* Staff Attorney, Fair Employment Practices Clinic, Cleveland-Marshall College of Law. B.A. 1970, J.D. 1973, University of Pennsylvania. This Article is dedicated to William K. Thomas, who, in his capacity as United States District Judge for the Northern District of Ohio, has been a wonderful courtroom teacher for countless young attorneys and who first challenged me to think critically about the subject of this Article. I wish to thank Professors Susan Becker and Stephen Lazarus for their encouragement and many helpful comments. 1. 113 S. Ct. 2786 (1993). 2. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2795-96 (1993) (holding that Federal Rules of Evidence assign to trial judge task of ensuring that expert's testimony both rests on reliable foundation and is relevant to task at hand); see also infra Part III 3. See, e.g., Rochelle Cooper Dreyfuss, Is Science a Special Case? The Admissibility of Scientific Evidence After Daubert v. Merrell Dow, 73 Tex. L. Rev. 1779, 1804 (1995) (concluding that Court in Daubert was mistaken in treating science as different, but was correct in using Rule 702 in lieu of Frye rule); Jean Macchiaroli Eggen, Toxic Torts, Causation, and Scientific Evidence After Daubert, 55 U. Pitt. L. Rev. 889, 919-36 (1994) (analyzing Daubert decision and resulting changes in standard for admissibility of scientific evidence); Leslie A. Lunney, Protecting Juries From Themselves: Restricting the Admission of Expert Testimony in Toxic Tort Cases, 48 S.M.U. L. Rev. 103, 185 (1994) (concluding that federal courts, concerned that liberal admissibility of expert testimony leads to inconsistent and inaccurate verdicts in tort cases, have crafted admissibility standard much more restrictive than Congress intended when establishing uniform code of evidence); Susan R. Poulter, Daubert and Scientific Evidence: Assessing Evidentiary Reliability in Toxic Tort Litigation, 1993 Utah L. Rev. 1307, 1309, 1320-35 (1993) (cautioning that Court's terminology in Daubert could result in confusion about proper scope of admissibility of evidence and suggesting guidelines for application of Daubert in toxic tort cases); Joseph Sanders, Scientific Validity, Admissibility, and Mass Torts After Daubert, 78 Minn. L. Rev. 1387, 1388 (1994) (arguing that Court's opinion in Daubert is deficient because, even though concept of scientific validity is central to Court's approach, it failed to sufficiently develop concept). 4. See Ronald J. Allen, Expertise and the Daubert Decision, 84 J. Crim. L. & Criminology 1157, 1174-75 (1994) (arguing that Daubert will prove to be irrelevant and that encouraging juries to defer to expert evidence puts stamp of approval on undeliberative decisionmaking); Lisa R. Askowitz & Michael H. Graham, The Reliability of Expert Psychological Testimony in Child Sexual Abuse Prosecutions, 15 Cardozo L. Rev. 2027, 2033 (1994) (asserting that expert testimony is especially crucial in child sexual abuse cases when child is often only witness); Nancy A. Miller, Daubert and Junk Science: Have Admissibility Standards Changed?, 61 Def. Couns. J. 501, 501-02 (1994) (utilizing recent criminal cases to argue that standards for admissibility of expert evidence appear unchanged despite intentions of Court in Daubert); Jason Sabot, Comment, Expert Testimony on Organized Crime Under the Federal Rules of Evidence: United States v. Frank Locasio and John Gotti, 22 Hofstra L. Rev. 177, 222-27 (1993) (discussing organized crime case and arguing that federal courts should adopt flexible approach set forth in Daubert as standard for admissibility of expert evidence). 5. For purposes of this Article, "federal civil rights" actions are cases brought in federal court: (1) under the Reconstruction Era civil rights statutes, 42 U.S.C. .. 1981-1988 (1988 & Supp. V 1993) (including their criminal law counterparts, 18 U.S.C. .. 241-242 (1994)); (2) under the modern civil rights statutes, such as Title VII of the Civil Rights Act of 1964, 42 U.S.C. .. 2000e to 2000e-17 (1988 & Supp. V 1993), or a twentieth century statute criminalizing violation of civil rights, such as 18 U.S.C. . 243 (1994), which prohibits the exclusion of jurors based on race or color; and (3) directly under the Constitution of the United States as authorized by Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 390-97 (1971), which created federal cause of action against federal agents under Fourth Amendment for which damages are recoverable upon proof of injuries resulting from violations by federal agents. 6. 347 U.S. 483 (1954). 7. See Doe v. Bolton, 410 U.S. 179, 216-17 (1973) (Douglas, J., concurring) (stating that phenomenon of life takes time to develop and that at conception life is potential rather than actual); Roe v. Wade, 410 U.S. 113, 159-60 (1973) (recognizing that physicians focus either upon conception, live birth, or viability as point at which life begins). 8. See Cleveland Bd. of Educ. v. La Fleur, 414 U.S. 632, 643-44 (1974) (concluding, despite medical evidence that at least some teachers become physically disabled from performing their duties during latter stages of pregnancy, that mandatory termination provisions for pregnant teachers sweep too broadly and contain irrebuttable presumption of physical incompetency that violates Due Process Clause). 9. See New York City Transit Auth. v. Beazer, 440 U.S. 568, 588-89 & n.32 (1979) (establishing that creation of special rules by employers for methadone users does not violate equal protection based on evidence presented to district court that methadone is narcotic similar to heroin in that its users become addicted and require special supervision). 10. See Dothard v. Rawlinson, 433 U.S. 321, 334-36 (1977) (discussing expert testimony on issue of whether female employee would be capable of maintaining order in maximum security penitentiary where 20% of male inmates are sex offenders). 11. See Washington v. Davis, 426 U.S. 229, 251 & n.17 (1976) (upholding district court's finding as to validity of police admissions test based on statistical study and expert testimony that evidenced correlation between test scores and success in police training program). 12. Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 308-13 (1977) (remanding case to trial court for further statistical findings as to percentage of minority teachers in area labor market). 13. See Cannon v. University of Chicago, 441 U.S. 677, 681 n.2 (1979) (citing statistics indicating that percentage of women admitted to medical school was virtually identical to percentage of women applicants). 14. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 272-77 (1978) (considering evidence that medical school's race-based admissions program resulted in admission of disproportionate number of minority students). 15. See Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 462 & n.11 (1979) (referring to district court finding of demographic data indicating that school board chose particular construction sites to maintain or further segregation). 16. See Oregon v. Mitchell, 400 U.S. 112, 133 (1970) (stating that at time of Voting Rights Act Amendments, Congress had available statistics demonstrating that voter registration is consistently greater in states without literacy tests). 17. See Buckley v. Valeo, 424 U.S. 1, 20-22 & n.23 (1976) (using statistical evidence to show small percentage of money by congressional candidates was from amounts donated in excess of ceiling established by Federal Election Campaign Act of 1971, and therefore that this Act had no dramatic adverse effect on funding of campaigns and political association). 18. See Connor v. Finch, 431 U.S. 407, 416-18 (1977) (noting evidence showing substantial deviations from population equality among Mississippi Senate districts); Beer v. United States, 425 U.S. 130, 141-42 (1976) (considering statistical evidence of voters in relevant districts and concluding that new apportionment plan would not have effect of abridging or denying right to vote on account of race); Whitcomb v. Chavis, 403 U.S. 124, 161-62 (1971) (stating that statistical evidence of malapportionment justified district court order for state-wide redistricting in Indiana). 19. See United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 & nn.2-3 (1983) (discussing whether plaintiff ' s statistics, indicating that white postal workers were promoted more frequently than blacks with more education and experience, should establish prima facie case of discrimination or whether plaintiff should have been required to show direct evidence of discriminatory intent). 20. See Cooper v. Federal Reserve Bank, 467 U.S. 867, 878-79 (1984) (stating that statistical evidence was not sufficient to support finding of pattern of bank-wide discrimination within certain specific pay grades). 21. See Bazemore v. Friday, 478 U.S. 385, 397-400 (1986) (Brennan, J., concurring) (finding that court of appeals erred in upholding district court's refusal to accept petitioner's expert statistical evidence as proof of discrimination in case involving salary disparities between black and white agricultural workers). 22. See Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 406-07, 423 (1985) (detailing testimony by parties' expert witnesses concerning physiological and psychological capabilities of aging person in case involving mandatory retirement for flight engineers at age 60). 23. See Price Waterhouse v. Hopkins, 490 U.S. 228, 255-56 (1989) (embracing district court's finding based on expert testimony of gender stereotyping in hiring practices of accounting firm). 24. See Edwards v. Aguillard, 482 U.S. 578, 612 (1987) (Scalia, J., dissenting) (recognizing evidence on creationism by experts in action challenging state law that prohibited teaching evolutionary theory in public schools unless accom panied by teaching of "creation science"). 25. See Washington v. Harper, 494 U.S. 210, 226-31 (1990) (comparing medical evidence of effectiveness of both drug treatment and physical restraint in due process challenge to policy requiring state to establish existence of mental disorder prior to administering antipsychotic drugs). 26. See Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261, 283-84 (1990) (citing possible advancements in medicine as one justification for allowing states to require clear and convincing evidence of incompetent patient's wishes where guardian seeks to discontinue comatose patient's life-sustaining treatment). 27. See Rust v. Sullivan, 500 U.S. 173, 192-94 (1991) (rejecting First Amendment challenge to prohibition on doctors' discussion of medical procedure of abortion). 28. See Heller v. Doe, 113 S. Ct. 2637, 2643-46 (1993) (citing several studies stating that mental retardation is much easier to diagnose and requires less invasive treatment than mental illness to justify higher standard of proof before commitment for mental illness). 29. U.S. Const. amend. VIII. 30. See Gomez v. United States Dist. Court, 112 S. Ct. 1652, 1653-55 (1992) (Stevens, J., dissenting) (citing expert statements and eyewitness descriptions of physical effects of exposure to cyanide gas to give merit to petitioner's claim that execution by this means constitutes cruel and unusual punishment). 31. See Campbell v. Wood, 114 S. Ct. 2125, 2127-28 (1994) (Blackmun, J., dissenting) (citing expert testimony to argue that hanging is imprecise and includes risk of slow strangulation or decapitation, and therefore constitutes cruel and unusual punishment). 32. Helling v. McKinney, 113 S. Ct. 2475, 2481-82 (1993). 33. Planned Parenthood of Southeastern Pa. v. Casey, 112 S. Ct. 2791, 2845 (1992) (Blackmun, J., concurring in part and dissenting in part) (inquiring whether, based on expert testimony, empirical studies, and common sense, "'in a large fraction of the cases in which [the restriction] is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion'" (quoting id. at 2830)). 34. Based on a Westlaw search conducted September 26, 1995, 35 of 278 federal cases citing to Daubert are civil rights cases as that term is used in this Article. See supra note 5 (defining "civil rights" for purposes of this Article). 35. See Frank J. Cavico, Invasion of Privacy in the Private Employment Sector: Tortious and Ethical Aspects, 30 Hous. L. Rev. 1263, 1265 (1993) ("Modern technology arms an employer with advanced and highly effective methods of supervision and evaluation. A greater number of employers have at their disposal the instruments necessary to engage in surveillance, monitoring, and testing of employees."); see also Lewis R. Katz, In Search of a Fourth Amendment for the Twenty-First Century , 65 Ind. L.J. 549, 549-50 (1990). Concerned with government surveillance, Katz warns of the dangers of unreasonable searches:
Today in America, the police may target any individual for scrutiny--for good reason, for bad reason or for no reason at all. They may use any number of sophisticated surveillance techniques without judicial authorization or review. The power to gather intimate details about our private lives has been enhanced by modern technology and divorced from the fourth amendment guarantee that permits the government to conduct searches and seizures only if it behaves reasonably.Id. 36. See, e.g., Americans with Disabilities Act, 42 U.S.C. . 12101 (Supp. V 1993) (potentially requiring expert proof on variety of issues such as presence of impairment, limitation of activity, and reason ableness of accommodation to resolve claims regarding discrimination in employment, public services, transportation, and accommodations); Fontroy v. Owens, 114 S. Ct. 671, 672 (1994) (vacating and remanding for reconsideration in light of Helling prisoner's Eighth Amendment claim involving possible expert proof of harm from exposure to asbestos); Helling v. McKinney, 113 S. Ct. 2475, 2481-82 (1993) (recognizing claim involving possible expert proof of unreasonable risk to health of prisoner who claimed that prison officials violated Eighth Amendment when they acted with deliberate indifference by exposing him to environmental tobacco smoke). 37. 42 U.S.C. . 1981(a) (Supp. V 1993). The Act allows recovery of both compensatory and punitive damages in cases where plaintiff proves "unlawful intentional discrimination" in violation of Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act. Id. In addition, the statute affords a right to a jury trial. Id. 38. Id. . 1988(c). Pursuant to 42 U.S.C. . 1988(c) (Supp. V 1993), as amended by the 1991 Act, the courts may also award fees for expert services to prevailing parties in cases involving intentional discrimination brought under 42 U.S.C. . 1981 (1988 & Supp. V 1993), Title VII of the Civil Rights Act of 1964, 42 U.S.C. .. 2000e-2 & 2000e-3 (1988 & Supp. V 1993), the Rehabilitation Act of 1973, 29 U.S.C. . 791 (1988 & Supp. V 1993), or the Americans with Disabilities Act, 42 U.S.C. . 12112 (Supp. V 1993). Many of the nineteenth century civil rights statutes, including 42 U.S.C. .. 1982, 1983, 1985, and 1986 (1988), and the modern statues, including Title VI of the Civil Rights Act of 1964, 42 U.S.C. . 2000d (1988), the Voting Rights Act of 1965, 42 U.S.C. . 1973 (1988), the Age Discrimination in Employment Act, 29 U.S.C. . 621 (1988 & Supp. V 1993), Title IX of the Educational Amendments of 1972, 20 U.S.C. . 1681 (1994), the Religious Freedom Restoration Act of 1993, 42 U.S.C. . 2000bb (Supp. V 1993), and the Violence Against Women Act of 1994, 42 U.S.C. . 13981 (Supp. V 1993), lack explicit authorization for an award of expert fees, and such awards appear to be unavailable under these provisions at present. See West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 96-97 (1991) (holding that provision for award of reasonable attorneys' fees does not automatically allow award of expert fees). 39. This Article classifies expert evidence as "novel" if its admissibility has not previously been established in the courts. 40. 293 F. 1013 (D.C. Cir. 1923). 41. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2795 & n.7 (1993). 42. Black's Law Dictionary defines the Civil Rights Acts as "[f]ederal statutes enacted after Civil War, and more recently in 1957 and 1964, intended to implement and give further force to basic personal rights guaranteed by Constitution. Such Acts prohibit discrimination . . . based on race, color, age, or religion." Black's Law Dictionary 246 (6th ed. 1990). 43. Proposed Amendments to the Federal Rules of Civil Procedure, 61 U.S.L.W. 4365, 4406 (U.S. Apr. 27, 1993). 44. Oliver Brown, Argument: The Oral Arguments Before the Supreme Court in Brown v. Board of Education Of Topeka 1952-55, at 38 (Leon Friedman ed., 1969) [hereinafter Argument] (quoting portion of argument by Thurgood Marshall, NAACP attorney on behalf of appellants, Harry Briggs, Jr., et al., made on December 9, 1952). 45. Argument, supra note 44, at 42. 46. 347 U.S. 483 (1954). 47. As one commentator noted, Brown "came to symbolize for the American people generally the Court's determination to destroy segregation on grounds of incompatibility with the equal-protection clause of the Fourteenth Amendment and the requirements of twentieth century constitutional democracy generally." Alfred H. Kelly & Winfred A. Harbison, The American Constitution 930 (1963). 48. 98 F. Supp. 529 (E.D.S.C. 1951), remanded per curiam, 342 U.S. 350 (1952), modified, 103 F. Supp. 920 (E.D.S.C. 1952), rev'd sub nom. Brown v. Board of Educ., 347 U.S. 483 (1954). 49. See Removing a Badge of Slavery: The Record of Brown v. Board of Education 48-49 (Mark Whitman ed., 1993). Professor Clark testified in the trials of all the consolidated cases except Brown. Id. at 48. See also Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality 315-21 (1976) (detailing Professor Clark's career and how he was chosen to testify in Brown's consolidated cases). 50. See Edmond Cahn, Jurisprudence, 30 N.Y.U. L. Rev. 150, 161-63 (1955) (containing portions of Professor Clark's testimony in the consolidated South Carolina case, Briggs v. Elliott, 98 F. Supp. 529 (E.D.S.C. 1951)). Professor Clark testified that his tests were "generally accepted as indications of the child's sensitivity to race as a problem." Transcript of Record at 86, Briggs, quoted in Cahn, supra, at 161 n.25. 51. Transcript of Record at 87-90, quoted in Cahn, supra note 50, at 162-63 (citations omitted). Professor Clark detailed the testing which he did in Clarendon County, South Carolina:
And, this result was confirmed in Clarendon County where we found eleven out of sixteen children picking the brown doll as looking "bad," when we also must take into account that over half of these children in spite of their own feelings, negative feelings--about the brown doll, were eventually required on the last question to identify themselves with this doll which they considered as being undesirable or negative. It may also interest you to know that only one of these children, between six and nine, dared to choose the white doll as looking bad. The difference between eleven and sixteen was in terms of children who refused to make any choice at all and the children were always free not to make a choice. They were not forced to make a choice. These choices represent the children's spontaneous and free reactions to this experimental situation. Nine of these sixteen children considered the white doll as having the qualities of a nice doll. To show you that was not due to some artificial or accidental set of circumstances, the following results are important. Every single child, when asked to pick the doll that looked like the white child, made the correct choice. All sixteen of the sixteen picked that doll. Every single child, when asked to pick the doll that was like the colored child; every one of them picked the brown doll. My opinion is that a fundamental effect of segregation is basic confusion in the individuals and their concepts about themselves conflicting in their self images. That seemed to be supported by the results of these sixteen children, all of them knowing which of those dolls was white and which one was brown. Seven of them, when asked to pick the doll that was like themselves; seven of them picked the white doll. This must be seen as a concrete illustration of the degree to which the pleasures [sic] which these children sensed against being brown forced them to evade reality--to escape the reality which seems too overburdening or too threatening to them. This is clearly illustrated by a number of these youngsters who, when asked to color themselves--For example, I had a young girl, a dark brown child of seven, who was so dark brown that she was almost black. When she was asked to color herself, she was one of the few children who picked a flesh color, pink, to color herself. When asked to color a little boy, the color she liked little boys to be, she looked all around the twenty-four crayons and picked up a white crayon and looked up at me with a shy smile and began to color. She said, "Well, this doesn't show." So, she pressed a little harder and began to color in order to get the white crayon to show. These are the kinds of results which I obtained in Clarendon County. Id.52. See Kluger, supra note 49, at 321. 53. Argument, supra note 44, at 42. 54. U.S. Const. amend. XIV. 55. 163 U.S. 537 (1896). In Plessy, the Court adopted the separate but equal doctrine for analysis of Fourteenth Amendment equal protection claims. Id. at 550-52 (holding that state law requiring racial segregation on common carrier was constitutional where statute required equal facilities). The Court upheld the separate but equal doctrine in pre-Brown cases that challenged segregation in education by examining whether the separate facilities were substantially equal in the quality of opportunity they afforded students. See, e.g., Sweatt v. Painter, 339 U.S. 629, 635 (1950) (requiring state law school to admit black petitioner because education he would otherwise receive was not substantially equal); Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 344 (1938) (finding that state university's failure to admit black petitioner to law school violated equal protection because alternative black university had no law program even though it provided substantially equal facilities); Gong Lum v. Rice, 275 U.S. 78, 85 86 (1927) (holding that Asian child was not denied equal protection when classified among minority races assigned to separate school, so long as equal facilities were afforded to both classes). 56. Kluger, supra note 49, at 321. 57. Kluger, supra note 49, at 321. 58. Kluger, supra note 49, at 321. 59. Kluger, supra note 49, at 321. 60. Argument, supra note 44, at 51. 61. Argument, supra note 44, at 58. 62. Argument, supra note 44, at 58. 63. Argument, supra note 44, at 58. 64. See Kenneth B. Clark & Mamie P. Clark, Racial Identification and Preference in Negro Children, in Readings in Social Psychology 169 (Newcomb et al. eds., 1947) (presenting results of doll test technique utilized by authors to investigate development of racial identification as function of ego development and self awareness in black children). 65. Argument, supra note 44, at 58-59. 66. Argument, supra note 44, at 59. 67. Brown v. Board of Educ., 345 U.S. 972, 972 (1953) (ordering further briefing and reargument on legislative intent of Fourteenth Amendment, scope of Court's power to construe it, and framing of appropriate remedy should Court hold segregation unlawful). The reargument, which was held during the 1954 Term, primarily addressed the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. Brown v. Board of Educ., 347 U.S. 483, 489 (1954). 68. Brown, 347 U.S. at 483. 69. Id. at 494. 70. See Brown v. Board of Educ., 98 F. Supp. 797, 800 & n.1 (D. Kan. 1951) (holding that maintenance of segregated school system does not violate Fourteenth Amendment despite finding that segregation had detrimental effects). 71. See Belton v. Gebhart, 87 A.2d 862, 871 (Del. Ch.) (holding that educational facilities were not equal and issuing injunction to prevent authorities from refusing admission of black children to schools previously restricted to white students), aff'd , 91 A.2d 137, 152 (Del. 1952). 72. See Brown, 347 U.S. at 494 & n.10 (acknowledging findings in Delaware and Kansas cases that separating children by race denotes inferiority of black children, affects motivation, retards educational and mental development, and deprives them of benefits of quality of education available in integrated school system). 73. Id. at 494. 74. Brown, 347 U.S. at 494 n.11 (citing Kenneth B. Clark, Effect of Prejudice and Discrimination on Personality Development, in Midcentury White House Conference on Children and Youth (1950)). 75. See id. (listing studies on prejudice, discrimination, and segregation from 1944 to 1950 as modern authority on ill effects of segregation). 76. Id. at 495. 77. Id. As is common in modern constitutional litigation, the Court's decision that racially separate schools afford unequal education appears to rest ultimately on "legislative facts" rather than "adjudicative facts," including Professor Clark's testimony, appearing in the record. See 2 Kenneth Davis, Administrative Law Treatise . 12:3, at 412-15 (2d ed. 1979). Professor Davis' categories serve to distinguish facts relating specifically to the parties from general propositions that may support the adoption of law or policy. Id. 78. See Note, Grade School Segregation: The Latest Attack on Racial Discrimination, 61 Yale L.J. 730, 737 (1952) (detailing deficiencies in social science evidence presented in school desegre gation cases). 79. Id. 80. Id. 81. See Cahn, supra note 50, at 163-65 (discussing dangers of using latest trends in psychological literature to determine fundamental rights). 82. See Cahn, supra note 50, at 163-65. Cahn considered any perception that Brown rested in significant part on the testimony and opinions of scientists to be dangerous for he "would not have the constitutional rights of Negroes--or of other Americans--rest on any such flimsy foundation as some of the scientific demonstrations in these records." Id. at 157-58. 83. See Cahn, supra note 50, at 163-65. 84. See Ernest van den Haag & Ralph Ross, The Fabric of Society 165-66 (1957) (arguing that data failed to support Professor Clark's conclusions when analyzed scientifically). 85. See id. (discussing failure to compare test results in segregated schools with those obtained in non-segregated schools, criticizing failure to consider negative symbolism traditionally associated with color black, and noting that test sample was too small to be entirely scientific). 86. See generally Kenneth B. Clark, The Desegregation Cases: Criticism of the Social Scientist's Role, 5 Vill. L. Rev. 224 (1959) (responding to criticisms of data used in Brown). 87. Id. at 231. 88. Id. 89. In some circumstances, the issues may be so difficult to resolve that they force courts to consider institutional competence of the courts. See William V. Luneburg & Mark A. Nordenberg, Specially Qualified Juries and Expert Nonjury Tribunals: Alternatives for Coping with the Complexities of Modern Civil Litigation, 67 Va. L. Rev. 887, 899 (1981) (discussing competence of juries in complex federal civil litigation); Edward V. Di Lello, Note, Fighting Fire with Firefighters: A Proposal for Expert Judges at the Trial Level, 93 Colum. L. Rev. 473, 473 (1993) (proposing creation of new adjunct office for expert judges). 90. See infra notes 91-109 and accompanying text (describing evidentiary standard created under Frye in 1923). 91. 293 F. 1013 (D.C. Cir. 1923). 92. Cf. supra note 50 (describing foundation for Professor Clark's testimony in Brown). 93. See Fed. R. Civ. P. 26(a) (providing for mandatory disclosure of witnesses "who may be used at trial to present evidence under Rules 702, 703, or 705," and requiring submission of written reports by expert witnesses); see also infra Part IV.D (discussing various procedural mechanisms--e.g., motions for discovery--that could aid in challenging novel scientific evidence). 94. Learned Hand, Historical and Practical Considerations Regarding Expert Testimony, 15 Harv. L. Rev. 40, 52 (1901-02) (proposing advisory tribunal of experts to assist jury). 95. Id. 96. Frye v. United States, 293 F. 1013, 1014 (D.C Cir. 1923). 97. Id. 98. See id. (requiring that new techniques gain "standing and scientific recognition among physiological and psychological authorities"); see also Paul C. Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half Century Later, 80 Colum. L. Rev. 1197, 1205 (1980) (describing process by which novel techniques may gain "general acceptance" to satisfy Frye). 99. See Frye, 293 F. at 1014 (noting that general acceptance evolves from scientific recognition gained through discovery, development, and experimentation). 100. Id. 101. Id. 102. See Frye, 293 F. at 1014 (requiring discovery, development and experimenta tion before recognition can be obtained); see also Giannelli, supra note 98, at 1205-07 (explaining process whereby evidence gains general acceptance). 103. See Giannelli, supra note 98, at 1205-06, 1215 (listing various techniques courts analyzed under Frye standard, including polygraph, voiceprints, gunshot residue tests, bitemark comparisons, and "numerous other forensic techniques"). 104. John William Strong et al., McCormick on Evidence . 203, at 363 (4th ed. 1992). 105. See Giannelli, supra note 98, at 1206-07 (discussing attempts by proponents of Frye to rebut criticisms of general acceptance standard); see also United States v. Tranowski, 659 F.2d 750, 757 (7th Cir. 1981) ("The trial court should not be used as a testing ground for theories supported neither by control experiments nor by calculations with indicia of reliability."). 106. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2792 (1993). 107. Transcript of Record at 86, Briggs, quoted in Cahn, supra note 50 at 161 n.25. 108. Daubert, 113 S. Ct. at 2793 & n.4; isee also Giannelli, supra note 98, at 1206-07 n.59 (discussing criticisms of Frye). 109. Charles T. McCormick, Evidence . 203, at 491 (2d ed. 1972). 110. Federal Rules of Evidence, Pub. L. No. 93 959, . 1, 88 Stat. 1926 (1975) (codified at 28 U.S.C. app. (1988 & Supp. V 1993)). 111. See Fed. R. Evid. 102 (directing that courts construe rules, inter alia, to "secure fairness in administration" and to promote "the growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined"). 112. Fed. R. Evid. 702. 113. See 11 James Wm. Moore, Moore's Federal Practice . 702.01 (2d ed. 1995). 114. See Fed. R. Evid. 702. Rule 401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. Other circumstances may result in the exclusion of evidence which is relevant. In particular, Rule 403 provides that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed. R. Evid. 403. 115. Fed. R. Evid. 702. 116. Commentators noted the silence, but disagreed as to its import. Compare Steven A. Saltzburg & Kenneth R. Redden, Federal Rules of Evidence Manual 452 (3d ed. 1982) (asserting that Frye survived) with 3 Jack B. Weinstein & Margaret A. Berger, Weinstein ' s Evidence . 702, at 702-44 (noting that several circuits abandoned Frye after enactment of Rule 702). 117. Moore, supra note 113, at 702.01 (quoting Mason Ladd, Expert Testimony, 5 Vand. L. Rev. 414, 418 (1952)). 118. See Fed. R. Evid. 702 (allowing expert testimony that "will assist the trier of fact" in understanding evidence); see also Fed. R. Evid. 401 (defining "relevant evidence" broadly to include evidence that makes existence of fact "more probable or less probable"). 119. See, e.g., United States v. St. Pierre, 812 F.2d 417, 420 (8th Cir. 1987) (noting that scientific community did not recognize existence of sex offender profile); United States v. McBride, 786 F.2d 45, 49-50 (2d Cir. 1986) (reversing erroneous exclusion of psychiatric testimony on mental facility, and citing general acceptance in medical community); United States v. Tranowski, 659 F.2d 750, 756 (7th Cir. 1981) (holding that technology to establish date of photo by calculation of astronomer was not generally accepted); United States v. Brady, 595 F.2d 359, 363 (6th Cir.) (finding that hair comparison had to conform to generally accepted explanatory theory), cert. denied, 444 U.S. 862 (1979); United States v. McDaniel, 538 F.2d 408, 413 (D.C. Cir. 1976) (finding voiceprints did not meet Frye general scientific acceptance standard); United States v. Bowers, 534 F.2d 186, 193 (9th Cir.) (holding that tool mark identification was based on generally accepted procedure), cert. denied, 429 U.S. 942 (1976); United States v. Clifford, 543 F. Supp. 424, 428 (W.D. Pa. 1982) (disallowing expert testimony on forensic linguistic analysis and noting its lack of general acceptance in scientific community), rev'd on other grounds, 704 F.2d 86 (3d Cir. 1983). 120. See infra notes 121-38 and accompanying text (discussing departure from Frye standard by some courts). 121. See United States v. Baller, 519 F.2d 463, 466-67 (4th Cir.) (finding that scientific evidence should be treated in manner similar to any other expert testimony), cert. denied, 423 U.S. 1019 (1975). 122. Id. at 466 (citing McCormick, supra note 109, . 203, at 490-91). 123. Id. 124. See United States v. Williams, 583 F.2d 1194, 1198-1200 (2d Cir. 1978) (finding that voice spectrography sufficiently satisfied various criteria for reliability, including rate of error, existence of standards, possibility of abuse, and "fail-safe" factors), cert. denied, 439 U.S. 1117 (1979). 125. Id. at 1198. 126. Id. 127. 753 F.2d 1224 (3d Cir. 1985). In Daubert, Justice Blackmun noted that the Court's discussion drew in part on Downing. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2797 n.12 (1993). 128. United States v. Downing, 753 F.2d 1224, 1226 (3d Cir. 1985). 129. Id. at 1237. 130. Id. 131. Id. 132. Id. at 1238-39. 133. Id. at 1238. 134. Id. at 1238-39 ("[W]e expect that a technique that satisfies the Frye test usually will be found reliable as well."). 135. Id. 136. Id. at 1239. 137. Id. 138. Id. 139. See infra notes 142-49 and accompanying text (describing approach whereby courts incorporate Frye standard into Rule 702). 140. See infra notes 150-63 and accompanying text (discussing hybrid approach whereby courts consider both general acceptance and relevancy). 141. See infra notes 164-77 and accompanying text (illustrating attempts by some courts to develop their own criteria for reliability). 142. 944 F.2d 476 (9th Cir. 1991). 143. This statute provides a cause of action to redress, inter alia, deprivation of constitutional rights by persons acting under color of state law. 42 U.S.C. . 1983 (1988). 144. Dang Vang v. Vang Xiong X. Toyed, 944 F.2d 476, 478 (9th Cir. 1991). 145. Id. at 480-81 (describing generally submissive behavior of women in Hmong culture). 146. Id. at 481-82 (finding no undue prejudice from testimony because of its limited scope and its direct relevance to case). 147. Id. 148. Id. at 482 149. Id. 150. 821 F.2d 1186 (6th Cir. 1987) (en banc), aff'd, 487 U.S. 931 (1988). 151. See also United States v. Gwaltney, 790 F.2d 1378, 1382 (9th Cir. 1986) (using hybrid approach to find immunobead assay sufficiently reliable technique to identify semen source and holding that technique would assist jury in assessment of evidence of civil rights deprivation involving murder and rape), cert. denied, 479 U.S. 1104 (1987). 152. United States v. Kozminski, 821 F.2d 1186, 1188 (6th Cir. 1987) (en banc), aff'd, 487 U.S. 931 (1988). Criminal prosecutions on civil rights charges require proof of specific criminal intent and guilt beyond a reasonable doubt, but otherwise involve the same substantive claims as civil actions. Se e Screws v. United States, 325 U.S. 91, 101-02 (1945) (defining "willfully" to include specific intent to deprive victim of constitutional right). 153. Kozminski, 821 F.2d at 1187. The defendants were charged with violating 18 U.S.C. . 1584 (1994), which punishes as a felony the willful holding of another person in involuntary servitude. Id. at 1187 n.1. 154. Id. at 1187. Defendants were also charged with violating 18 U.S.C. . 241 (1994), which prohibits a conspiracy "to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States." Id. at 1187 n.2. 155. The Thirteenth Amendment reads, in part: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." U.S. Const. amend. XIII, . 1. 156. Kozminski, 821 F.2d at 1187-88. 157. Id. at 1188. 158. Id. at 1194. 159. Id. at 1194-95. 160. Id. at 1194. 161. Id. 162. Id. 163. Id. at 1194-95. A concurring opinion in Kozminski cited Frye and emphasized the need to protect a defendant in a criminal case against scientific evidence which may bear an "aura of special reliability and trustworthiness," even when it is based on an unproved hypothesis which has yet to obtain any degree of acceptance in its field. Id. at 1199-1200 (Krupansky, J., concurring). A dissenting opinion urged that the Frye test should not be applicable to the testimony because it was properly categorized as "other specialized" rather than "scientific" knowledge under Rule 702, and as such, could be based on a subjective assessment of the victims and their conditions of confinement. Id. at 1215 (Guy, J., dissenting). The dissent, noting the abandonment of Frye by the Second and Third Circuits, also argued that the majority's concern with the reliability of the expert testimony could be better addressed under Rule 403, which permits the exclusion of relevant evidence if its probative value is substantially outweighed, inter alia, by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Id. at 1214-16. 164. 688 F. Supp. 1072 (E.D. Va. 1988). 165. For cases following similar approach, see Shield Club v. City of Cleveland, 647 F. Supp. 274, 283-84 (N.D. Ohio 1986) (requesting submission of specific evidence supporting theory of chemical interference with drug tests for consideration by court), rev'd on other grounds, 838 F.2d 138 (6th Cir. 1987); Wykoff v. Resig, 613 F. Supp. 1504, 1512 (N.D. Ind. 1985) (examining expert testimony on drug testing and determining that confirmed results of drug test were sufficient to support imposition of prison discipline consistent with due process). 166. Spencer v. General Elec. Co., 688 F. Supp. 1072, 1073 (E.D. Va. 1988) [hereinafter Spencer I]. 167. Id. at 1074. 168. Id. at 1076-77. 169. Id. at 1074 n.5. 170. Id. at 1075. 171. Id. at 1075-76 (quoting People v. Bledsoe, 681 P.2d 291, 300 (Cal. 1984); State v. Saldana, 324 N.W.2d 227, 230 (Minn. 1982)) (internal citations omitted). In the alternative, the court determined that the testimony had little probative value on whether the rape oc curred - therefore its aura of scientific basis rendered it unfairly prejudicial. Id. at 1076-77. The court did, however, permit the testimony on the issue of damages. Spencer I, 688 F. Supp. at 1074 n.7. A subsequent opinion indicates the court concluded that the rape did not occur. Spencer v. General Elec. Co., 697 F. Supp. 204, 212-13 (E.D. Va. 1988) [hereinafter Spencer II](holding that sexual horseplay was severe enough to constitute hostile working environment, but finding that employee did not prove that sexual assaults and rape occurred), aff'd, 894 F.2d 651 (4th Cir. 1990). 172. Spencer I, 688 F. Supp. at 1076 (questioning several nonbinding precedents that had utilized Frye to admit evidence of "rape trauma syndrome" (RTS) or "post-traumatic stress disorder" (PTSD) (citing State v. Huey, 699 P.2d 1290 (Ariz. 1985); State v. Marks, 647 P.2d 1292 (Kan. 1982); State v. Allewalt, 517 A.2d 741 (Md. 1986); State v. Black, 745 P.2d 12 (Wash. 1987))). 173. Id. 174. Id. 175. Spencer II, 697 F. Supp. at 212-13. 176. Spencer v. General Elec. Co., 894 F.2d 651, 654 (4th Cir. 1990), aff'g 697 F. Supp. 204 (E.D. Va. 1988). 177. See Fed. R. Evid. 401 (defining relevant evidence as proof which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence"). 178. 113 S. Ct. 2786 (1993). The Court passed up an earlier opportunity to resolve the conflict when it denied certiorari in Mustafa v. United States, 479 U.S. 953 (1986), denying cert. to 22 M.J. 165 (C.M.A. 1986). In that case the U.S. Court of Military Appeals held that Military Rule of Evidence 702, which is identical to Federal Rule of Evidence 702, established a much lower standard than Frye for the admission of expert testimony. See Mustafa, 22 M.J. at 168 (explaining that with passage of new rules "[n]o longer are parties to litigation 'limited to [the use of] experts in the strictest sense of the word'" (quoting Soo Line R. Co. v. Fruehauf Corp., 547 F.2d 1365, 1377 (8th Cir. 1981))). Justice White, joined by Justice Brennan, dissented from the Supreme Court's denial of certiorari, suggesting that the issue in Mustafa was an "obviously recurring and important issue." Mustafa, 479 U.S. at 953 (White, J., dissenting). In addition, the Court, with Justices White and Blackmun dissenting, denied review of an en banc decision of the Fifth Circuit in a toxic tort case that, under the Frye general acceptance standard, affirmed the exclusion of testimony by an internist and a toxicologist because the testimony was not based on the type of evidence usually relied on in cancer research. See Christopherson v. Allied Signal Corp., 112 S. Ct. 1280, 1281 (1992), denying cert. to 939 F.2d 1106 (5th Cir. 1991) (en banc). 179. Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure and the Federal Rules of Evidence, 137 F.R.D. 53, 63 (1991) [hereinafter Proposed Amendments]. 180. Id. at 156. The discussion of this proposal paralleled a popular debate on whether the integrity of the judicial process was imperiled by the attempted use of "junk science" as evidence. Compare Peter W. Huber, Galileo's Revenge 40-56 (1991) (asserting that lawyers, judges, and juries often consider unscientific evidence in tort cases) with Carnegie Commission on Science, Technology, and Government, Science and Technology in Judicial Decision Making 13 (1993) (concluding that federal courts are not being flooded with junk science). While Judge Kozinski's opinion for the Ninth Circuit in Daubert quotes from Huber for the proposition that the best test of certainty is good science, Daubert v. Merrell Dow Pharmaceuticals, Inc., 951 F.2d 1128, 1131 (9th Cir. 1991), the Supreme Court Justices' opinions in Daubert neither refer to the concept "junk science" nor cite Huber. Absent the emergence of documentary and other evidence of the history of the decision, it is difficult to determine the influence of this controversy on the certiorari grant or the decision. 181. Proposed Amendments, 137 F.R.D. at 156. 182. Id. at 157. 183. Id. at 73. 184. See Proposed Amendments to the Federal Rules of Civil Procedure, 61 U.S.L.W. 4365 (1993) (U.S. Apr. 27, 1993). 185. See id. at 4372-76 (amending rules for disclosure and discovery of expert witnesses used under Rule 702). 186. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 229 (1992). 187. See Daubert, 113 S. Ct. at 2794-97 (envisioning flexible inquiry designed to assess scientific validity and evidentiary relevance). 188. See Sanders, supra note 3, at 1389 (noting that Daubert also marked end of long controversy over Frye viability after enactment of federal rules). 189. Sanders, supra note 3, at 1393 n.24. 190. Daubert, 113 S. Ct. at 2791. 191. Id. 192. Id. 193. Id. 194. Id. 195. Id. 196. Id. at 2791-92 197. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 727 F. Supp. 570, 572 (S.D. Cal. 1989) (noting that to admit scientific evidence under Rule 702 evidence must be generally accepted in specific scientific field), aff'd, 951 F.2d 1128 (9th Cir. 1991), vacated and remanded 113 S. Ct. 2786 (1993). 198. 571 F.2d 508 (9th Cir. 1978). In Kilgus, a technology called "forward looking infrared system" (FLIR) was used against defendants who were accused of importing marijuana. United States v. Kilgus, 571 F.2d 508, 510 (9th Cir. 1978). The Ninth Circuit held that the FLIR was inadmissible and that scientific evidence must be sufficiently established to gain general acceptance in the particular field to which it belongs. Id. 199. Daubert, 727 F. Supp. at 575. 200. Id. 201. Id. 202. Id. at 572 203. Daubert v. Merrell Dow Pharmaceuticals, Inc., 951 F.2d 1128, 1131 (9th Cir. 1991), aff'g 727 F. Supp. 570 (S.D. Cal. 1989). 204. See id. at 1129 (explaining that Frye rule is imposed because expert testimony based on scientific technique could be extremely misleading to jury). 205. Id. at 1130. 206. Id.. 207. Id. at 1129-30. 208. Id. at 1131. 209. Id. 210. Id. 211. Id. at 1130. 212. Id. at 1130-31. 213. Daubert, 113 S. Ct. at 2792. 214. Id. at 2799 (Rehnquist, C.J., concurring in part and dissenting in part). 215. Id. 216. Id. Chief Justice Rehnquist, in a separate opinion joined by Justice Stevens, agreed that Frye did not survive the adoption of the rules, but disagreed that the case was an appropriate vehicle to articulate substitute standards under Rule 702. Id. at 2799-2800 (Rehnquist, C.J., concurring in part and dissenting in part). 217. See Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 163 (1988) (explaining that because Federal Rules of Evidence are "a legislative enactment," Court must use "traditional tools of statutory construction" to determine their meaning). 218. See Daubert, 113 S. Ct. at 2794. 219. Id. 220. Id. 221. Id. at 2795. 222. Id. at 2795 n.8. The Court reserved the issue of the appropriate standards to govern the admission of technical or other specialized knowledge under Rule 702. Id. at 2795 n.8. 223. Id. at 2795. 224. Id. (recognizing that it would be unreasonable to mandate that scientific testimony be certain as arguably there are no certainties in science). The Court merged the scientific concepts of validity (that the result claimed is supported by the principle or test) and reliability (that the result be obtained on a consistent basis) into the general concept of evidentiary reliability, which supports both the requirement of personal knowledge for eyewitness testimony under Rule 602 and the exceptions to the hearsay rule under Article VIII of the Federal Rules of Evidence. Id. at 2795 n.9. Thus, evidentiary reliability in the context of scientific evidence means scientific validity. See id. Justice Blackmun explained that this approach conforms to the common law principle that only the most reliable sources of information may be admitted as evidence, and appropriately serves to limit the testimony of experts who, unlike other witnesses, are permitted to offer opinions and need not have personal knowledge of the underlying data. Id. at 2796 (quoting McCormick, supra note 109, . 10, at 37). See generally Fed. R. Evid. 702, 703. 225. Daubert, 113 S. Ct. at 2795. As it has done with increasing frequency in recent terms, the Court relied on a dictionary to define legislative terms. See id. (quoting Webster's Third New International Dictionary 1252 (1986)); see also David O. Stewart, By the Book - Looking Up Law in the Dictionary, 79 A.B.A.J. 46, 46 (1993) (discussing Court's increased use of dictionary in defining legal terms). 226. Daubert, 113 S. Ct. at 2796; see also United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985) (requiring that defendant, when offering testimony of expert on eyewitness identification, proffer explanation of relevance of testimony). 227. See Daubert, 113 S. Ct. at 2795. 228. Id. This statement suggests that in some circumstances a certain amount of expert information will have to be considered in some form in order to make the relevance determination required by Rule 702. 229. See id. at 2796. The Court noted that while Frye focused on novel techniques, Rule 702 does not apply exclusively to such evidence. Id. at 2796 n.11. Well-established propositions, however, could be handily defended and some would be subject to judicial notice as "scientific law." Id. (citing Fed. R. Evid. 201). 230. Id. at 2796 & n.10 (relying on Bourjaily v. United States, 483 U.S. 171, 175-76 (1987), to assert that where admissibility of evidence turns on existence of preliminary facts, they must generally be established by preponderance of evidence). 231. Id. at 2796 n.10 (stating that court is not bound by rules of evidence in determining preliminary questions of admissibility (citing Fed. R. Evid. 104(a))). 232. See id. at 2796-97. 233. Id. 234. Id. quoting Michael D. Green, Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent Orange and Bendectin Litigation, 86 Nw. U. L. Rev. 643, 645 (1992)). 235. Id. at 2797. 235. Id. 236. Id. The Court cited with approval the reference to professional standards for spectrographic analysis in United States v. Williams, 583 F.2d 1194, 1198 (2d Cir. 1978), cert. denied, 439 U.S. 1117 (1979). Id. 238. Id. (citing United States v. Downing, 753 F.2d 1224, 1238 (3d Cir. 1985)). 239. Id. 240. Id. 241. Id. at 2797 n.12. 242. Id. (citing 3 Weinstein & Berger, supra note 116, . 702, at 702-41 to -42 (listing expert's stature, use which has been made of new technique, potential rate of error, existence of specialized literature, novelty of invention, degree of subjectivity of opinion, and extent of support within scientific community as relevant factors)). 243. Id. (citing Mark McCormick, Scientific Evidence: Defining a New Approach to Admissibility, 67 Iowa L. Rev. 879, 911-12 (1982) (discussing specific factors which should be considered in determining admissibility of novel scientific evidence)). 244. Id. (citing Symposium on Science and the Rules of Evidence, 99 F.R.D. 187, 231 (1983) (statement by Margaret Berger) suggesting that judge consider reputation of expert within scientific community, strengths of opposing views and standing of those who express them, whether expert is prepared to discuss uncertainties in techniques and conclusions, and whether both sides to controversy have "reasonably comparable access to scientific authorities")). 245. Daubert, 113 S. Ct. at 2799. 246. Id. at 2798; see also Fed. R. Evid. 703. The similarity of the Rule 703 standard to the Frye test is noteworthy and suggests that, at least where underlying facts are not admitted into evidence, a standard analogous to Frye will govern the admissibility of opinions; experts in the field must reasonably rely on the type of facts which support the opinion. 247. Id. at 2798 (citing Fed. R. Evid. 706). Rule 706(a) allows a court on its own motion or that of a party to appoint an expert witness. Fed. R. Evid. 706(a). The parties are entitled to receive a report of the expert's findings and to depose the expert. Fed. R. Evid. 706(c). The parties or the court may call on the expert to testify, and all parties may cross-examine the expert. Fed. R. Evid. 706(a). 248. Daubert, 113 S. Ct. at 2798 (citing Fed. R. Evid. 403). 249. Id. (quoting Jack B. Weinstein, Rule 702 of the Federal Rules of Evidence Is Sound; It Should Not Be Amended, 138 F.R.D. 631, 632 (1991)). But see Daniel W. Shuman, An Empirical Examination of the Use of Expert Witnesses in the Courts - Part II: A Three City Study, 34 Jurimetrics J. 193, 194 (1994) (suggesting that legal system is incapable of evaluating whether expert testimony is overstated). 250. Daubert, 113 S. Ct. at 2798; see also id. at 2799 (Rehnquist, C.J., concurring in part and dissenting in part) (noting 22 amicus briefs filed in case). The extensive amicus participation reflected the high stakes involved in the complex tort cases in which this issue arises. 251. Id. at 2798. 253. Id. 254. Id. (citing Fed. R. Civ. P. 50(a), 56). 255. Id. 256. Id. at 2798-99. 257. Id. (Rehnquist, C.J., concurring in part and dissenting in part). 258. Id. (Rehnquist, C.J., concurring in part and dissenting in part). 259. Id. (Rehnquist, C.J., concurring in part and dissenting in part). 260. Id. 261. Id. at 2800. 262. Id. 263. Compare Charles R. Richey, Proposals to Eliminate the Prejudicial Effect of the Use of the Word "Expert" Under the Federal Rules of Evidence in Civil and Criminal Jury Trials, 154 F.R.D. 537, 547 (1994) (maintaining that more "questionable scientific evidence" will be admitted under Daubert) with Note, The Supreme Court, 1992 Term-Admissibility of Scientific Evidence, 107 Harv. L. Rev. 254, 258 (1993) (arguing that similarity of Daubert factors to Frye test suggests that Daubert decision will have minimal impact). 264. Daubert, 113 S. Ct. at 2797. 265. Id. 266. Id. 267. See David L. Faigman, Mapping the Labyrinth of Scientific Evidence, 46 Hastings L.J. 555, 555 (1995) ("The single most important 'guidepost' contained in Daubert is the Court's directive to judges to actively evaluate scientific evidence.") 268. Cf. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 113 S. Ct. 1160, 1163 (1993) (disapproving heightened pleading standards for complaints in civil rights cases because courts must apply same rules as in other types of cases). 269. See infra notes 273-91 and accompanying text (providing overview of district court's discretion in admitting scientific evidence). 270. See infra notes 292-99 and accompanying text (discussing how courts have interpreted their responsibility for deciding whether certain evidence is admissible). 271. See infra notes 300-59 and accompanying text (detailing how relevant procedural rules affect court's decisionmaking process). 272. See infra notes 373-77 and accompanying text (arguing that in civil rights cases, courts should consider both traditional and non-traditional means to admit expert testimony). 273. See Hamling v. United States, 418 U.S. 87, 108 (1974) (observing that district court has wide discretion in determining whether to admit or exclude expert testimony); Lunney, supra note 3, at 141 (maintaining that Daubert gives considerable discretion to exclude expert evidence). 274. The court's discretion can be circumscribed when a controlling authority determines that a particular technique is reliable. See United States v. Johnson, 56 F.3d 947, 952 (8th Cir. 1995) (holding that district courts can judicially notice reliability of DNA profiling based on court of appeals determination under Daubert). In such circumstances, however, the court must still determine whether the technique was properly performed and must assess the reliability of a new technique offered for the same purpose. Id. 275. See, e.g., United States v. Alzanki, 54 F.3d 994, 1005 (1st Cir. 1995) ("We review challenges to expert-witness qualification only for manifest abuse of discretion."); EEOC v. O & G Spring & Wire Forms Specialty Co., 38 F.3d at 872, 876 (7th Cir. 1994), cert. denied , 115 S. Ct. 1270 (1995) ("Determining the validity and value of statistical evidence is firmly within the discretion of the district court, and we will reverse its findings only if they are clearly erroneous."); Bradley v. Brown, 42 F.3d 434, 436-37 (7th Cir. 1994) ("We first undertake a de novo review of whether the district court properly followed the framework set forth in Daubert . . . . Provided the district court adhered to Daubert's parameters, we will not disturb the district court's findings unless they are manifestly erroneous."). But see Cook v. American Steamship Co., 53 F.3d 733, 738 (6th Cir. 1995) (adopting, in negligence case, three-tiered standard of review for admission of expert evidence whereby (1) determination of qualifications and tests or experiments conducted is reviewed on appeal for clear error; (2) determination that opinion qualifies as scientific, technical, or other specialized knowledge is an issue of law subject to de novo review in the court of appeals; and (3) determination whether opinion will assist trier of fact is decision on relevance that appellate court reviews for abuse of discretion). 276. See Wilson v. City of Chicago, 6 F.3d 1233, 1238 (7th Cir. 1993) (excluding pathologist's expert testimony on ground that pathologist did not have requisite knowledge to establish effects of electroshock treatments on body or psyche), cert. denied, 114 S. Ct. 1844 (1994). 277. See Watkins v. Schriver, 52 F.3d 769, 771 (8th Cir. 1995) (excluding neurologist's expert testimony because he was not qualified as expert in either accident reconstruction or forensic medicine). 278. Id. 279. Daubert, 113 S. Ct. at 2795 (emphasis added). 280. If Daubert is read in this manner, it would abrogate as to expert evidence the rule of waiver of error for failure to object to its admission. Under normal circumstances, Federal Rule of Evidence 103(a)(1) requires a party to object or to move to strike from the record evidence, in order to later challenge its admission on appeal. Fed. R. Evid. 103(a)(1). The intent is to inform the trial court of the asserted error so that a ruling may be made and inappropriate evidence excluded from the record. McCormick, supra note 109, . 52, at 205. The rule places the responsibility for objecting to improper evidence on the parties, not on the court. Id. at 211. While appellate courts may, pursuant to Federal Rule of Evidence 103(d), consider plain error as to which no objection had been made, they do so only when the circumstances are egregious (typically in a criminal case) and a substantial right is prejudiced. Id. 281. Daubert, 113 S. Ct. at 2795. 282. Id. at 2796. 283. See Roger Haydock & John Sonsteng, Trial 425 (1990) (recognizing that some jurisdictions require examining attorney to request that judge accept witness as expert). 284. See Berry v. City of Detroit, 25 F.3d 1342, 1351 (6th Cir. 1994), cert. denied, 115 S. Ct. 902 (1995). In Berry, the court wrote:
[T]his court has counseled against putting some general seal of approval on an expert after he has been qualified but before any questions have been posed to him. The issue with regard to expert testimony is not the qualifications of a witness in the abstract, but whether those qualifications provide a foundation for a witness to answer a specific question.
Id. (citing United States v. Kozminski, 821 F.2d 1186 (6th Cir. 1987), aff'd in part and remanded in part, 487 U.S. 931 (1988)). 285. Daubert, 113 S. Ct. at 2799; cf. Margaret A. Berger, Evidentiary Framework, in Federal Judicial Center, Reference Manual on Scientific Evidence 50 (1994) [hereinafter F.J.C. Manual] ("While courts are unlikely to undertake the inquiry envisioned by Daubert whenever scientific evidence is proffered, it is not yet clear when they must do so."). 286. A court of appeals may consider "plain errors affecting substantial rights" even though no objection was made in the district court. Fed. R. Evid. 103(d). 287. Daubert, 113 S. Ct. at 2798 (quoting Jack B. Weinstein, Rule 702 of the Federal Rules of Evidence Is Sound: It Should Not Be Amended, 138 F.R.D. 631, 632 (1991)). 288. Fierro v. Gomez, 865 F. Supp. 1387 (N.D. Cal. 1994). 289. Id. at 1395 n.7 (explaining that court must put evidence through three-part admissibility test under Rules 104(a), 702, and 403). 290. Id. 291. The First Circuit, in a personal injury action brought by a daughter against her father, adopted an awkward middle ground. Hoult v. Hoult, 57 F.3d 1, 4 (1st Cir. 1995). Noting the obligatory language in the Supreme Court's opinion, the First Circuit read Daubert to "instruct district courts to conduct a preliminary assess ment of the reliability of expert testimony, even in the absence of an objection." Id. Nonetheless, the panel declined to limit the discretion of the district court by requiring it "sua sponte, to make explicit on-the-record rulings regarding the admissibility of expert testimony." Id. 292. See infra notes 293-96 and accompanying text (discussing various approaches courts have taken in fulfilling gatekeeping duty); see also Linda Sandstrom Simard & William G. Young, Daubert's Gatekeeper: The Role of the District Judge in Admitting Expert Testimony, 68 Tul. L. Rev. 1457, 1458 (1994) (asserting that Daubert opinion contains guidance for judges in determining gatekeeping duty on case-by-case basis). 293. Daubert, 113 S. Ct. at 2795; see, e.g., Tocci v. Town of Lisbon, No. CIV.A. 92-601-SD, 1994 WL 558615, at *1 (D.N.H. Oct. 6, 1994) (allowing testimony of former police chief regarding police procedure); Janopoulos v. Harvey L. Walner & Assocs., 866 F. Supp. 1086, 1096 (N.D. Ill. 1994) (allowing testimony of documents expert who relied on opinions of second expert in sexual harassment case); Fierro v. Gomez, 865 F. Supp. 1387, 1395 n.7 (N.D. Cal. 1994) (allowing testimony on effects of hydrocyanic gas on human body in action challenging constitutionality of execution by lethal gas); Webb v. Hyman, 861 F. Supp. 1094, 1114 (D.D.C. 1994) (allowing psychologist's testimony regarding emotional injuries from sexual harassment). 294. Rosado v. Deters, 5 F.3d 119, 124 n.9 (5th Cir. 1993) (quoting Daubert, 113 S. Ct. at 2795). 295. Usher v. Lakewood Eng'g & Mfg. Co., 158 F.R.D. 411, 413 (N.D. Ill. 1994). 296. Wilson v. City of Chicago, 6 F.3d 1233, 1238-39 (7th Cir. 1993), cert. denied, 114 S. Ct. 1844 (1994); see also Berry v. City of Detroit, 25 F.3d 1342, 1349 (6th Cir. 1994) (observing that "[t]he problem that 'junk science' has caused in the court rooms has not gone unnoticed. The Supreme Court recently revisited the controversy that has swirled around expert testimony for the last several years.") (citation omitted), cert. denied, 115 S. Ct. 902 (1995). 297. Cf. In re Primus, 436 U.S. 412, 431 (1978) (holding that First Amendment protects ACLU attorney's solicitation of clients to pursue constitutional claims as means of political expression and association); NAACP v. Button, 371 U.S. 415, 428-29 (1963) (holding that First Amendment protects NAACP's solicitation of clients for litigation to eliminate segregation). 298. A distinguishing characteristic of the civil rights movement in this country is the recognition that ordinary citizens can, with appropriate organizational support, have recourse to the courts in order to change the law and social conditions. See generally Juan Williams, Eyes on the Prize : America's Civil Rights Years, 1945-1965, at 9-35 (1988) (discussing effect of organizational support on school desegregation). The evidence in civil rights cases may thus be considered political speech because it contributes in this way to self-government in our democratic society. See generally Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People 9-28 (1960) (discussing importance of political speech in democracy). 299. As Chief Justice Marshall explained many years ago, "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." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). 300. See Margaret A. Berger, Procedural Paradigms for Applying the Daubert Test, 78 Minn. L. Rev. 1345, 1352-86 (1994) (arguing that procedural setting will affect and mediate Daubert's impact in both criminal and civil cases). 301. See infra Part IV.D.1-.4 (discussing various points in proceedings at which gatekeeping issues can be raised). 302. U.S. Const. amend. IV. The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Id. The Fourth Amendment is made applicable to the states and their political subdivisions by the Fourteenth Amendment , which provides, in relevant part: "[N]or shall any State deprive any person of life, liberty or property without due process of law . . . ." U.S. Const. amend XIV, § 1. See Mapp v. Ohio, 367 U.S. 643, 655 (1961) (holding that "all evidence obtained by searches and seizures in violation of the Constitution is . . . inadmissible in a state court"). 303. See National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 (1989) (holding that drug-testing program must meet reasonable ness requirement of Fourth Amendment but that warrant is not necessary for search to be reasonable); Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 633 (1989) (holding that warrantless drug-testing meets Fourth Amendment reasonableness requirement because compelling governmental interest in regulation outweighed employees' privacy concerns); Anonymous Fireman v. City of Willoughby, 779 F. Supp. 402, 418 (N.D. Ohio 1991) (upholding mandatory HIV test of fire fighter-paramedic). 304. The 1993 amendments affected Rules 1, 4, 5, 11, 12, 15, 16, 26, 28-34, 36-38, 50, 52-54, 58, 71A, 72-76, and enacted new Rule 4.1. See Rules Announced April 22, 1993, 61 U.S.L.W. 4365 (U.S. Apr. 27, 1993) (announcing amendments to Federal Rules of Civil Procedure). 305. Numerous district courts have exercised the option provided in many of the 1993 amendments to specify procedures different from those specified in the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 83 (authorizing each district court to make and amend rules governing its practice). Often these local procedures were adopted by the courts to effect experimental programs mandated by the Civil Justice Reform Act of 1990. Pub. L. No. 101-650, õ 104, 104 Stat. 5089, 5097 (1990) (codified at 28 U.S.C. § 471 note (1988 & Supp. V. 1993). See Lee Loevinger, Science as Evidence, 35 Jurimetrics J. 153, 161-62 n.53 (1995) (noting that 26 federal district courts have opted out of mandatory disclosure provisions of Rule 26(a)(1), and 11 districts have opted out of the mandatory disclosure provisions of Rule 26(a)(2)). 306. See Fed. R. Civ. P. 16(b) (requiring courts to issue order "as soon as practicable," but in any event within 90 days after defendant appears in litigation or 120 days after complaint has been served). 307. See Fed. R. Civ. P. 26(f) (requiring prompt meeting of parties, no later than 14 days before scheduling order is due or scheduling conference is held). 308. See Fed. R. Civ. P. 26(f) (requiring parties to develop proposed discovery plan); see also Fed. R. Civ. P. 26(a)(1)-(3) (establishing duty to disclose information including expert testimony). 309. See Fed. R. Civ. P. 26(f) (requiring submission of written report to court within 10 days after parties meet). A new Form 35 has been added to the Appendix to the Rules to illustrate the type of report that is expected and serve as a checklist for the meeting. See Fed. R. Civ. P. 26(f) advisory committee's note to the 1993 amendment. 310. Fed. R. Civ. P. 16(b). 311. See Fed. R. Civ. P. 26(f) (requiring parties to discuss "the nature and basis of their claims and defenses" at meeting). 312. See Loevinger, supra note 305, at 161-62 n.53 (reporting that only 11 of 94 districts have opted not to implement the 1993 amendments with respect to expert testimony). 313. Fed. R. Civ. P. 26(a)(2)(A). 314. Fed. R. Civ. P. 26(a)(2)(B). 315. Fed. R. Civ. P. 26(a)(2)(C). 316. Fed. R. Civ. P. 26(f)(1). 317. See Fed. R. Civ. P. 26(a)(2)(C) (providing timing requirements for disclosure of expert testimony); Thomas A. Wiseman, Jr., Judging the Expert 55 Ohio St. L.J. 1105, 1110 (1994) (suggesting that counsel attending meeting of parties "should insist upon early disclosure of experts"); see also Berger, supra note 300, at 1369-70 (discussing usefulness of reports that testifying experts are required to furnish in informing parties of "the issues that warrant further exploration during the deposition of the expert"). 318. Fed. R. Civ. P. 26(f)(2). 319. Fed. R. Civ. P. 26(f)(3). 320. Id.; see also Fed. R. Civ. P. 26(a)(2) (discussing requirements for disclosure of expert testimony); Fed. R. Civ. P. 26(b)(4) (setting forth scope and limits of discovery with respect to experts). 321. Fed. R. Civ. P. 26(b)(4). 322. Fed. R. Civ. P. 26(e)(1). 323. Fed. R. Civ. P. 33(a). This limit may be modified by court order or written stipulation by the parties. Id. 324. Fed. R. Civ. P. 30(a)(2)(A). 325. Fed. R. Civ. P. 26(b)(4)(A). 326. Inasmuch as the trial court "must make findings of fact on the reliability of complicated scientific methodologies which can decide the case, it is important that each side have an opportunity to depose the other side's experts in order to develop strong critiques and defenses of their expert's methodologies." In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 739 (3d Cir. 1994) (emphasizing importance of expert discovery), cert. denied sub nom. General Elec. Co. v. Ingram, 115 S. Ct. 1253 (1995). 327. Fed. R. Civ. P. 26(f)(4); see also Fed. R. Civ. P. 16(b) (stating that judge shall enter scheduling order after receiving report). 328. Courts must enter a scheduling order that limits the time to file motions and to complete discovery. Fed. R. Civ. P. 16(b)(2)-(3). The order may include modifications of the times for mandatory disclosures under Rule 26(a) and supplementation of disclosures and discovery under Rule 26(e)(1) and of the extent of discovery to be permitted. Fed. R. Civ. P. 16(4). The order may also set the dates for pretrial conferences and trial. Fed. R. Civ. P. 16(b)-(5). In addition, the court may enter an order addressing any other appropriate matters in the case. Fed. R. Civ. P. 16(b)(6). 329. Fed. R. Civ. P. 16(c)(4). One circuit court in a products liability case has read this provision and the amendments to Rule 26 to "require an early and full evaluation" of evidentiary problems under Daubert. Sorenson v. Shaklee Corp., 31 F.3d 638, 648 n.16 (8th Cir. 1994); see also William J. Schwarzer, Management of Expert Evidence, in F.J.C. Manual, supra note 285, at 13 ("[T]he judge should raise the subject of prospective expert evidence at the conference and begin to explore the issues bearing on it."). 330. Fed. R. Civ. P. 16(c)(4) advisory committee's note to 1993 amendment. 331. See Usher v. Lakewood Eng ' g & Mfg. Co., 158 F.R.D. 411, 412-14 (N.D. Ill. 1994) (granting protective order against performance of psychological tests under Rule 35 to assist defendant's expert in preparing testimony for trial in employment discrimination case). 332. Daubert, 113 S. Ct. at 2796 & n.10.] 333. Id. 334. Id.; see also In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 739 (3d Cir. 1994) ("[J]udge at an in limine hearing must make findings of fact on the reliability of complicated scientific methodologies . . . ."). 335. See Fed. R. Civ. P. 43(e) (discussing presentation of evidence on motions); Fed. R. Evid. 104(c) (discussing hearings on preliminary matters). But cf. Fed. R. Civ. P. 16(c) (stating that consideration may be given to limitations of restrictions on use of expert testimony at pretrial conference). 336. See infra Parts V-VI (discussing elements of gatekeeping in federal civil rights actions); see also Joe S. Cecil & Thomas E. Willging, Accepting Daubert's Invitation: Defining a Role for Court-Appointed Experts in Assessing Scientific Validity, 43 Emory L.J. 995, 1020-21 (1994) (arguing that courts should identify need for appointed expert early in case to avoid delaying trial). 337. Black's Law Dictionary 1013 (6th ed. 1990). Though the Federal Rules of Evidence do not expressly authorize these rulings, the practice finds support in the district court's "inherent authority to manage the course of trials." Luce v. United States, 469 U.S. 38, 41 n.4 (1984); see also Berger, supra note 300, at 1373-75 (discussing procedures of motion in limine). 338. See, e.g., Ayers v. Robinson, 887 F. Supp. 1049, 1051 (N.D. Ill. 1995) (granting motion to exclude expert testimony on hedonic damages); Medley v. Turner, No. 93-C-3 22, 1995 WL 296942, at *3 (N.D. Ill. May 12, 1995) (granting motion to prohibit doctors from testifying on post-traumatic stress disorder and financial matters); Washington v. Vogel, 880 F. Supp. 1545 (M.D. Fla. 1995) (granting motion to exclude statistical evidence in . 1983 action); Dunn v. Hercules, Inc., No. CIV.A.93-4175, 1995 WL 66828, at *3 (E.D. Pa. Feb. 15, 1995) (denying motion to exclude testimony regarding statistical evidence of age discrimination for purposes of disparate treatment claim); Tocci v. Town of Lisbon, No. CIV.A.92 601 SD, 1994 WL 558615, at *1 (D.N.H. Oct. 6, 1994) (denying motion to exclude testimony of former police chief regarding police procedure); Janopoulos v. Harvey L. Walner & Assocs., 866 F. Supp. 1086, 1096- 97 (N.D. Ill. 1994) (denying motion to exclude testimony of documents examiner who performed tests on documents in sex harassment and retaliatory discharge case); Flavel v. Svedala Indus., Inc., 875 F. Supp. 550, 557-58 (E.D. Wis. 1994) (denying motion to exclude testimony of statistical expert and industrial psychologist in age discrimination case); Martincic v. Urban Redev. Auth., 844 F. Supp. 1073, 1078 (W.D. Pa. 1994) (denying motion to admit statistical report in age discrimination case because of "insufficient mathematical rigor and unconvincing factual predicate"); Gier v. Educational Serv. Unit No. 16, 845 F. Supp. 1342, 1353 (D. Neb. 1994) (granting motion to exclude testimony of psychiatrist and two psychologists due to lack of showing that techniques were reliable); Flores v. Puerto Rico Tel. Co., No. CIV.A.89 1697(HL)(JA), 1994 WL 52570, at *2 (D.P.R. Jan. 19, 1994) (denying motion to exclude ophthalmologist ' s testimony regarding glaucoma in handicap discrimination case); Doe v. TAG, Inc., No. 92C7661, 1993 WL 484212, at *1 (N.D. Ill. Nov. 18, 1993) (denying motion to exclude physician testimony regarding plaintiff's current and future medical condition, but granting motion to exclude expert testimony on hedonic damages in foster home abuse case). 339. See Marozsan v. United States, 849 F. Supp. 617, 635-36 (N.D. Ind. 1994) (holding that evidence must be admissible before court can consider it in motion for summary judgment). 340. Fed. R. Civ. P. 56(c). See Doran v. McGinnis, 158 F.R.D. 383, 388 (E.D. Mich. 1994) (holding that without scientific evidence to support "bizarre and illusory "claims plaintiff cannot rebut summary judgment movant's showing of absence of genuine issue of fact); Marozsan , 849 F. Supp. at 636 (stating that affidavit inadmissible under evidence rules "cannot be considered in determining the existence of a triable issue of fact"). But see Berger, supra note 300, at 1381 (suggesting that court should conduct in limine proceeding prior to ruling on summary judgment to develop adequate record). Of course, the court may find that the disputed evidence is admissible, but insufficient under Rule 56 to raise a genuine issue of material fact, and grant summary judgment. See Sanders, supra note 3, at 1412 (discussing paths courts take when faced with non-epidemiological evidence, either refusing to allow parties to introduce it or finding it insufficient to survive directed verdict or summary judgment motion). 342. See Watkins v. Schriver, 52 F.3d 769, 771-72 (8th Cir. 1995) (affirming exclusion of neurologist's proffered testimony on how injury occurred in police encounter); Wilson v. City of Chicago, 6 F.3d 1233, 1238-39 (7th Cir. 1993) (affirming trial judge's decision to exclude pathologist's testimony on torture where pathologist did not adequately establish his credentials as expert in that field), cert. denied, 114 S. Ct. 1844 (1994); Rosado v. Deters, 5 F.3d 119, 124 (5th Cir. 1993) (affirming district court's exclusion of expert testimony on accident reconstruction where witness failed to demonstrate adequate level of knowledge in that area). 343. See generally McCormick, supra note 109, . 52 (discouraging use of motion in limine to make advance objections to proffered expert testimony where decision of motion requires development of factual background at trial). 344. Estate of Sinthasomphone v. City of Milwaukee, 878 F. Supp. 147, 152 (E.D. Wis. 1995) (deferring admissibility ruling on economic testimony regarding value of life of murder victim); see Dunn v. Hercules, Inc., No. CIV.A.93-4175; 1995 WL 66828, at *4 (E.D. Pa. Feb. 15, 1995) (deferring admissibility ruling on statistical evidence in disparate impact claim until evidence presented at trial establishes sufficient record); see also Case v. Unified Sch. Dist. No. 233, 895 F. Supp. 1463, 1471-72 (D. Kan. 1995) (denying, in First Amendment case, plaintiffs' motion to exclude testimony of defendants' psychiatrist and psychologist in support of removal of book Annie on My Mind from school library, but indicating that plaintiffs could renew their motion at trial, when court would "be better able to rule on the relevance of the testimony" and further evaluate it under Daubert). 345. See Fed. R. Civ. P . 16(c)(14) (authorizing court to enter appropriate orders with respect to these procedures under Rule 50(a) in jury trials and 52(c) in bench trials). These Rules permit judgment as a matter of law when a party has been fully heard on a claim or a defense and there is no legally sufficient evidentiary basis for the trier of fact to find for the party on that issue. See Scales v. George Washington Univ., No. 89-0796-LFO, 1993 WL 304016, at *7 (D.D.C. July 27, 1993) (citing Daubert to exclude statistics and finding that proof of racial motive was insufficient to preclude judgment as matter of law), aff'd, 44 F.3d 1031 (D.C. Cir. 1994), cert. denied, 115 S. Ct. 2249 (1995). 346. Fed. R. Civ. P. 50(a); see also Berry v. City of Detroit, 25 F.3d 1342, 1350-56 (6th Cir. 1994) (holding that proposed testimony of former sheriff on failure to discipline officers did not afford sufficiently reliable basis under Daubert to prove causation of shooting and remanding case to district court for entry of judgment under Federal Rule 50(a)), cert. denied, 115 S. Ct. 902 (1995). 347. See Fed. R. Civ. P. 52(c) ("If during a trial without a jury . . . the court finds against [a] party on [an] issue, the court may enter judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue . . . ."). 348. Fed. R. Civ. P. 52(a) ("In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon . . . ."); Fierro v. Gomez, 865 F. Supp. 1387, 1393-1404 (N.D. Cal. 1994) (assessing expert testimony and other evidence presented at trial regarding lethal gas as method of execution and entering judgment). 349. See Webb v. Hyman, 861 F. Supp. 1094, 1113-15 (D.D.C. 1994) (denying defendant ' s motion for new trial where court properly admitted testimony of psychologist to show emotional injuries from sexual harassment); Parkway Garage, Inc. v. City of Philadelphia, No. CIV.A.90- 7752, 1994 WL 412430, at *3 (E.D. Pa. Aug. 3, 1994) (denying defendant ' s motion for new trial where testimony of finance expert offered to show effect on commuters of temporary closing of parking garage was speculative and therefore properly excluded at trial). 350. Fed. R. Civ. P. 50(b). 351. Fed. R. Civ. P. 52(b). 352. See EEOC v. O & G Spring & Wire Forms Specialty Co., 38 F.3d 872, 884 (7th Cir. 1994) (rejecting request that fees be awarded against United States under Equal Access to Justice Act because anecdotal evidence supported EEOC's employment discrimination claim (even though it was based on severely flawed statistical comparison) and the claim was, therefore, substantially justified within meaning of Act), cert. denied, 115 S. Ct. 1270 (1995); Evans v. Philadelphia Hous. Auth., No. 93-5547, 1995 WL 154872, at *5-6 (E.D. Pa. Mar. 31, 1995) (excluding results of survey that did not comply with generally accepted methods on application for civil rights attorneys' fees). 353. See supra note 51 (discussing testing of children in Briggs). 354. See Fed. R. Civ P. 12(b) (listing grounds supporting motion to dismiss case). 355. See Fed. R. Civ. P. 26(c) (authorizing issuance of protective orders to prohibit discovery involving "undue burden or expense"). 356. Applicable statutes of limitations narrow the opportunity for scientific experimentation prior to suit. Litigation schedules may also constrain the parties' development of this evidence. See Daubert, 113 S. Ct. at 2798-99 (noting that court rules are "designed not for the exhaustive search for cosmic understanding but for the particular ized resolution of legal disputes"). 357. See supra notes 48-52 and accompanying text (discussing controversy surrounding tests in Briggs). 358. Fed. R. Civ. P. 1. 359. See Daubert, 113 S. Ct. at 2798 ("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."); cf. Buckley v. Fitzsimmons, 20 F.3d 789, 796 (7th Cir. 1994) (noting that allowing practitioner of junk science to testify may result in "devastating cross examination"), cert. denied, 115 S. Ct. 740 (1995). 360. Fed. R. Evid. 702. 361. Fed. R. Evid. 702 advisory committee's note. 362. See generally Christopher P. Murphy, Note, Experts, Liars, and Guns for Hire: A Different Perspective on the Qualifications of Technical Expert Witnesses, 69 Ind. L.J. 637, 639-47 (1994) (discussing qualifications of engineers and other technical witnesses); Simard & Young, supra note 292, at 1466-67 (discussing types of expertise). 363. Daubert, 113 S. Ct. at 2795. 364. See Murphy, supra note 362, at 639-43 (discussing nature of technical evidence and expert testimony). The Advisory Committee indicated that the technical category is intended to include witnesses "such as bankers or landowners testifying to land values." Fed. R. Evid. 702 advisory committee's note. 365. See Daubert, 113 S. Ct. at 2795 n.8 ("Our discussion is limited to the scientific context because that is the nature of the expertise offered here."). 366. See id. at 2797 n.12 (noting variations for assessing reliability that "may well have merit"). 367. Cf. id. at 2796 n.11 ("[T]heories that are so firmly established as to have attained the status of scientific law . . . properly are subject to judicial notice under Fed. Rule Evid. 201."). 368. See Edward J. Imwinkelried, The Next Step After Daubert: Developing a Similarly Epistemological Approach to Ensuring the Reliability of Nonscientific Expert Testimony, 15 Cardozo L. Rev. 2271, 2283-94 (1994) (surveying approaches and concluding that assessment of reliability of nonscientific opinion should be based on quality and quantity of experience supporting the opinion). 369. Cf. Officer v. Teledyne Republic, 870 F. Supp. 408, 410 (D. Mass. 1994) ("While Daubert's principles have valuable application in determining admissibility of controversial and novel scientific hypotheses, they have less use in fields like design engineering where 'general acceptance ' is the norm, not the exception."). 370. Cf. Thomas v. Newton Int'l Enters., 42 F.3d 1266, 1270 n.3 (9th Cir. 1994) (ruling that experienced longshoreman's testimony that unguarded ship ladder was unreasonably dangerous need only be linked with specialized knowledge or skills to be admissible in negligence action); Simard & Young, supra note 292, at 1474 (arguing that when theory develops informally, court should consider its practical applications to determine reliability). 371. Berry v. City of Detroit, 25 F.3d 1342, 1349 (6th Cir. 1994), cert. denied, 115 S. Ct. 902 (1995). 372. Id. at 1350-52. The Sixth Circuit read the trial testimony as failing to establish the witness' qualification with respect to police discipline. Id. at 1349. 373. See Daubert, 113 S. Ct. at 2795. 374. Id. at 2797-98. 375. See id. at 2798. 376. See Fed. R. Evid. 706 (providing that court on its own motion or on that of any party may appoint expert witness); see also Daubert, 113 S. Ct. at 2798 (noting that Rule 706 gives courts discretion to appoint its own expert); infra Part V.D (discussing use of court-appointed experts). 377. See Fed. R. Civ. P. 53(a) (providing that "court in which any action is pending may appoint a special master therein . . . 'master' includes a referee, an auditor, an examiner, and an assessor"); see also infra Part VI.B (discussing use of special master for novel evidentiary issues). 378. See Fed. R. Evid. 702. 379. Compare Daubert, 113 S. Ct. at 2796 (noting that "fit" between proffered expert testimony and facts in case may not always be obvious) with Daubert, 43 F.3d 1311, 1321 n.17 (9th Cir. 1995) (reading Supreme Court's decision as directing that trial courts "exclude proffered scientific evidence under Rule 702 . . . unless they are convinced that it speaks clearly and directly to an issue in dispute in the case"). 380. Daubert, 113 S. Ct. at 2796. 381. United States v. Alzanki, 54 F.3d 994, 1006 (1st Cir. 1995). 382. Id. 383. Fierro v. Gomez, 865 F. Supp. 1387, 1395-96 n.7 (N.D. Cal. 1994) (finding that California Penal Code . 3604 imposing death by lethal gas administration violated Eighth and Fourteenth Amendments). 384. Flores v. Puerto Rico Tel. Co., No. CIV. 89-1697(HL)(JA), 1994 WL 52570, at *1-2 (D.P.R. Jan. 19, 1994). 385. Flavel v. Svedala Indus., Inc., 875 F. Supp. 550, 558 (E.D. Wis. 1994) (denying motion to exclude expert testimony because age discrimination may arise out of "unconscious application" of stereotypes rather than deliberate effort to remove older employees from workplace (quoting Syvock v. Milwaukee Boiler Mfg. Co., 665 F.2d 149, 155 (7th Cir. 1981))). 386. Doe v. TAG, Inc., No. 92C7661, 1993 WL 484212, at *2-3 (N.D. Ill. Nov. 18, 1993) (noting that economic testimony regarding enjoyment of life lacked proper foundation and was unreliable). 387. Id. at *3. 388. Ayers v. Robinson, 887 F. Supp. 1049, 1061-62 (N.D. Ill. 1995). 389. Id. at 1064. 390. Daubert, 113 S. Ct. at 2796-97. 391. Id. at 2796; see also Flavel v. Svedala Indus., Inc., 875 F. Supp. 550, 557 (E.D. Wis. 1994) (admitting expert testimony regarding use of multivariate analysis because it had been tested and was subjected to peer review). 392. Professor Berger has noted this problem:
A fundamental question that the courts will have to address after Daubert is whether the Supreme Court's opinion applies to the social sciences or is limited to the physical and "hard" sciences. Are experts in such fields as psychology, economics, sociology, and political science testifying about "scientific knowledge" so that the Daubert standard of admissibility applies? If Daubert applies, how does a court determine whether an expert opinion grounded in the social sciences rests on a valid methodology?
Berger, supra note 285, at 84 (internal citations omitted); see also Michael H. Gottesman, <1>Admissibility of Expert Testimony After Daubert: The "Prestige Factor", 43 Emory L.J. 867, 875 (1994) (explaining that testing is often inappropriate, particularly for psychiatric testimony). 393. On remand in Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir. 1995), the Ninth Circuit expressed skepticism regarding scientific testing for litigation purposes. Id. at 1317. The court considered pre-litigation research as "the most persuasive basis for concluding that the opinions . . . were derived by the scientific method/" particularly if the research was subject to peer review. Id. Litigation research was, in its view, the least satisfactory method for validating a theory or technique. Id. 394. See, e.g., Berry v. City of Detroit, 25 F.3d 1342, 1350 (6th Cir. 1994) (finding that plaintiff's proposed expert had not tested his disciplinary theory during his tenure as sheriff), cert. denied, 115 S. Ct. 902 (1995); Fierro v. Gomez, 865 F. Supp. 1387, 1395 n.7 (N.D. Cal. 1994) (noting that state's expert on cyanide had developed his theories using animal experiments, most of which were "of questionable probative value to the facts here"). 395. Gier v. Educational Serv. Unit No. 15, 845 F. Supp. 1342, 1343-44 (D. Neb. 1994) (noting that great difficulty of assessing reliability of psychological testimony exists in child abuse cases). 396. See 28 U.S.C. . 636(c) (1988 & Supp. V 1993) (allowing parties to consent to having specially designated U.S. magistrate hear jury or non-jury civil proceedings). 397. See Gier, 845 F. Supp. at 1343-44 (moving to exclude expert testimony because of insufficient showing of reliability). 398. Id. at 1344-47. 399. Id. at 1348. 400. Id. at 1344 (quoting Daubert, 113 S. Ct. at 2796-97). 401. Id. at 1348 (quoting State v. Foret, 628 So. 2d 1116, 1125 (La. 1993)). 402. See id. at 1350 (conceding that "psychological conclusions are not susceptible to 'proof' in a sense that proof is possible with the physical sciences"). 403. See id. at 1349. 404. See Gottesman, supra note 392, at 875 (arguing that Daubert test is inappropriate for assessing reliability of psychological testimony); see also Berger, supra note 285, at 87-88 (describing split in authority with respect to psychological syndrome evidence including cases (1)excluding all such testimony as lacking empirical validation, (2)allowing syndrome testimony to rebut argument that victim did not display symptoms, (3)permitting experts who inter viewed or treated victim to testify as to typical behavior of victims and offer comparison, and (4)allowing psychological syndrome evidence in party's case in chief because "juries are capable of evaluating soft evidence for what it is worth"). 405. Daubert, 113 S. Ct. at 2797. 406. Id. Some commentators have suggested that this factor is arbitrary, because experts ultimately reject much of what is published in some fields. See Robert F. Blomquist, The Dangers of "General Observations" on Expert Scientific Testimony: A Comment on Daubert v. Merrell Dow Pharmaceuticals, Inc., 82 Ky. L.J. 703, 727 (1993-94); see also David E. Berstein, The Admissibility of Scientific Evidence After Daubert v. Merrell Dow Pharmaceuticals, Inc., 15 Cardozo L. Rev. 2139, 2151 (1994) (observing that "[t]he equality of the peer reviews is more significant than the fact that a paper has been peer reviewed"); Brian Stuart Koukoutchos, Solomon Meets Galileo (And Isn't Quite Sure What to Do with Him), 15 Cardozo L. Rev. 2237, 2246 (1994) ("Publication in a peer-reviewed scientific journal is a lousy litmus test for admissibility in a court of law."). This argument misses the mark, however, because the issue at this stage is whether the theory is worthy of consideration, a concern that this factor directly addresses. See Poulter, supra note 3, at 1323 (commenting that review for publication assesses facial validity and consistency of reasoning with other sciences). 407. See Fierro v. Gomez, 865 F. Supp. 1387, 1395 n.7, 1397-99 (N.D. Cal. 1994). 408. See id. at 1395 n.7 (noting that medical treatises had high degree of acceptance in relevant scientific community); see also Flavel v. Svedala Indus., Inc., 875 F. Supp. 550, 557 (E.D. Wis. 1994) (noting that multivariate analysis had been subjected to peer review). 409. See Gier v. Educational Serv. Unit No. 15, 845 F. Supp. 1342, 1348 (noting concern about "criticism attacking . . . [symptomology] as an accurate indicator of whether a child has been sexually abused" (quoting State v. Cressey, 628 A.2d 696, 700 (N.H. 1993))). 410. See Berry v. City of Detroit, 25 F.3d 1342, 1350 (6th Cir. 1994) (noting that former sheriff could cite no peer review or publication of his theory on police practices and failed to produce writings on jail administration), cert. denied, 115 S. Ct. 902 (1995); see also Daubert, 43 F.3d at 1318 n.9 (noting that plaintiffs' experts had extensive publications and concluding that their unwillingness or inability to publish their work on Bendectin, which "if supported by sound methodology, would doubtless be greedily devoured by the machinery of peer review," undermined claim that their theories were scientific); David L. Faigman et al., 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, 1829 (1994) (commenting that absence of peer review is "a definite warning sign" that science is not valid); Susan Scott & Lynne Anne Anderson, Admissibility of Scientific Evidence: Proposed Implementation of the Guidelines of Daubert and Landrigan under the Newly Adopted New Jersey Rules of Evidence, 20 Rutgers Computer & Tech. L.J. 1, 24 (1994) (arguing that courts should inquire about reasons for failure to seek peer review in some circumstances). 411. Daubert, 113 S. Ct. at 2797; see also Faigman, supra note 410, at 1834 (suggesting that "a finding that a particular lab has a significant error rate should render the lab's data suspect"). 412. See Bert Black et al., Science and the Law in the Wake of Daubert: A New Search for Scientific Knowledge, 72 Tex. L. Rev. 715, 732 (1994) (stating that error rate has little application to matters requiring complex reasoning); Gottesman, supra note 392, at 875 (noting that error rate cannot be determined in psychology); Askowitz & Graham, supra note 4, at 2079-80 (asserting that Daubert factors are not easily applied to social science evidence regarding child abuse); Clifton T. Hutchinson & Danny S. Ashby, Daubert v. Merrell Dow Pharmaceuticals, Inc., Redefining the Bases for Admissibility of Expert Scientific Testimony, 15 Cardozo L. Rev. 1875, 1895 (1994) (noting error rate applies to "any systematic procedure used to accomplish a scientific task," but does not apply to theories). 413. Usher v. Lakewood Eng ' g & Mfg. Co., 158 F.R.D. 411, 413 (N.D. Ill. 1994). 414. Id. 415. Id. at 412-14 (analyzing issue under Federal Rule 35(a) requiring good cause for order permitting party to conduct mental status exam) (citing Schlagenhauf v. Holder, 379 U.S. 104, 118 19 (1964)). The fact that defendant proposed that plaintiff undergo five separate tests and the intrusive nature of some of the questions on the tests doubtlessly factored into the court's estimate of how much cause was required. See id. at 413. 416. See Gier v. Educational Serv. Unit No. 15, 845 F. Supp. 1342, 1352 (D. Neb. 1994) (finding that "crucial" validation factors for expert determination of existence of child sexual abuse did not support plaintiff's contention of low error rate in methodology); cf. Askowitz & Graham, supra note 4, at 2040 (stating that scientists cannot "recreate or control [sexual abuse] for scientific experiment"). 417. Janopoulos v. Harvey L. Walner & Assocs., 866 F. Supp. 1085, 1096-97 (N.D. Ill. 1994). 418. See, e.g., Evans v. Philadelphia Hous. Auth., No. 93-5547, 1995 WL 154872, at *6 (E.D. Pa. Mar. 31, 1995) (excluding on application for civil rights attorneys' fees results of survey that did not comply with generally accepted methods); EEOC v. O & G Spring & Wire Forms Specialty Co., 38 F.3d 872, 891 (7th Cir. 1994) (approving district court ' s exclusion of flawed statistical evidence offered by EEOC in support of age discrimination claim); Washington v. Vogel, 880 F. Supp. 1545, 1548 (M.D. Fla. 1995) (excluding statistical evidence offered to show police stopped motorist based solely on her race because it was unreliable); Scales v. George Washington Univ., No. 89 0796 LFO, 1993 WL 304016, at *6-7 (D.D.C. July 27, 1993) (stating that expert opinion supporting claim of intentional race discrimination was based on flawed statistics and would be inadmissible under Daubert). 419. See Gier , 845 F. Supp. at 1349-51 & n.15 (questioning reliability of experts' methodology and noting that protocol described was never actually utilized). 420. See Dunn v. Hercules, Inc., No. 93-4175, 1995 WL 66828, at *1 (E.D. Pa. Feb. 15, 1995) (holding that statistical evidence should be excluded only if error is large enough that expert lacks good grounds for conclusions). 421. Daubert, 113 S. Ct. at 2797; see Lunney, supra note 3, at 108 (pointing out irony that "the Daubert Court, in the course of one opinion, ruled that while Frye's general acceptance test did not survive enactment of the Rules, the Rules had incorporated Frye's general acceptance analysis as a consideration under Rule 702"). 422. See, e.g., Janopoulos v. Harvey L. Walmer & Assocs., 866 F. Supp. 1085, 1097 (N.D. Ill. 1994) (finding that "ink analysis test and the relative age solvent extraction comparison test are generally accepted tests for determining the validity of documents"); Fierro v. Gomez, 865 F. Supp. 1387, 1395 n.7 (N.D. Cal. 1994) (noting that most experts based their testimony on "well accepted principles of toxicology and neurology"). 423. See, e.g., Berry v. City of Detroit, 25 F.3d 1342, 1351 (6th Cir. 1994) (noting that record did not demonstrate that disciplinary theory presented by sheriff was "other than his own"); Gier, 845 F. Supp. at 1349 (citing cases demonstrating lack of expert agreement upon universal symptomatology for sexual abuse); Doe v. TAG, Inc., No. 92C7661, 1993 WL 484212, at *2 (N.D. Ill. Nov. 18, 1993) ("'[T]here is no basic agreement among economists as to what elements ought to go into life valuation.'" (quoting Mercado v. Ahmed, 756 F. Supp. 1097, 1103 (N.D. Ill. 1991))). Occasionally, lack of reliability presents an easy question which is subject to judicial notice under Federal Rule of Evidence 201. See Doran v. McGinnis, 158 F.R.D. 383, 388 n.1 (E.D. Mich. 1994) (taking judicial notice that claim regarding mind control by implant is preposterous based on current knowledge). 424. On remand, the Ninth Circuit stated in Daubert:
[T]he proponent of expert scientific testimony may attempt to satisfy its burden through the testimony of its own experts. For such a showing to be sufficient, the experts must explain precisely how they went about reaching their conclusions and point to some objective source--a learned treatise, the policy statement of a professional association, a published article in a reputable scientific journal or the like-- to show that they have followed the scientific method, as it is practiced by (at least) a recognized minority of scientists in their field.
Daubert, 43 F.3d at 1319. 425. Daubert, 113 S. Ct. at 2797. 426. Id. at 2797-98 (quoting Fed. R. Evid. 703); see also Edward J. Imwinkelried, The Meaning of "Facts or Data" in Federal Rule of Evidence 703: The Significance of the Supreme Court's Decision to Rely on Rule 702 in Daubert v. Merrell Dow Pharmaceuticals, Inc., 54 Md. L. Rev. 352, 358-59 (1995) (suggesting that Rule 703 applies to "case-specific facts" only; other research should be analyzed under Daubert and Rule 702). See generally Jo Anne A. Epps, Clarifying the Meaning of Federal Rule of Evidence 703, 36 B.C. L. Rev. 53 (1994) (proposing standards for compliance with Rule 703 in admitting facts and data supporting expert opinions). 427. See Marozsan v. United States, 849 F. Supp. 617, 636 (N.D. Ind. 1994). 428. Id. at 635 (indicating that statistics were analyzed on IBM-AT computer using Quattro Pro Program created by Borland International). 429. Id. at 635-36. 430. See Janopoulos v. Harvey L. Walner & Assocs., 866 F. Supp. 1086, 1095-96 (N.D. Ill. 1994) (noting that tests were "widely used in the field and have been accepted by numerous state and federal courts" and that expert was well-respected authority in his field). 431. Daubert, 113 S. Ct. at 2798. On remand, the Ninth Circuit acknowledged this possibility, but chose to exclude plaintiffs' evidence on relevance grounds rather than remand for a further determination as to reliability. See Daubert, 43 F.3d at 1314-15. The courts infrequently use Rule 706. See Joe S. Cecil & Thomas E. Willging, Federal Judicial Ctr., Court-Appointed Experts: Defining the Role of Experts Appointed Under Federal Rule of Evidence 706, at 3-23 (1993) (discussing reasons why courts do not appoint more experts). 432. See Fed. R. Evid. 706(a). 433. See id. (permitting court or either party to call witness to testify). 434. See United States v. Bonds, 12 F.3d 540, 567 (6th Cir. 1993) (reporting that magistrate in criminal case appointed expert on DNA profiling to assist in limine hearing conducted under Frye); see also Renaud v. Martin Marietta Corp., 749 F. Supp. 1545, 1546 (D. Colo. 1990) (reporting use of Rule 706 expert in environmental case, which included claims under 42 U.S.C. . 1983, to assist with motion in limine determination for plaintiffs' expert evidence), aff'd, 972 F.2d 304 (10th Cir. 1992). 435. See Richey, supra note 263, at 548 n.57 (finding major problem with Rule 702 is absence of public funding for experts in civil cases). 436. Fed. R. Evid. 706(b). 437. See McKinney v. Anderson, 924 F.2d 1500, 1510-11 (9th Cir. 1991) (reversing denial of prisoner's request for court-appointed expert, premised on inability to pay, and holding that Rule 706 allowed court to order one party to pay expert fee pending its taxation as costs to losing party at conclusion of case), vacated on other grounds sub nom. Helling v. McKinney, 502 U.S. 903 (1991), aff'd, 113 S. Ct. 2475 (1993). 438. Daubert, 113 S. Ct. at 2798 (quoting Fed. R. Evid. 403); see also Paul C. Giannelli, Daubert: Interpreting the Federal Rules of Evidence, 15 Cardozo L. Rev. 1999, 2011 (1994) (noting that Rule 403 is "clearly biased in favor of admissibility" (quoting Fed. R. Evid. 403)). 439. McCormick, supra note 109, . 185, at 340. 440. Daubert, 113 S. Ct. at 2798. 441. See, e.g., United States v. Abel, 469 U.S. 45, 55 (1984) (finding that district court did not abuse its discretion when it allowed inquiry about third-party witness' membership in "lying and murderous group" as probative of bias on part of witness). Some courts have considered their discretion to be more circumscribed as Rule 403 requires the probative value of the evidence to be substantially outweighed by its prejudicial effect and the evidence to be excluded is concededly relevant. See, e.g., Spain v. Gallegos, 26 F.3d 439, 453 (3d Cir. 1994) (finding abuse of discretion where district court excluded evidence that supervisor accused of sex harassment and discrimination by subordinate was also attempting to obtain loans from her). 442. See Daubert, 113 S. Ct. at 2798 (explaining that expert testimony can be powerful and misleading and that judges applying Rule 403 should exercise "'more control over experts than over lay witnesses.'" (quoting Weinstein, supra note 249, at 632)). 443. See, e.g., Ayers v. Robinson, 887 F. Supp. 1049, 1064 (N.D. Ill. 1995) (excluding expert testimony on hedonic damages under Rule 403 because willingness-to-pay methodology on which calculations were based was designed for regulatory bodies to calculate value of average life and would tend to mislead jury attempting to determine value of individual life); Usher v. Lakewood Eng'g & Mfg. Co., 158 F.R.D. 411, 413-14 (N.D. Ill. 1994) (citing Daubert for enhanced authority to exclude expert testimony under Rule 403 and issuing protective order against five psychological tests); Martincic v. Urban Redev. Auth., 844 F. Supp. 1073, 1076 (W.D. Pa. 1994) (utilizing Rule 403 to exclude statistical evidence that "fails to correlate, in any mathematically meaningful way, the defendant's personnel decisions with employee ages"); Scales v. George Washington Univ., No. 89 0796 LFO, 1993 WL 304016, at *7 (D.D.C. July 27, 1993) (holding that expert opinion that employment data showed intentional discrimination was "not derived from a reliable scientific analysis" and was excludable "under Rules 702 and 403 as explicated by Daubert"); see also Contractors Ass'n of E. Pa., Inc. v. City of Philadelphia, 893 F. Supp. 419, 436 (E.D. Pa. 1995) (concluding that failure to consider complete data on construction industry rendered statistical expert's opinion scientifically unreliable under Daubert standard and refusing to credit expert ' s opinions offered in evidence). See United States v. Alzanki, 54 F.3d 994, 1006 (1st Cir. 1995) (holding that expert ' s description of her findings on reactions of abuse victims did not impermissibly suggest to jury that abuse occurred); Dunn v. Hercules, Inc., No. 93-4175, 1995 WL 66828, at *3 (E.D. Pa. Feb. 15, 1995) (determining that small sample size did not so diminish value of statistical evidence on age discrimination that probative value was outweighed by risk of jury confusion); Janopoulos v. Harvey L. Walner & Assocs., 866 F. Supp. 1085, 1097 (N.D. Ill. 1994) (rejecting argument for exclusion, based on jury confusion, of expert testimony on chemical tests administered by another as "frivolous" where tests were reliable and expert could explain grounds for his opinions in response to questioning); Fierro v. Gomez, 865 F. Supp. 1387, 1395-96 n.7 (N.D. Cal. 1994) (holding that qualified expert testimony went to central issue of consciousness and pain and was properly admitted under Rule 403). But see Medley v. Turner, No. 93C322, 1995 WL 296942, at *5 (N.D. Ill. May 12, 1995) (finding that physician ' s evidence regarding plaintiff's alcohol level in police misconduct case met requirements of Daubert , but limiting testimony to plaintiff's alcohol level on date of incident and excluding physician's conclusion that plaintiff was alcoholic). 445. See 3 Weinstein & Berger, supra note 116, . 702, at 702-36 to -37 (stating that absent strong factors favoring exclusion, courts should admit doubtful proffers because Rule 702 was intended to permit expanded use of expert testimony). 446. Daubert, 113 S. Ct. at 2798. 447. Tocci v. Town of Lisbon, No. 92 601 SD, 1994 WL 558615, at *1 (D.N.H. Oct. 6, 1994). 448. Id. (citing Newell Puerto Rico, Ltd. v. Rubbermaid, Inc., 20 F.3d 15, 20 (1st Cir. 1994)). 449. Id. (quoting International Adhesive Coating Co. v. Bolton Emerson Int'l, Inc., 851 F.2d 540, 544 (1st Cir. 1988)). 450. See Flores v. Puerto Rico Tel. Co., No. 89 1697(HL)(JA), 1994 WL 52570, at *2 (D.P.R. Jan. 19, 1994). 451. Id. 452. See id. 453. See Flavel v. Svedala Indus., Inc., 875 F. Supp. 550, 556 (E.D. Wis. 1994) (admitting testimony in which expert's methodology combines employee populations into single sample for statistical analysis). 454. 463 U.S. 880 (1983). 455. Barefoot v. Estelle, 463 U.S. 880, 898 (1983). 456. See Fed. R. Evid. 705 (stating that expert may offer opinion testimony without prior disclosure of underlying facts unless court requires otherwise, and that expert may still be required to disclose underlying facts on cross-examination). 457. Buckley v. Fitzsimmons, 20 F.3d 789, 796 (7th Cir. 1994) (holding that prosecutor was immune from . 1983 claim for hiring junk science practitioner). 458. Unfortunately, such preparation is often lacking. See Lunney, supra note 3, at 110 n.21 (noting frequent inability of lawyers to deal with complex scientific and technical information on cross-examination). 459. See Fed. R. Civ. P. 26(a)(2)(A)-(B) (requiring parties to provide report by each testifying expert, including those retained, specially employed, or regularly employed). The report must contain:
[A] complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.Id. 460. See National Mut. Casualty Co. v. Eisenhower, 116 F.2d 891, 895 (10th Cir. 1940) ("[T]here is no impropriety in a trial judge examining or cross examining witnesses . . . ."). This practice is now codified in Federal Rule of Evidence 614(b), which states that "[t]he court may interrogate witnesses, whether called by itself or a party." Fed. R. Evid. 614(b). 461. Gier v. Educational Serv. Unit No. 15, 845 F. Supp. 1342, 1348 (D. Neb. 1994) (citing State v. Cressey, 628 A.2d 696, 701 (N.H. 1993)); see also supra notes 416-19 and accompanying text (questioning court's approach to psychological evidence in Gier). 462. Daubert, 113 S. Ct. at 2797-98. 463. See Flavel v. Svedala Indus., Inc., 875 F. Supp. 550, 556 (E.D. Wis. 1994) (finding that party opposing admission of statistical evidence in age discrimination case could offer its own statistics in rebuttal); see also Hao-Nhien Q. Vu & Richard A. Tamor, Of Daubert, Elvis, and Precedential Relevance: Live Sightings of a Dead Legal Doctrine, 41 UCLA L. Rev. 487, 503 (1993) (describing how party may offer evidence to attack credibility of opposing expert). 464. Cf. Students of Cal. Sch. for Blind v. Honig, 736 F.2d 538, 548-49 (9th Cir. 1984) (reopening record and appointing expert to provide further testimony on adequacy of seismic testing at state school site for blind where judge was unable to decide case after trial), vacated, 471 U.S. 148 (1985); Scott v. Spange Bros., 298 F.2d 928, 930-31 (2d Cir. 1962) (approving appointment of expert where issues were confused by partisan presentation). 465. Gier, 845 F. Supp. at 1345 (finding that mentally retarded children had "extremely limited communication skills"). 466. See American Bar Association, Report of a Special Committee of the ABA Litigation Section, Jury Comprehension in Complex Cases 40-43 (1989) [hereinafter Jury Comprehension] (noting examples where juries have rejected expert testimony involving trade secrets and lost future income). 467. See Daubert, 113 S. Ct. at 2798 (noting importance of careful jury instruction on burden of proof as means for attacking shaky but admissible evidence). 468. See Doe v. Johnson, 52 F.3d 1448, 1463 (7th Cir. 1995) (stating that district court instructed jurors to give expert testimony whatever weight they deemed proper); Webb v. Hyman, 861 F. Supp. 1094, 1115 (D.D.C. 1994) (stating that jury could reject all or none of psychologist's testimony regarding connection between sexual harassment and injury); see also Richey, supra note 263, at 541 (proposing designation of "opinion witness" for "expert witness" in Rule 702 to limit implied message that testimony of expert witness is credible). 469. See Jury Comprehension, supra note 466, at 40-53 (stating that even in complex cases, jurors are not unduly influenced by experts). 470. Jury Comprehension, supra note 466, at 43-52. 471. F.J.C. Manual, supra note 285. 472. Robie Sherman, Judges' Manual Irks Plaintiff Bar; Proposal to Help Interpret Scientific Evidence After Daubert Is Called Biased, Nat'l L.J., Aug. 1, 1994, at A6 (reporting statement of William H. Schwarzer, Director, F.J.C.). For a review of the F.J.C. Manual, see Lee Loevinger, Adjudicating Science, 373 Nature 115 (1995). 473. See F.J.C. Manual, supra note 285, at v (describing methodologies including epidemiology, toxicology, survey research, forensic DNA evidence, statistics, multiple regression analysis, and estimation of economic loss in damage awards). 474. Id. at 623-28. 475. Id. at 7-36, 525-622. 476. Id. at 37-118. Professor Berger's chapter is somewhat controversial. A number of plaintiffs' counsel groups, including the American Trial Lawyers Association and Trial Lawyers for Public Justice, complained that her treatment of the issues was biased against the admission of novel evidence. See Thom Weidlich, Plaintiffs' Bar Loses Bid to Sway Science Manual, Nat'l L.J., Dec. 26, 1994, at A11. The F.J.C. declined to modify the manual in response to these criticisms. Id. 477. F.J.C. Manual, supra note 285, at 3-5. 478. F.J.C. Manual, supra note 285, at 3-5; see also Fed. R. Evid. 201(b) (stating that such scientific principles and methods would presumably be "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned"). 479. The first reference to the manual occurred in a products liability case where the court cited the text for the straightforward proposition that the initial step in gatekeeping was to determine if the witness was an expert in a scientific field dealing with the causation issue. See Casey v. Ohio Medical Prods., 877 F. Supp. 1380, 1383 (N.D. Cal. 1995) (citing F.J.C. Manual, supra note 285). Subsequently, a district court referred to the manual where it excluded a survey offered to support a request for attorneys' fees in a civil rights case. See Evans v. Philadelphia Hous. Auth., No. 93-5547, 1995 WL 154872, at *5 (E.D. Pa. Mar. 31, 1995) ("An analysis is only as good as the data on which it rests . . . . [I]t is important to verify the quality of the data collection and to identify its limitations." (citing F.J.C. Manual, supra note 285, at 341)). More recently, in Summers v. Missouri Pac. R.R. Sys., No 94-468-P, 1995 WL 519206 (E.D. Okla., Aug. 25, 1995), the district court excluded the testimony of two clinical ecologists in a personal injury case. Id. at *2. The court relied in part on the F.J.C. Manual, which indicates that the medical community has not recognized clinical ecology. Id. 480. See Richey, supra note 263, at 545 (noting that many trial judges lack the time and expertise to study scientific issues); see also Symposium on Science and the Rules of Evidence, 99 F.R.D. 187, 221 (1983) (remarks of Professor Joseph Nichol) (indicating undesirability of having "generalist judges" determine whether evidence meets scientific standards of validity). 481. For those judges who desire to expand their knowledge, however, the manual at least has the advantage of avoiding contact with the opposing parties' expert camps, which sometimes results in satellite litigation regarding possible recusal of the judge. See United States v. Bonds, 18 F.3d 1327, 1328 (holding that attendance at conference on DNA and forensic science did not support disqualifi cation of circuit judge); In re School Asbestos Litig., 977 F.2d 764, 798 (3d Cir. 1992) (finding that sponsorship and attendance at pro-plaintiff conference by district judge required his disqualification). 482. The district court may designate a magistrate judge as special master. See 28 U.S.C. . 636(b)(2) (1988 & Supp. V 1993) (permitting judge to designate magistrate to serve as special master in any civil case upon consent of parties); see also Fed. R. Civ. P. 53(b). Absent unusual circumstances, a magistrate will not have sufficient specialized knowledge to warrant appointment for the purposes contemplated here. Cf. Di Lello, supra note 89, at 474 (proposing creation of special judicial office of magistrate judge experts). 483. Fed. R. Civ. P. 53(d)-(e). The master must include any required findings of fact and conclusions of law in the report. Fed. R. Civ. P. 53(e)(1). In a non-jury case, the court must accept the master ' s findings unless they are clearly erroneous. Fed. R. Civ. P. 53(e)(2). In a jury case, the master does not report the evidence. Fed. R. Civ. P. 53(e)(3). Instead, the master's findings are admitted as evidence to be considered by the jury, subject to the court's ruling on any objections. Id. The parties may also stipulate that the master's findings are final, in which case only questions of law arising from the report may be considered. Fed. R. Civ. P. 53(e)(4). 484. See Fed. R. Civ. P. 53(c) (stating that "master may rule on the admissibility of evidence unless otherwise directed by order of reference"). 485. Fed. R. Civ. P. 53(b). The Supreme Court has indicated that neither calendar congestion nor complexity of issues nor expected great length of trial are exceptional conditions warranting reference to master in a non-jury case. See La Buy v. Howes Leather Co., 352 U.S. 249, 259 (1957). 486. See Chicago Hous. Auth. v. Austin, 511 F.2d 82, 83 (7th Cir. 1975) (appointing master to investigate non-compliance with desegregation order for public housing and to make recommenda tions to the court); City of Richmond v. United States, 422 U.S. 358, 366 (1975) (discussing district court treatment of master's findings in Voting Rights Act case alleging black vote dilution by municipal annexation). 487. 42 U.S.C. .. 300aa-12(c) (1988 & Supp. V 1993) (creating office of special masters to hear and determine claims for injury resulting from vaccine programs). 488. See Knudsen v. Department of Health & Human Servs., 35 F.3d 543, 548 (Fed. Cir. 1994) (citing Daubert for proposition that under Vaccine Act "logical sequence of cause and effect" must be supported by sound and reliable medical or scientific explanation); Leary v. Department of Health & Human Servs., No. 90 1456V, 1994 WL 43395, at *9 (Ct. Cl. Jan. 31, 1994) (assessing validity of evidence that heart disease was aggravated by vaccine under Daubert); Haim v. Department of Health & Human Servs., No. 90-1031V, 1993 WL 346392, at *9 (Ct. Cl. Aug. 27, 1993) (evaluating evidence on claim that vaccine caused encephalopathy under Daubert). 489. See Charles A. Wright, Law of Federal Courts . 97, at 697 (5th ed. 1994) (noting potential for "unbelievably long delay" and "increased expense"). 490. See U.S. Const. amend. VII (providing that "[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved"); see also Dairy Queen, Inc. v. Wood, 369 U.S. 469, 478 (1962) (holding that master should rarely be appointed in case where right to jury trial exists). 491. See, e.g., Stauble v. Warrob, Inc., 977 F.2d 690, 693-95 (1st Cir. 1992) (ruling that Constitution prohibits assignment of master without attributes of Article III judge to determine fundamental issues of liability over objection of parties); In re Bituminous Coal Operators' Ass'n, 949 F.2d 1165, 1169 (D.C. Cir. 1991) (holding that judge may not appoint master as surrogate judge to determine controversy). 492. See United States v. Bonds, 12 F.3d 540, 551 (6th Cir. 1993) (noting that magistrate conducted six-week hearing in criminal case on admissibility of DNA profile evidence). 493. Cf. In re United States Dep ' t of Defense, 848 F.2d 232, 236 (D.C. Cir. 1988) (avoiding delay by court ' s use of special master with security clearance in Freedom of Information Act case involving 14,000 pages of documents relating to Iranian hostage rescue attempt in 1980). 494. See McKinney v. Anderson, 924 F.2d 1500, 1511 (9th Cir. 1991) (discussing court's requirement that one party initially pay expert fee). 495. See supra notes 273-78 and accompanying text. 496. See Fed. R. Civ. P. 53(e)(2) ("[I]n an action to be tried without a jury the court shall accept the master's findings of fact unless clearly erroneous."). 497. See Ex parte Peterson, 253 U.S. 300, 312-13 (1920) (recognizing court's authority to appoint special master if matter is complex, intricate, or voluminous). 498. Reilly v. United States, 863 F. 2d 149, 157-58 (1st Cir. 1988) (identifying problem areas for court including "complex economic theories" and "difficult computation of damages"). 499. See Reed v. Cleveland Bd. of Educ., 607 F.2d 737, 747-48 (6th Cir. 1979) (finding that appointed expert possessed knowledge on educational matters needed by special master and court). 500. See Reilly, 863 F.2d at 157-61 (holding that advisor was not evidentiary source and suggesting several safeguards for utilization of advisors including advance notification by district court of expert's identity, opportunity to object to appointment, instruction to expert, memorialization of expert's duties, and filing of affidavit by expert to confirm adherence to court-prescribed duties); see also Cecil & Willging, supra note 336, at 1067-68 (suggesting additional procedures to diminish concerns regarding appointment of advisor). 501. See Reilly, 863 F.2d at 155-56 (finding that "grasp of Rule 706 is confined to court-appointed expert witnesses" and does not include consultants or expert advisors); see also In re Joint E. & S. Dists. Asbestos Litig., 151 F.R.D. 540, 544 (E.D.N.Y. 1993) (observing that non- testifying experts appointed under Rule 706 are routinely characterized as technical advisors and not required to submit to deposition). 502. See Moore et al., supra note 113, § 21.54, at 100 (noting that Manual for Complex Litigation suggests consulting private or government technical bodies, panel of experts, or advisors). The peer reviewers listed in the F.J.C. Manual are an obvious potential source of advisors. F.J.C. Manual, supra note 285, at 623. Local colleges and universities may also provide assistance. Irene A. Sullivan, Obtaining and Preparing Experts from the Defendant's Perspective, in Practising Law Institute, Depositions, Expert Witnesses, and Demonstrative Evidence in Personal Injury Cases 256 (1985) (noting that academic community is good source of experts on wide variety of topics). 503. Reilly, 863 F.2d at 158. 504. See Cecil & Willging, supra note 431, at 64-65. 505. See Renaud v. Martin Marietta Corp., 972 F.2d 304, 308 (10th Cir. 1992) (appointing advisor to help court understand measurement of effluent discharge in environmental case). 506. Hemstreet v. Burroughs Corp., 666 F. Supp. 1096, 1124 (N.D. Ill. 1987), rev'd on other grounds, 861 F.2d 728 (Fed. Cir. 1988). 507. The likelihood that an advisor's task will be less adversarial and time-consuming than an expert's or master's role and may encourage potential advisors to agree to serve. 508. See supra Part I (discussing evidentiary issues presented in Brown). 509. Fed. R. Civ. P. 16(c)(12). 510. See Edward J. Imwinkelried, The Educational Significance of the Syllogistic Structure of Expert Testimony, 87 Nw. U. L. Rev. 1148, 1149 (1993) (arguing that expert plays educational role at trial); Paul S. Milich, Controversial Science in the Courtroom, Daubert and the Law's Hubris, 43 Emory L.J. 913, 922 (1994) (suggesting that if jury is asked to resolve dispute concerning scientific reliability of certain evidence, education on relevant scientific principles and methods is necessary). 511. One practitioner has commented:
This, then is the challenge of expert evidence: How do you convey specialized difficult information in court? Remember, a courtroom is a bad place to present complex information. Jurors rely mostly on what they hear; they get such information in the order, and at the speed, determined by the advocates and rules of evidence--but not by common sense. Jurors have no time to study the evidence or to ask questions, and testimony goes on far longer than most of us can pay close attention.
Mark L. D. Wawro, Effective Presentation of Experts, Litigation, Spring 1993, at 31; see also Terry Lunsford, How Jurors Respond to Complex Commercial Cases, Litigation, Summer 1993, at 50, 50-51 ("Expert witnesses are supposed to explain esoteric matters to jurors and to give enlightening opinions. But almost every commercial jury trial is the stage for an expert witness who mystifies and frustrates more than she clarifies."). 512. See Jack B. Weinstein, Rule 702 of the Federal Rules of Evidence Is Sound; It Should Not Be Amended, 138 F.R.D. 631, 640 (1991) (suggesting use of general education witnesses for the judge before trial and for juries during trial); see also Berger, supra note 285, at 34 ("Arrange a tutorial for the judge and jury before the trial begins, conducted by neutral experts or experts chosen by the parties, to explain noncontroversial fundamentals of complex scientific issues."). 513. See Moore et al., supra note 113, . 22.43, at 141 (suggesting that in all cases "[i]f feasible, the judge should highlight in simple language what are expected to be the key factual issues the jury will be called on to decide and should explain briefly the basic legal principles involved in these disputes"). 514. See Jury Comprehension, supra note 466, at 41-42. 515. See 3 Weinstein & Berger, supra note 116, ô 702, at 702-09 to -10 (suggesting resolution of expert issues prior to trial and, when possible, not in jury's presence).