University of Cincinnati Law Review


There is a generally accepted narrative about the development of the rules governing the admissibility of expert witness testimony. In this narrative over most of the twentieth century, the Frye rule imposed an inflexible requirement that evidence and testimony which was generally accepted was admissible while evidence that was not generally accepted was not. But the Supreme Court’s 1993 decision in Daubert installed judges as the new arbiters of admissibility of expert testimony and replaced the Frye rule with a new standard: the relevance and reliability of the scientific evidence on which the expert witnesses rely. This revolution (one strand of the generally-accepted narrative continues) has allowed judges to unfairly tilt the playing field in favor of defendants—typically large corporations—by erecting impossibly high barriers to the admissibility of plaintiffs’ expert witnesses.

This Article uses an empirical analysis of fifty-seven toxic tort cases to advance a counternarrative: The scientists were never in charge; rather, judges have long had the upper hand. Before Daubert, scientific evidence presented by experts was admitted in support of claims that seemed to the judge to have merit and rejected when the case appeared to be weak, allowing the judge to dispose of actions in the pretrial phase. The Daubert “revolution” did nothing to alter that balance of power as judges continue to exclude experts and dispose of cases at the evidentiary stage with the same frequency and in the same patterns as under the Frye standard.

The analysis does not allow a determination of the factors that underlie post-Daubert judges’ admissibility decisions. But, whatever those factors may be, the Daubert “revolution” has neither clearly improved the outcomes in toxic tort cases nor ensured judges’ adherence to the existing set of rules governing the admissibility of expert testimony and scientific evidence.