to exclude the studies that formed the basis of the plaintiffs’ case.

The Supreme Court agreed to hear Daubert because it recognized the necessity of clarifying the proper criteria for admissibility of expert testimony. At issue was whether the adoption of Federal Rules of Evidence trumped the Frye standard that was so decisive in this case, and whether Rule 702, which addresses the issue of scientific evidence, supersedes Frye.

Atlantic Legal filed an amicus brief on behalf of a number of prominent scientists, scholars, and teachers of science, with the express intention of seeking to shape the Supreme Court’s views as to the appropriate criteria for acceptable scientific evidence. As a secondary goal, Atlantic Legal sought to respond to misconceptions pervading a number of briefs filed in support of the petitioners. In particular, we aimed to distinguish clearly between how science and the law pursue truth; without such clarification, we were concerned that the Court’s judgment–and the precedent that judgment sets–could be profoundly misguided.

The Court found that the Federal Rules of Evidence do indeed trump Frye. In an opinion that closely followed the reasoning of Atlantic Legal’s brief, the Court explained that Rule 702’s stipulation that expert testimony must be "scientific … knowledge" is closely grounded in an assumption that such "knowledge" is distinct from speculation, and can only be derived from proper scientific methods and procedures. The Court went on to dismantle the misguided briefs filed on behalf of petitioners, drawing extensively on Atlantic Legal’s explanation of why and how those briefs had confounded the difference between how science and the law assess and pursue truth.

Thanks to Atlantic Legal’s decisively reasoned analysis, the criteria for admitting expert testimony have been definitively clarified.

Since Daubert was decided, it has become the standard for toxic tort cases across the nation, allowing courts to determine with far more precision than before when expert evidence is valid and when it is not. As Atlantic Legal’s own case archive demonstrates, Daubert has been a crucial case for ensuring that judges do not allow junk science, and particularly junk medicine, into their courtrooms. In General Electric v. Joiner, 522 U.S. 136, (1997), Moore v. Ashland Chemical, 151 F.3d 269 (1998), Canavan v. Brigham and Women’s Hospital, 48 Mass. App. Ct. 297 (1999), and others, we can trace the lasting impact of Daubert and the pivotal importance of Atlantic Legal’s brief in that case.

Atlantic Legal’s significant impact in the Daubert case is evidenced by the fact that it is cited and quoted in the Supreme Court majority opinion.

Atlantic Legal played a pivotal role in Daubert v. Merrell Dow Pharmaceuticals, the case that definitively set the evidentiary standard for expert scientific testimony in federal court.

Click here to view our brief
Click here to view the decision
Filed: 2000-01-01
Decided: 2005-12-20