Psychological Testimony and Daubert: Pro-Science and Pro-Corporations

During the mid-1980s, I treated a patient in her first trimester of pregnancy who was suffering from severe morning sickness. At the time, I was working at the Kaiser Permanente Medical Center in Santa Clara, California. Although I saw no reason to get involved in the medical side of my patient’s treatment, I happened to mention her illness to a pediatrician friend of mine. He said something along the lines of, “There had been a medicine that helped tremendously with morning sickness, and it was perfectly safe–Bendectin. In fact, in large, controlled studies, pregnant women taking Bendectin actually had a non-statistically significant lower number of birth defects than women taking no medications. Bendectin was taken off the market because the manufacturer had faced numerous groundless lawsuits over birth defects.” The pediatrician’s statement led to my first introduction to “junk science” and what would later become known as the Daubert standard.


Jason Daubert and Eric Schuller had been born with serious birth defects. Their parents sued Merrill Dow, the manufacturer of Bendectin, which Jason’s and Eric’s mothers had used during pregnancy. In the lawsuit known as Daubert v. Merrill Dow, the plaintiffs produced experts who had found ways, especially in animal studies (that had been carried out specifically for this lawsuit), to demonstrate a link between Bendectin and birth defects. This research, which later was branded junk science, had never been published in peer reviewed journals, nor did it use methods which were scientifically acceptable. The case ultimately went all the way to the United States Supreme Court. Neither the trial court, nor any appeals court, considered Daubert’s expert testimony acceptable. Nevertheless, facing numerous lawsuits and a rekindling of the emotions of the Thalidomide horror of the 1960s, Merrill Dow voluntarily ceased production and sales of Bendectin in 1983. (Bendectin, as of today, is back on the market and is rated Pregnancy Category A–Research has found it to be safe during all trimesters of pregnancy.)


As a result of this case, and several similar cases, the courts have determined that expert scientific or technical testimony must meet certain standards, now known as the Daubert standards and codified in the Federal Rules of Evidence Rule 702. Rule 702 states:


A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:


(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d)  the expert has reliably applied the principles and methods to the facts of the case.


As of July 1, 2013, the State of Florida has adopted the so-called Daubert Standard for expert testimony, supplanting the older Frye Standard. The Frye Standard dated from a 1923 case regarding the use of the polygraph. That standard held that scientific evidence had to be “generally accepted” to be admissible in court. Thus, if scientific testimony were to involve novel methods, such methods would be unlikely to meet the Frye standard. Novel methods could not possibly be shown to be “generally accepted” in the scientific community–even though such methods may be perfectly valid.


Frye focuses on the evidence itself, while Daubert focuses on the expert testimony that introduces that evidence. In practice, the two standards are difficult to distinguish, although one key issue involves timing. Under Frye, the expert testimony is likely to be heard by the jury and then perhaps refuted and considered inadmissible. Under Daubert, the judge had an obligation to exclude expert testimony that fails to meet the standards set out in Rule 702. In practice, the jury, who might hear inadmissible testimony under Frye, might never hear the questionable testimony under Daubert. Daubert gives the judge an obligation to expose the jury only to scientific evidence that meets the Rule 702 standards.


One might ask why does this matter to the Florida Legislature? Frye and Daubert are so similar, why would the State of Florida go through the trouble of passing the new law? Is the Florida legislature that concerned about the scientific method, validity and reliability? Is the Florida legislature composed of philosophers of science, research methodologists and journal reviewers?


Obviously not! I would contend that the Florida legislature does not care one iota about scientific method. However, they do care about “tort reform,” which is a code term for preventing consumers from suing corporations. Using the guideline of “follow the money,” one can ask who benefits financially from Daubert? Defendant corporations in product liability lawsuits are the expected beneficiaries, along with physicians and other medical entities. Daubert adds a hurdle that the plaintiff must surmount to bring a case. Plaintiffs’ experts not only must use scientific methods appropriately, but plaintiffs also bear the burden of proving to the judge that the experts have done so before the expert testimony is admitted.


As psychologists, we may not necessarily feel a close kinship with corporations that might be sued, be we do support the scientific method. Thus, our beliefs and the preferences of potential-defendant corporations happen to converge in this particular instance. We understand, for example, that a cluster of autism cases near a certain farm may or may not be the result of chemicals used at that farm. Psychologists understand that anything and everything may be associated with anything else by pure chance. Psychologists are socialized to believe in the scientific method and to understand that spurious findings frequently occur. You might say we have a moral obligation to assist juries in avoiding Type I and Type II errors in hypothesis testing. Daubert is consistent with our training and beliefs regarding scientific research.


Despite Daubert, clinical testimony may be admissible if the expert witness uses recognized methods, accepted by his or her field of expertise, in arriving at a conclusion. Many clinical conclusions are not data-based. In fact, one often hears testimony in court regarding the correct DSM diagnosis, with opposing experts disagreeing. The basis for such expert testimony is not scientific research, but merely what each expert believes the DSM says, along with that expert’s rationale for possibly deviating from the DSM. Disputes arise when an expert believes that the opposing expert is using the DSM inappropriately. Daubert hardly applies in such cases, as the DSM itself is not necessarily predicated on research that meets Daubert standards. Ironically, the “general acceptance” doctrine from Frye is more likely to govern clinical testimony, asking the question of whether the clinician has used the generally accepted methods of his or her field appropriately. In practice, the impact of Daubert on testifying clinicians has not been terribly burdensome. Whenever possible, in a written report, the clinician must cite a published authority for a given conclusion, with peer-reviewed authorities being preferred.


In sum, because psychologists subscribe to the scientific method–and decry junk science–we ought to support Daubert. To appreciate the virtues of Daubert, one only needs to reflect upon the generations of expectant mothers who needlessly suffered from morning sickness–including morning sickness severe enough to threaten the mother’s health and the pregnancy–because of the junk science that Daubert would have decisively rendered inadmissible.




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