Amicus Curiae Brief — General Electric Co. v. Joiner

Nos. 96-188

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

GENERAL ELECTRIC COMPANY, ET AL.,

Petitioners,

v.

ROBERT K. JOINER, ET AL..

Respondents.

On Writ Of Certiorari To The

United States Court Of Appeals

For the Eleventh Circuit

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

AND AMICUS CURIAE BRIEF OF

THE ASSOCIATION OF TRIAL LAWYERS OF AMERICA

IN SUPPORT OF THE RESPONDENTS

RICHARD D. HAILEY, EsQ. JEFFREY ROBERT WHITE, Eso.*

1050 31st St., N.W. 1050 31st. St., N.W.

Washington, DC 20007 Washington, DC 20007

(202) 965-3500 (202) 965-3500

President, The Association Attorney for Amicus Curiae

of Trial Lawyers of America *Counsel of Record

) BEST AVAILABLE COPY’ Mamma

Supreme Court of the United States

OCTOBER TERM, 1996

No, 96-188

GENERAL ELECTRIC COMPANY » ETAL.,

Petitioners,

v.

ROBERT K. JOINER, ET AL.,

Respondents.

On Writ Of Certiorari To The

United States Court Of Appeals

For the Eleventh Circuit

MOTION OF

ASSOCIATION OF TRIAL LAWYERS OF AMERICA

FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE

Pursuant to Rule 37.3(b) of the Rules of this Court, the

Association of Trial Lawyers of America (“ATLA”)

respectfully moves this Court for leave to file the

accompanying brief as amicus curiae. Petitioner, through

counsel, has consented to the filing of this brief, Respondent

has denied consent.

ATLA is a national voluntary bar association whose

approximately 50,000 members primarily represent injured

plaintiffs in civil actions, and defendants in criminal

prosecutions. Due to the increasing importance of scientific

evidence in our justice system, trial lawyers regularly face the

2

issue of admissibility of scientific expert testimony. At the

same time, ATLA has committed itself to the preservation of

the right to trial by jury guaranteed by the Constitution.

ATLA participated as an amicus curiae in the case of

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

(1993), where the Court set forth standards of admissibility of

scientific evidence. In this case, where the Court is presented

with the question of the standard of appellate review of such

ATLA believes that the accompanying brief amicus

curiae will assist the Court in addressing this issue. The

impact of the Court’s decision in this case will clearly extend

far beyond the parties themselves. ATLA is particularly

concerned that appellate review of rulings excluding expert

testimony be sufficiently rigorous to safeguard litigants’ right

to trial by jury. ATLA has undertaken extensive reasearch

into the history and current performance of the jury system

and brings a broader perspective to this issue than that of the

parties.

For these reasons, the Association of Trial Lawyers of

America respectfully moves the Court for leave to file the

accompanying brief in this case as amicus curiae.

Respectfully submitted,

Jeffrey R. White

Association of Trial Lawyers

of America

1050 31st Street, N.W.

Washington, D.C. 20007

(202) 965-3500

Attorney for Amicus Curiae

July 29, 1997

Supreme Court of the United States

ROBERT K. JOINER, ET AL.,

Respondents.

On Writ Of Certiorari To The

United States Court Of Appeals

For the Eleventh Circuit

AMICUS CURIAE BRIEF OF

THE ASSOCIATION OF TRIAL LAWYERS OF AMERICA

IN SUPPORT OF THE RESPONDENTS

|

TABLE OF CONTENTS

TABLE OF AUTHORITIES 2000000000 occccctcteeeeeees iil

IDENTITY AND INTEREST OF AMICUS CURIAE........... |

SUMMARY OF THE ARGUMENT ..0000. 2

TET ES TT LO 3

Opinion, But the Weight and Credibility of the

Expert’s Conclusions Are Matters for the Jury................... 5

1. Appellate Courts Have Distinguished

Methodology From Conclusion in Defining the

Proper Roles of Judige atid Fury. .............0.c00ccccvceveeveeeeveerevvens 5

2. This Court's Decision in Daubert Reaffirmed

the Methodology/Conclusion Distinction Under Rule

Distinction Under an

Constitutional Role of the Jury. ..................-...-c<ee--<e--00- 17

IL FEARS OF JURY INCOMPETENCE TO

ASSESS THE WEIGHT AND CREDIBILITY OF

EXPERT TESTIMONY ARE UNFOUNDED................... 22

COSCC ATION +....cs..cnsck...ods..de.clell..adi.. ne 25

TABLE OF AUTHORITIES

Cases

Ambrosini v. Labarraque, 101 F.3d 129 (D.C. Cir. 1996) . 9, 20

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ............ 4

Barefoot v. Estelle, 463 U.S. 880 (1983)...................000-. 5, 22

Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988) ....... 8,15

Brotherhood of Railway Trainmen v. Virginia ex rel.

Virginia State Bar, 377 U.S. 1 (1964) ...............0..0c.cccccecceeee. 17

Browning-Ferris, Indus. v. Kelco, 492 U.S. 257 (1989)........ 20

Cella v. United States, 998 F.2d 418 (7th Cir. 1993)............... 7

Christophersen v. Allied-Signal Corp., 939 F.2d 1106

, Ee het et atta, 5. ctiascteeeibe) 6

Crane v. Morris’ Lessee, 31 U.S. 610 (1834) ......0.....0..ccce 4

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

SIGIR, Adachi disk eb sess... passim

Dimick v. Schiedt, 293 U.S. 474 (1953) ....c...ccccsessvessessseesveee 20

Evans v. Eaton, 16 U.S. 454 (1818)... ccccccseccsseecseeeeseeee 4

Ferebee v. Chevron Chemical Co., 736 F.2d 1529

I ha ER sts ies ABD. cd cicsiccesccinns 6

Fierro v. Gomez, 865 F. Supp. 1387 (N_D. Cal. 1994) .......... 10

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)................ 5

Grand Chute v. Winegar, 82 U.S. 373, 375 (1872) ............... 20

Granfinanciera S.A. v. Nordberg, 492 U.S. 33 (1989) .......... 18

Hamiling v. United States, 418 U.S. 87 (1974) ...................... 11

Hines v. Consolidated Rail Corp., 926 F.2d 262

ne a en Sc nconeaassencose 6

Ibn-Tamas v. United States, 407 A.2d 626 (D.C. 1979).......... 8

Iv

In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717

a ea a re 10

In re Swine Flu Immunization Product Liability

Litigation, 533 F. Supp. 567 (D. Colo. 1980).......................-. 7

Knight v. Otis Elevator Co., 596 F.2d 84 (3d Cir. 1979) ....... 17

Lind v. Schenley Indus., Inc., 278 F.2d 79 (3d Cir.)........-..-++: 21

Logan v. Zimmerman Brush Co., 455 US. 422 (1982).......... 16

Lyon v. Mutual Benefit Assoc., 305 U.S. 484 (1939)............. 20

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).............. 16

Missouri Pacific Ry. Co. v. Humes, 115 U.S. 512 (1885)...... 16

Osburn v. Anchor Laboratories, Inc., 825 F.2d 908

CSE, FE eevee cestetiiieeperendierenendit 6

Oxendine v. Merrell Dow Pharmaceuticals, Inc.,

S06 ADs 10GD Gi FO anc ocpdeornnstntotereertdo-e-et 8

Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322 (1979) ....21

Patrick v. South Central Bell Tel. Co., 641 F.2d 1192

LS ee a 7

Peteet v. Dow Chem. Co., 868 F.2d 1428 (Sth Cir. 1989)........ 6

Rock v. Arkansas, 483 U.S. 44 (1987) .........c.cccccsscesceeeenseereess 15

Rubanick v. Witco Chem. Co., 593 A.2d 733 (N.J. 1991)........ 8

Termant v. Peoria & Pekin Union Ry.,

ee en 4

United States v. Bonds, 12 F.3d 540, 564 (6th Cir. 1993)........ 7

United Transportation Union v. State Bar of Michigan,

St GE, SI tents a ote 17

Constitutions, Statutes, and Rules

v

Fed. R. Civ, Pro. 3868) o........0.0.c.ccccccccccccccnscesesssnceesennvenesenves 18

Federal Rule of Evidence 702 00.0000... ....cccecccceseseseeeeee passim

Federal Rule of Evidence 803(6) ................ccccccccccccccseeseveeeeees 16

Federal Rule of Evidence 803(8) .0...............c.cccccccssecceeeseeeenees 16

Other Authorities

Berger, Margaret A., Procedural Paradigms For

Applying The Daubert Test, 78 Minn. L. Rev. 1345

CGR 2B! Ch. RO 16, 17

Cecil, Joe S., Valerie P. Hans, and Elizabeth C. Wiggins,

Citizen Comprehension of Difficult Issues: Lessons from

Civil Jury Trials, 40 Am. U. L. Rev. 728 (1991)........... 23, 24

Development in the Law, Confronting The New

Challenges Of Scientific Evidence, \08 Harv. L. Rev.

L481 CIGDO senses Lala? Jownomith. ih §, 12

Developments in the Law -- the Civil Jury: The Jury's

Capacity to Decide Complex Civil Cases, 110 Harv. L.

Diamond, Shari Seidman, and Jonathan D. Casper,

Blindfolding the Jury to Verdict Consequences, Damages,

gps ample Soc. Rev. 513

SUPE => ~~" ++ -inbanehatesbanstsansiassasansadabsessitastbsscissserccecccetnsocesesese 24

Edward J. Imwinkelried, The Daubert Decision: Frye Is

Dead, Long Live the Federal Rules of Evidence, 29 Trial

8 SE SELINIEESOE OE ee a aR OA 9

Faigman, David L., Elise Porter & Michael J. Saks, Check

Your Crystal Ball at the Courthouse Door, Please:

Exploring the Past, Understanding the Present, and

Worrying About the Future of Scientific Evidence, 15

Cardozo L. Rev. 1799 (1994)...........cccccsscsssossssesesessssssssssesve 12

vi

Giannelli, Paul C., The Admissibility of Novel Scientific

Evidence: Frye v. United States, a Half-Century Later, 80

UR FR) ) 0 GRRE y

Hans, Valerie P., {he Jury's Response to Business and

Corporate Wrongdoing, 52 Law & Contemp. Pbims. 177

CHUGPD «—«-_—i—é=*«sCnsedtnssctdscciigesanciape a Re allatd a acionovene 24

Henderson, Edith Guild, The Background of the Seventh

Amendment, 80 Harv. L. Rev. 289 (1966) ..............cccccccee. 18

Higginbotham, Patrick., Continuing the Dialogue: Civil

Juries and the Allocation of Judicial Power, 56 Texas L.

Jacobs, Michael S., Testing the Assumptions Underlying

the Debate Aboui Scientific Evidence: A Closer Look at

Juror “Incompetence” and Scientific “Objectivity,” 25

Came, 3.; Ran Eee Came scar trcsdihadetit ti ccdtitice ree scoeseccoenessee 22

Jay P. Kesan, An Autopsy of Scientific Evidence in a

Post-Daubert World, 84 Geo. L.J. 1985 (1996)..................... 12

Landsman, Stephan, The Civil Jury In America: Scenes

From an Unappreciated History, 44 Hastings L.J.579 .

COORD .... derenmsteinneatteneeeieee eine 18

Lempert, Richard, Civil Juries and Complex Cases, in

VERDICT: ASSESSING THE CIVIL JURY SYSTEM (R. Litan

| Ee, te OE) Fae a EE BES BEETS. 23

Morgan, Suggested Remedy for Obstructions to Expert

Testimony by Rules of Evidence, 10 U. Chi. L. Rev. 285

rr SOS... 14

Pound, Roscoe, THE DEVELOPMENT OF CONSTITUTIONAL

GUARANTEES OF LIBERTY (1957) .0......000.cc0.ccccecseseeedesceeseceees 18

Rheingold, Paul, The Basis of Medical Testimony, 15

Vand 1... Babu Cee ctsest bt tetens meveiearecetinamnseetliscced yes. 14

Roisman, Anthony Z., Conflict Resolution In The Courts:

The Role Of Science, \5 Cardozo L. Rev. 1945 (1994)......... 24

vii

Rules of Evidence, Hearings Before the Special Subcom.

on Reform of Federal Criminal Laws of the House Comm.

on the Judiciary, 93d Cong., Ist Sess. (1973) ...........00000000000.. 15

Scheiner, Alan Howard, Judicial Assessment of Punitive

Damages, the Seventh Amendment, and the Politics of

Jury Power, 91 Colum. L. Rev. 142 (1991) ..0...0.0.....ccc. 19

Story, Joseph, COMMENTARIES ON THE CONSTITUTION OF

THE UNITED STATES (R. Rotunda & J. Nowak eds. 1987)...... 18

THE COMPLETE ANTI-FEDERALIST 49 (An Old Whig)............ 19

Vidmar, Neil, MEDICAL MALPRACTICE AND THE

AMERICAN JURY: CONFRONTING THE MYTHS ABOUT JURY

INCOMPETENCE, DEEP POCKETS, AND OUTRAGEOUS

FT RE ET TT CE eT 23

Weinstein, Jack B., Improving Expert Testimony, 20 U.

En a Se 5, 15

Wigmore, John H., Evidence (1940).........0..0...0...0.0ccccccceee 14

Wigmore , John H., Evidence in Trials at Common Law

a encessene 5

Wolfram, Charles, The Constitutional History of the

Seventh Amendment, 57 Minn. L. Rev. 639 (1973)................. 18

IN THE

Supreme Court of the United States

ROBERT K. JOINER, ET AL.,

On Writ Of Certiorari To The

United States Court Of Appeals

For the Eleventh Circuit

AMICUS CURIAE BRIEF OF

THE ASSOCIATION OF TRIAL LAWYERS OF AMERICA

IN SUPPORT OF THE RESPONDENTS

IDENTITY AND INTEREST OF AMICUS CURIAE

The Association of Trial Lawyers of America [“ATLA”]

is a voluntary national bar association whose 50,000 members

A motion for leave to file this brief of amicus curiea has

been filed with this Court.'

! Pursuant to Rule 37.6, Amicus discloses that no counsel for a party

authored any part of this brief, nor did any person or entity other than

2

The question presented to the Court in this case is of

This Court has assigned the role of “gatekeeper” to district

courts in cases involving scientific evidence. Because that role

necessarily requires judges to determine whether litigants may

present crucial scientific evidence to the jury, appellate courts

must be able to preserve the role of the jury against

overreaching by trial judges.

SUMMARY OF THE ARGUMENT

I. The role of evaluating the credibility and weight of

testimony, including that of expert witnesses, is allocated to

protected the jury’s role when reviewing trial court decisions

In the context of scientific testimony, courts determining

admissibility have examined the methodology underlying an

expert’s testimony for reliability. It is for the jury, however, to

decide whether the conclusions based on satisfactory

methodologies are credible or entitled to weight. The Court’s

decision in Daubert preserved the methodology/conclusion

distinction as the boundary between the roles of judge and

jury.

In this case, the trial judge crossed that boundary. The

court excluded the testimony of plaintiffs’ experts, not based

on assessment of the validity of their underlying methodology

or procedures, but because the court did not believe the

conclusions drawn by the experts. Reversal by the court of

was an appropriate exercise of “abuse of discretion”

amicus curiae, its members, or its counsel make a monetary contribution

to the preparation or submission of this brief.

a lack of confidence in the ability to jurors. Empirical studies,

however, demonstrate that these fears are unfounded and that

jurors evaluate the weight and credibility of scientific evidence

as rationally as judges.

4

ARGUMENT

¥ REVERSAL OF THE DISTRICT COURT’S

XCLUSION OF EXPERT TESTIMONY WAS AN

APPROPRIATE APPLICATION OF THE ABUSE OF

DISCRETION STANDARD.

A. Appellate Courts Have Traditionally Protected the

Role of the Jury to Assess the Weight and Credibility

of Witnesses.

One of the few bright lines in American jurisprudence

recognizes that courts decide issues of law, while issues of

fact are reserved for the jury. From the earliest American

cases, the jury’s responsibility as factfinder has included the

assessment of the weight and credibility of the testimony of

witnesses. Appellate courts did not hesitate to reverse

exclusions of witnesses that trammelled on this domain of the

jury. See, e.g., Evans v. Eaton, 16 U.S. 454, 505 (1818);

Crane v. Morris’ Lessee, 31 U.S. 610, 620-21 (1834).

It is the jury, not the court, which is the factfinding body.

It weighs the contradictory evidence and inferences,

judges the credibility of witnesses, receives expert

instructions and draws the ultimate conclusion as to the

facts. . . Its function is to select among conflicting

Tennant v. Peoria & Pekin Union Ry., 321 U.S. 29, 35

(1944). See also Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986)(“Credibility determinations, the weighing of

the evidence, and the drawing of legitimate inferences from

the facts are jury functions, not those of the judge.”).

When the witness is proffered as an expert, judges have

traditionally ruled on admissibility, reserving to the jury the

task of evaluating the testimony’s credibility and weight. See

9 John H. Wigmore , EVIDENCE IN TRIALS AT COMMON LAW

§§ 2549 & 2550, at 639-40 (Chadbourn rev. 1981). See also,

Development in the Law, The New Challenges

Of Scientific Evidence, 108 Harv. L. Rev. 1481, 1510-11

another’s.” Barefoot v. Estelle, 463 U.S. 880, 902 (1983).

B. Courts Properly Evaluate the Reliability of the

6

whether they should be given great or little weight was for the

jury to decide.

The methodology/conclusion distinction has been applied

by courts in a variety of circumstances to preserve the jury’s

role. For example, in Ferebee v. Chevron Chemical Co., 736

F.2d 1529 (D.C. Cir. 1984), where experts of opposing

parties relied on essentially the same diagnostic methodology,

but differed on the conclusions they drew from test results

and other information, the court recognized that it was for the

jury to determine which was more credible.

The court in Hines v. Consolidated Rail Corp., 926 F.2d

262, 274 (3d Cir. 1991) ruled expert testimony admissible,

stating that “though the expert's opinion could be considered

Osburn v. Anchor Laboratories, Inc., 825 F.2d 908, 915 (Sth

Cir. 1987). See also Peteet v. Dow Chemical Co., 868 F.2d

1428, 1433 (Sth Cir. 1989)(As

methodology is well-founded, the

i os

controversial or

Christophersen v.

long

nature

7

conclusion, the witness used a well-founded methodology or

mode of reasoning.” In such a case, the “jury must be allowed

to make credibility determinations and weigh the conflicting

evidence.”

In United States v. Bonds, 12 F.3d 540, 564 (6th Cir.

1993), the court ruled that a method of estimating DNA

matches was admissible. Defendant’s objection that the study

did not account for ethnic substructuring was “a dispute over

the accuracy of the probability results” that went to the

weight of the evidence rather than to its admissibility. See

also Patrick v. South Central Beil Tel. Co., 641 F.2d 1192,

1197 (6th Cir. 1980)(where opposing experts disagreed as to

Similarly, the court in Cella v. United States, 998 F.2d 418,

426 (7th Cir. 1993), stated that “[aJithough the expert’s

As the District of Columbia Court had occasion to explain,

Ibn-Tamas v. United States, 407 A.2d 626, 639 (D.C. 1979).

Where opposing experts disagree as to how epidemiological

and other data should be interpreted it is for the jury to decide

the issue. Oxendine v. Merrell Dow Pharmaceuticals, Inc.,

506 A2d 1100, 1110 (D.C. 1986). See also Rubanick v.

Witco Chem. Co., 593 A2d 733, 747-48 (NJ. 1991)

Evidence, 29 Trial 60, 64 (Sept. 1993).

Finally, the Court made it unmistakably clear that their

The inquiry envisioned by Rule 702 is, we emphasize, a

flexible ome. Its overarching subject is the sciercific

of the principles that underlie a proposed submission. The

focus, of course, must be solely on principles and

methodology, not on the conclusions that they generate.

$09 U.S. at 594-95 (emphasis added).

Federal courts have correctly viewed Daubert as

Ambrosini vy. Labarraque, 101 F.3d 129 (D.C. Cir.

1996)(“Daubert instructs that the admissibility inquiry focuses

not on conclusions, but on approaches .. . “employ/ing)

scientifically valid methodologies.”). Questions of the

accuracy of scientific testing should “be addressed through

10

determination of the weight to be accorded the testimony,

rather than through the threshold determination of

admissibility.” Fierro v. Gomez, 865 F. Supp. 1387, 1395 n.7

(ND. Cal. 1994). Cf In re Paoli RR. Yard PCB Litigation,

35 F.3d 717, 746 (3d Cir. 1994)(“Plaintiffs are correct, of

Methodology/Conclusion Distinction Under an Abuse

1310, 1327 (ND. Ga. 1994)

Although the court of appeals gave a “hard look” under

its abuse of discretion standard, see 78 F.3d at 535 (Smith, J.,

11

864 F. Supp. at 1324, or that the epidemiological studies

“were conducted in a scientific manner”. Id. at 1326.

Defendants still persuade the court that Plaintiffs’ expert

testimony would not be admissible. Defendants do this by

attacking the conclusions that Plaintiffs’ experts draw

from the studies they cite.

864 F. Supp. at 1322 (emphasis added).

The trial judge proceeded to underscore the perceived

deficiencies in the studies relied upon by plaintiffs’ experts,

noting that there were only two animal studies and that some

findings could be characterized as preliminary. Further, the

judge pointed out that the epidemiological studies involved a

small number of subjects or were not statistically significant

or failed to control for certain variables. Jd. at 1323-26.?

These factors would have made for effective cross-

examination, refutation and rebuttal by defense counsel

arguing that the jury should give little or no weight to the

experts’ opinions. But they were not appropriate bases for the

judge to determine admissibility.

Petitioners expend a great deal of effort to establish that

courts generally apply the abuse of discretion or “manifestly

erroneous” standard to review decisions on the admissibility

of expert testimony. Pet. Br. at 22-23. However, many of the

decisions they set forth involve issues of relevancy or

the United States, 418

OS FT TOU OTA TS coceclo, Reseed on ndoreees: On

the specific issue of the reliability of the scientific testimony,

under Frye “[g)enerally appellate courts used a de novo

standard to review admissibility decisions because they had

access to the same information as the trial courts regarding

2 With one exception, the district court did not examine the studies

themselves, but relied on critiques of the studies provided by defendants.

864 F.Supp. at 1325 n. 27, an exercise of discretion that strikes Amicus

as questionable.

12

the ‘general acceptance’ of a particular scientific method. New

Challenges at 1526.5

In this case, however, the court of appeals stated

explicitly that the “district court's ruling on the admissibility of

evidence is reviewe for abuse of discretion.” 78 F.3d at 529.

The court added that “[bJecause the Federal Rules of

Evidence governing expert testimony display a preference for

admissibility, we apply a particularly stringent standard of

review to the trial judge's exclusion of expert testimony.” Jd.

Nevertheless, the court of appeals did not “substitute[] its

own judgment for that of the District Court,” as Petitioner

claims. Brief for Pet. at 20. Rather, the court clearly focused

The court explained that, under Daubert:

“ft is important for trial courts to keep in mind the

separate functions of judge and jury . . . . the gatekeeping

responsibility of the trial courts is not to weigh or choose

between conflicting scientific opinions, or to analyze and

study the science in question in order to reach its own

scientific conclusions from the material in the field.

Rather, it is to assure that an expert's opinions are based

on relevant scientific methods, processes, and data.

the Present, and Worrying About the Future of Scientific Evidence, 15

Cardozo L. Rev. 1799, 1820-21 (1994); Note, Jay P. An Autopsy

of Scientific Evidence in a World, 84 Geo. L.J. 1985,

i

13

Trial judges must . . . be careful not to cross the line

between deciding whether the expert's testimony is based

on ‘scientifically valid principles’ and deciding upon the

correctness of the expert's conclusions. The latter inquiry

is for the jury and, therefore, judges may not implicitly

factor it into their assessment of reliability.

78 F.3d at 530.

In this case, the court of appeals concluded, “the district

court . . . excluded the testimony because it drew different

conclusions from the research than did each of the experts.”

Id. at 533. This amounted to an abuse of discretion since,

“[a]s Daubert makes clear, the district court may not decide

Daubert and improperly focused on the proffered experts’

‘conclusions’ rather than on their ‘principles and

methodology.’ . . . That sort of legal error would be a proper

ground for reversal under an abuse-of-discretion standard.”

Brief for the United States as Amicus Curiae at 26: ‘

This, Amicus submits, is precisely the decision of the

court of appeals.

14

I. CLOSE SCRUTINY OF RULINGS EXCLUDING

EXPERT TESTIMONY IS NECESSARY TO

EFFECTUATE THE LIBERAL THRUST OF THE

RULES OF EVIDENCE, ACCESS TO JUSTICE AID

THE CONSTITUTIONAL ROLE OF THE JURY.

Petitioners complain of the court of appeals’ application

of “a particularly stringent standard of review to the trial

judge’s exclusion of expert testimony,” compared to a more

deferential review of a ruling admitting evidence. They argue

and Daubert. Pet. Br. at 40.

Amicus submits that weighty considerations of policy and

const'tutional imperative require an appellate standard tnat

favors admissibility. Moreover, there are no countervailing

concems sufficient to mandate less stringent review of trial

court rulings.

A. Close Scrutiny of Rulings Excluding Expert

Testimony Effectuates the Liberal Thrust of the

Federal Rules of Evidence.

criticized judge-made barriers to the function of

juries. See, e.g., 3 John H. Wigmore, Evidence §688 (1940);

Morgan, Suggested Remedy for Obstructions to Expert

Testimony by Rules of Evidence, 10 U. Chi. L. Rev. 285

(1943); Paul Rheingold, The Basis of Medical Testimony, 15

Vand L. Rev. 473, 475 (1962).

The enactment of the Federal Rules of Evidence in 1975

represents a general abolition of many of these common-law

barriers. Albert Jenner, Chairman of the Advisory Committee

on the Rules of Evidence explained to Congress:

The Advisory Committee is especially proud of the rules

encrusted with a heavy and suffocating layer of

15

As practical and experienced trial lawyers, we knew and,

in fact have long known that intelligent jurors realize that

an expert is only stating his opinion, that his testimony is

to be treated as an opinion and is not binding upon the

jurors and is to be judged in the light of all the evidence in

the case, to be accepted or rejected by a juror as he sees

fit.

Rules of Evidence, Hearings Before the Special Subcom. on

Reform of Federal Criminal Laws of the House Comm. on the

Judiciary, 93d Cong., 1st Sess. 87-88 (1973).

Judge Weinstein has declared:

The Federal Rules of Evidence have produced an

enormous loosening up of the restrictions on the

admission of expert testimony, on its basis, on its form,

and on the effective utilization of such testimony one

admitted. This relaxation was needed to give the trier of

fact convenient access to the reliable technical knowledge

that is available m our modern society.

Jack B. Weinstein, Improving Expert Testimony, 20 U. Rich.

L. Rev. 473, 482 (1986).

This Court’s decisions under the Rules have consistently

upheld the Rules’ preference in favor of broad admissibility of

scientific evidence and confidence in the jury’s ability, aided

by cross-examination and the adversarial process, to carry out

its ng function. E.g., Rock v. Arkansas, 483 U.S. 44,

61 (1 In Daubert, the Court recognized the “liberal

thrust” of the Federal Rules and their “general approach

relaxing the traditional barriers to ‘opinion’ testimony.”

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

(1993), quoting Beech Aircraft Corp. v. Rainey, 488 U.S.

153, 169 (1988).

Indeed the Rules themselves prescribe “asymmetrical”

standards favoring admissibility, even in areas committed to

the sound discretion of the trial judge. Rule 403, for example,

provides that relevant evidence may be excluded “if its

probative value is substantially outweighed by the danger of

B. Close Scrutiny of Rulings Excluding Expert

Testimony is Necessary to Preserve Access to Justice.

inadmissible does not simply exclude a piece of evidence. This

is frequently the deathknell of plaintiff's cave of action.

One of this Court’s earliest pronouncements declared

that “the very essence of civil liberty certainly consists in the

right of every individual to claim the protection of the laws,

whenever he receives an injury. One of the first duties of

government is to afford that protection” Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 163 (1803). This right of

access to justice is so fundamental that this Court has located

“the duty of every State to provide, in the administration of

justice, for the redress of private wrongs” in the Due Process

Clause of the Fourteenth Amendment. Missouri Pacific Ry.

Co. v. Humes, 115 U.S. 512, 521 (1885). See also Logan v.

Zimmerman Brush Co., 455 U.S. 422, 429 (1982)(“The

17

Court traditionally has held that the Due Process Clauses

protect civil litigants who seek recourse in the courts, either

as defendants hoping to protect their property or as plaintiffs

attempting to redress grievances.”).

This Court’s decisions striking down state restrictions on

providing legal services to potential plaintiffs have further

recognized that “meaningful access to the courts is a

fundamental right within the protection of the First

Amendment.” United Union v. State Bar of

Michigan, 401 U.S. 576, 585 (1971).

It is a fact of our justice system today that “in many sorts of

civil litigation, the plaintiffs cannot satisfy their burden of

proof without scientific evidence.” Margaret A. Berger,

Procedural Paradigms For Applying The Daubert Test, 78

Minn. L. Rev. 1345, 1348 (1994). It is also a fact of life that

in any given field of science, most of the qualified experts are

employed by, o¢ are engaged in research funded by

manufacturers or corporations who are frequent defendants in

such litigation. As one court has recognized, undue

restrictions on expert testimony place an especially onerous

burden on injured plaintiffs, who do not have access to the

numbers of experts available to manufacturers. Knight v. Otis

Elevator Co., 596 F.2d 84, 88 (3d Cir. 1979).

Close scrutiny of rulings excluding expert testimony is

appropriate to prevent judges who set the bar of admissibility

too high from preventing aggrieved persons “from resorting

to the courts to vindicate their legal rights. The right to

petition the courts cannot be so handicapped.” Brotherhood

of Railway Trainmen y. Virginia ex rel. Virginia State Bar,

377 US. 1, 7 (1964).

In Suits at common law, where the value in controversy

shall exceed twenty dollars, the right of trial by jury shall

be preserved, and no fact tried by a jury, shall be

otherwise reexamined in amy Court of the United States,

than according to the rules of common law. |

U.S. Const., amend vii.5

; Unappreciated ;

Hastings LJ. 579, 595-97 (1993). Specifically, the American

colonists complained bitterly of efforts by the Crown to shift

the adjudication of civil and criminal disputes from colonial

courts, where local juries sat, to Vice-Admiralty courts and

OF

CONSTITUTION OF THE UNITED STATES 653 (R. Rotunda & J

Nowalé eds. 1987)(1833); Edith Guild Henderson, 7he

Background of the Seventh Amendment, 80 Harv. L. Rev.

289, 298 (1966); Charles Wolfram, Zhe Constitutional

> Congress has restated this guarantee even more forcefully for federal

courts:

The right of trial by jury as declared by the Seventh

Amendment to the Constitution or as given by a statute of the

United States shall be preserved to the parties inviolate.

Fed. R. Civ. Pro. 38(a).

E

eet

HALE

:

Hi ELE

oy

e

behavior. Higginbotham,

Continuing the Dialogue: Civil Juries and the Allocation of

Judicial Power, 56 Texas L. Rev. 47, 52 (1977).

For this reason, this Court has historically championed

the right to trial by jury and has viewed any infringement with

great disfavor. /

and jurisprudence that any seeming

right to a jury trial should be scrutinized with the utmost

because the federal courts operate under the strictures of

the Seventh Amendment. . . . we are reluctant to stray too

far from traditional common-law standards, or to take

deprive plaintiffs of their right to trial by jury. Closer scrutiny

of such decisions is therefore warranted to preserve that

constitutional right. See Ambrosini v. Labarraque, 101 F.3d

129, 133 (D.C. Cir. 1996)(“When a court denies the right to

have a jury decide a disputed issue, especially one of a

infringe upon the right to trial by jury:

Lind v. Schenley Indus., Inc., 278 F.2d 79, 90 (3d Cir.) (in

banc), cert. denied, 364 U.S. 835 (1960)(emphasis added).

Of similar import is Justice Black’s caution in Galloway

v. United States:

A verdict should be directed, if at all, only when, without

weighing the credibility of the witnesses, there is in the

evidence no room for honest difference of opmmion over the

factual issued in controversy. | shall continue to believe,

that m all other cases a judge should, in obedience to the

command of the Seventh Amendment, not interfere with

the jury’s function Since this is a matter of high

constitutional importance, appellate courts should be alert

to insure the preservation of this constitutional night.

319 U.S. 372, 407 (1943)(Black, J., dissenting). The price of

the lack of such vigilance may well be “the ‘gradual process

of judicial erosion which . . . has slowly worn away a major

portion of the essential guarantee of the Seventh

Amendment.” Parklane Hosiery Co., Inc. v. Shore, 439 U.S.

322, 339 (1979)(Rehnquist, J., dissenting), quoting Justice

Black in Galloway, 319 U.S. at 397.

In this regard, respondent seems to us to be overly

pessumistic about the capabilities of the jury and of the

adversary system generally. Vigorous cross-examination,

presentation of contrary evidence, and careful instruction

on the burden of proof are the traditional and appropriate

means of attacking shaky but admissible evidence.

Assumptions Underlying the

Debaté About Scientific Evidence: A Closer Look at Juror

“Incompetence” and Scientific “Objectivity,” 25 Conn. L.

Rev. 1083, 1090, 1094-98 (1993).

Although “[cJoncerns about jury competence preceded

the founding of the United States and have troubled scholars

American judicial

proposals with skepticism.” Developments in the Law — the

Civil Jury: The Jury's Capacity to Decide Complex Civil

Cases, 110 Harv. L. Rev. 1489, 1491 (1997). That conclusion

24

AWARDS 175-182 (1995) (summarizing empirical studies on

oP 1 Data tts

ignored, nor did it overwhelm other factors in jurors’

judgments.”).

Comprehension, 40 Am. U. L. Rev. at 764.

| _ Even recognizing the limitations of both judges and

Junies, prudence suggests that the jury is the preferable arbiter.

Jury decisions do not become precedents -- “when a court

makes a scientific mistake, the consequences are far broader

than if a jury makes the same mistake.” Anthony Z. Roisman,

~ he? a a nf f “~ 1 a 7 ~ oe rae . eS p-are >, oe ae wv _ ie echt : J eee | ' ’ se! Ca ee ae .

Conflict Resolution In The Courts: The Role Of Science, 15

Cardozo L. Rev. 1945, 1949 (1994).

Amicus suggests that the opportunities for improving

juror understanding and performance have not been

exhausted. Effective appellate review to protect the jury's role

as factfinder continues to be appropriate, both as public policy

and constitutional imperative.

CONCLUSION

For the foregoing reasons, Amicus Curiae urges this

Court to affirm the judgment of the Court of Appeals.

Respectfully submitted,

Jeffrey Robert White

1050 31st St., NW

Washington, DC 20007

(202) 965-3500

Counsel for Amicus Curiae:

Association of Trial Lawyers of

America

July 29, 1997