Supplement to Chapter 7
(The Scientific Soundness Standard)
Copyright © 2001 DH Kaye
The leading discussions of how "Daubert" should be pronounced are Michael H. Gottesman, Admissibility of Expert Testimony After Daubert: The "Prestige" Factor, 43 Emory L.J. 867, 867 (1994) (reporting that the parents "pronounce their name 'Dow-burt'"), and Peter Norberg, A Definitive Solution to the Pronunciation Riddle, Jan. 30, 2006, at http://www.daubertontheweb.com/2006/01/definitive-solution-to-pronunciation.html (reporting that Jason Daubert pronunces his name as "'Dogbert' without the g"). Norberg applies the Daubert opinion to determine the proper outcome of this controversy in Prolegomenon: A Pronunciation Gazetteer, at http://daubertontheweb.com/Prolegomenon.htm:
Q: Before we get to what it all means, how is "Daubert" pronounced?
Q: How do you know?
A: From an article authored by a duly licensed attorney who developed his opinion in the regular course of his professional duties. See Michael H. Gottesman, Admissibility of Expert Testimony After Daubert: The "Prestige" Factor, 43 Emory L.J. 867, 867 (1994).
Q: What makes Gottesman an expert on this subject?
A: He represented Jason Daubert before the Supreme Court and listened to how the Daubert family pronounced the name.
Q: So Gottesman's opinion on the correct pronunciation was developed for litigation purposes?
Q: Is "dow-burt" the generally accepted pronunciation?
A: Not universally so. Many lawyers and judges say "dough-bear."
Q: Well, what about the methods Gottesman used to arrive at his conclusion? Is listening to the client a prevalent methodology in the legal field?
A: To a point.
Q: So did Gottesman take any courses on listening to the client during law school?
A: Almost certainly not.
Q: Has the technique of listening to the client been tested?
Q: Does it have a known error rate?
A: The error rate is thought to be fairly high.
Q: Isn't it true, in fact, that Jason Daubert himself says the correct pronunciation is "daw-burt"?
A: Yes, but that's a single anecdotal report from somebody who doesn't even have a law degree. Gottesman's views are reflected in the published literature and have survived the crucible of peer review.
Q: Has Gottesman been consistent, at least, in the position he has taken on the proper pronunciation?
A: No. When he was arguing the case before the Supreme Court, he pronounced the name "dough-bear."
A: The Justices seemed to prefer that pronunciation.
On the difference between Daubert and Frye, see David Faigman et al., How Good is Good Enough?: Expert Evidence Under Daubert and Kumho, 50 Case W. Reserve L. Rev. 645, 655-56 (2000)
Daubert applies to "scientific knowledge." Can its strictures be avoided simply by arguing that the knowledge is not scientific? In Kumho Tire Company, Ltd. v. Carmichael, 527 U.S. 137 (1999), the Supreme Court held that district judges must be gatekeepers of all expert testimony, and that they "may" apply the Daubert factors in a "flexible" fashion to ensure the that expert's method of reasoning is "reliable." For cases applying Daubert to nonscientific expert testimony, see, for example, Jinro America Inc. v. Secure Investments, Inc., __ F.3d __, 2001 WL 1057266 (9th Cir. 2001) (district court abused its discretion in admitting testimony of the general manager of the Pinkerton Detective Agency's office in Korea who "purported to be an expert on Korean business culture and practices, particularly with regard to Korean currency laws and the propensity of Korean businesses to evade them through various illegal schemes"); cf. United States v. Llera Plaza, 188 F.Supp.2d 549 (E.D. Pa. 2002) (vacating the opinion originally published at 179 F. Supp.2d 492, which applied Daubert to preclude an FBI fingerprinting examiner from testifying that a "latent fingerprint" matched a "rolled print").
Justice Blackmun's majority opinion noted that a "pertinent consideration is whether the theory or technique has been subjected to peer review and publication." Are there situations in which the lack of publications in peer-reviewed scientific journals should be of little concern? If so, what are they? How adequate is peer review in ensuring validity? See, e.g., Donald Kennedy, To Publish or Not to Publish, 295 Science 1793 (2002) (editorial); Charles Seife, Nuclear Fusion: 'Bubble Fusion' Paper Generates a Tempest in a Beaker, 295 Science 1808 (2002).
Can methodology be distinguished from conclusions? Consider the exchange on this question in the opinions of Justice Rehnquist and Justice Stevens in General Electric Co. v. Joiner, 522 U.S. 136 (1997).
What is the appropriate standard of review on appeal of a trial court's ruling on whether proposed testimony satisfies Daubert? Abuse of discretion? De novo? Something in between? Why? The lower courts were divided until the Supreme Court clarified the matter in General Electric Co. v. Joiner, 522 U.S. 136, 143 (1997) (holding that courts of appeals are to apply the abuse-of-discretion standard when reviewing a district court's reliability determination). A similar question arises under Frye, of course.
According a study conducted by the RAND Corporation, "judges addressed the issue of reliability more often--and found evidence unreliable more often--after the Daubert decision and up through mid-1997. In subsequent years, those same proportions fell. The reversal, the authors argue, probably came about because plaintiffs and defendants began to tailor the evidence that they proposed." RAND Institute for Civil Justice, Research Brief: Changes in the Standards for Admitting Expert Evidence (2002), available at http://www.rand.org/publications/RB/RB9037/.
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updated 23 April 2002