Toward a More Apparent Approach to Considering the Admission of Expert Testimony

Thomas D. Schroeder*

Over a quarter century ago, Daubert v. Merrell Dow Pharmaceuticals, Inc. reaffirmed the trial court’s role as “gatekeeper” for the admission of scientific expert evidence, to screen it not only for relevance, but for reliability.¹ To discharge this gatekeeper role, a trial court must make a preliminary determination whether the expert’s opinion evidence meets the admissibility standards of Federal Rule of Evidence 702, which in turn requires application of Federal Rule of Evidence 104(a)’s preponderance test. Trial judges are cautioned not to unduly assess the validity or strength of an expert’s scientific conclusions, and the Supreme Court has said that “shaky but admissible evidence”² should be left for a jury’s consideration where it can be tested by cross-examination and contrary evidence. But application of these principles can be difficult, and appellate review can be frustrated, even under a deferential abuse of discretion standard, where trial courts are not clear about what standard they are applying. Worse, some trial and appellate courts misstate and muddle the admissibility standard, suggesting that questions of the sufficiency of the expert’s basis and the reliability of the application of the expert’s method raise questions of weight that should be resolved by a jury, where they can be subject to cross-examination and competing evidence. The state of affairs has prompted the United States Judicial Conference’s Advisory Committee on the Federal Rules of Evidence to consider possible amendment to Rule 702 to reiterate the need for proper application of Rule 104(a)’s threshold to each requirement of Rule 702.

This Article highlights lingering confusion in the caselaw as to the proper standard for the trial court’s discharge of its gatekeeping role for the admission of expert testimony. The Article urges correction of the faulty application of Daubert’s admonition as to “shaky but admissible” evidence as a substitute for proper discharge of the trial court’s gatekeeper function under Rule 104(a). The Article concludes with several suggestions for trial and appellate courts to consider for better decisionmaking in discharging their duty to apply Rule 104(a)’s preponderance standard to the elements of Rule 702.

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© 2020 Thomas D. Schroeder. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Chief United States District Judge for the Middle District of North Carolina. Member, United States Judicial Conference Advisory Committee on the Federal Rules of Evidence, and Chair of Subcommittee on Rule 702; Senior Lecturer, Duke University School of Law; Member, American Law Institute. The views expressed herein are mine only and do not represent the official views of the Advisory Committee on the Federal Rules of Evidence. I wish to thank Professor Daniel Capra, the Committee’s Reporter, for use of his excellent memoranda on Rule 702, as well as materials from Timothy Lau, PhD, Senior Research Associate, of the Federal Judicial Center. The Advisory Committee memoranda are available at https://www.uscourts.gov/committees/evidence.

1 509 U.S. 579, 597 (1993).

2 Id. at 596.