* Professor of Law and Alumni Faculty Fellow, Washington and Lee University School of Law.
** Class of 1958 Alumni Professor of Law, Washington and Lee University School of Law.
1 Rebecca Goldstein, Properties of Light: A Novel 37–38 (2000).
2 Id. at 38–39.
3 Id. at 69.
4 The term “science wars” refers to “the ever angrier debate about the scope and authority of science.” You Can’t Follow the Science Wars Without a Battle Map, Economist, Dec. 13, 1997, at 77, 77. The “battle” is between the defenders of science as a linear and progressive affair involving testable and falsifiable descriptions of reality, and critics of science who emphasize its historical, social, rhetorical, political, and even moral and gendered aspects. See id. at 77–78.
5 Goldstein, supra note 1, at 69.
6 The “Daubert Trilogy” consists of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997); and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
7 1 David L. Faigman et al., Modern Scientific Evidence: The Law and Science of Expert Testimony, at ix (1997). See generally 509 U.S. 579.
8 Michael J. Saks, The Aftermath of Daubert: An Evolving Jurisprudence of Expert Evidence, 40 Jurimetrics J. 229, 232–33 (2000).
9 See Margaret Farrell, Daubert v. Merrell Dow Pharmaceuticals, Inc.: Epistemiology and Legal Process, 15 Cardozo L. Rev. 2183, 2217 (1994).
10 See Gary Edmond, Judicial Representations of Scientific Evidence, 63 Mod. L. Rev. 216, 217, 250–51 (2000).
11 See generally David S. Caudill, Ethnography and the Idealized Accounts of Science in Law, 39 San Diego L. Rev. 269 (2002).
12 See, e.g., Ronald J. Allen & Brian Leiter, Naturalized Epistemology and the Law of Evidence, 87 Va. L. Rev. 1491, 1492 & n.1 (2001) (dismissing “the unfortunate fascination in some quarters of the legal academy with ‘postmodern’ conceptions of knowledge and truth, conceptions notable for their superficiality and for the fact that almost no philosophers subscribe to them”; postmodern skepticism “about the possibility of objective truth, as well as our capacity to find objective truth in the world,” is “remarkably useless for evidence law”). Allen and Leiter’s outlook is, perhaps, remarkable for its dismissiveness.
13 Johannes Fabian, Time and the Other: How Anthropology Makes Its Object 109 (1983) (footnote omitted).
14 See Anthony Giddens, Modernity and Self-Identity: Self and Society in the Late Modern Age 7 (1991), quoted in Alan Irwin & Brian Wynne, Conclusions, in Misunderstanding Science?: The Public Reconstruction of Science and Technology 213, 219 (Alan Irwin & Brian Wynne eds., 1996) [hereinafter Misunderstanding Science] (noting that scientific “claims to authority are likely to be met with an increasingly critical (if not downright hostile) audience” in public contexts).
15 See infra notes 20–71 and accompanying text.
16 See infra notes 72–152 and accompanying text.
17 See infra notes 153–220 and accompanying text.
18 See infra notes 221–227 and accompanying text.
19 See infra notes 228–235 and accompanying text.
20 Sophia I. Gatowski et al., Asking the Gatekeepers: A National Survey of Judges on Judging Expert Evidence in a Post-Daubert World, 25 Law. & Hum. Behav. 433, 433 (2001) (surveying 400 state trial court judges).
21 See, e.g., id. at 434; see also Erica Beecher-Monas, The Heuristics of Intellectual Due Process: A Primer for Triers of Science, 75 N.Y.U. L. Rev. 1563, 1564–68 (2000).
22 Gatowski et al., supra note 20, at 452–53.
23 Id. at 443.
24 Id. at 444–47, 455.
25 See generally Gatowski et al., supra note 20.
26 Id. at 437 (“[T]he Court provided little if any guidance as to the meaning or application of the [Daubert] guidelines.”); id. at 454–55 (“[T]he research presented herein clearly demonstrates the need for more science-based judicial education.”).
27 See Simon Locke, The Public Understanding of Science—A Rhetorical Invention, 27 Sci., Tech., & Hum. Values 87, 87 (2002) (“[M]uch of the debate in the field has focused on the validity of the so-called deficit model . . . . The term deficit reflects an expectation that members of the public are relatively ignorant of science and that these instruments help to establish the extent of their knowledge deficit.” (citations omitted)); see also Mike Michael, Comprehension, Apprehension, Prehension: Heterogeneity and the Public Understanding of Science, 27 Sci., Tech., & Hum. Values 357, 359 (2002) (noting that the positivist, traditional orientation “has been criticized as deploying a deficit model”).
28 See Mike Michael, Ignoring Science: Discourses of Ignorance in the Public Understanding of Science, in Misunderstanding Science, supra note 14, at 107, 109 (In recommendations “that there should be an increase in the amount and quality of science education,” there is an implication that “science is the active disseminator and the fountain of meaning and agency, [and that] the public are merely the passive receivers and repositories.”); see also Brian Wynne, Misunderstood Misunderstandings: Social Identities and Public Uptake of Science, in Misunderstanding Science, supra note 14, at 19, 19 (discussing science as “cognitive content”).
29 See Wynne, supra note 28, at 37–38.
30 See Michael, supra note 28, at 119–20; Wynne, supra note 28, at 26.
31 See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993); Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
32 See generally Gatowski et al., supra note 20.
33 See id. at 438–41.
34 Stratified random sampling involves dividing the population to be sampled into strata to achieve an approximate balance of important characteristics and then using random sampling within each of these strata. See B.S. Everitt, The Cambridge Dictionary of Statistics 321 (1998).
35 Gatowski et al., supra note 20, at 439.
36 Id.
37 See id. at 440.
38 See id. at 435.
39 Id. at 441.
40 See Michael Mulkay & G. Nigel Gilbert, Putting Philosophy to Work: Karl Popper’s Influence on Scientific Practice, 11 Phil. Soc. Sci. 389, 398 (1981). Mulkay and Gilbert argue that:
assessments of conformity to Popper’s basic rule of scientific method hinge on scientists’ interpretation of the term “falsification”; and the meaning of “falsification” depends entirely on researchers’ technical and scientific judgments. In situations of scientific uncertainty these judgments, and hence the meaning of Popperian rules, will be variable. Consequently, when there is uncertainty, the Popperian rules cannot provide a straightforward guide for scientists’ actions or decisions. There is a gap between [the] rule and particular action which can only be bridged by the very scientific choice which the rule is intended to constrain.
Id. In another formulation, they state that:
[t]he generality of the Popperian rules [like the “falsification” criterion], their lack of interpretive particularization and their independence of institutionalized social relationships, allow individual scientists considerable freedom to conceive of their own actions as Popperian in character and to attribute their intellectual success to the effectiveness of the Popperian approach.
Id. at 407. As to the uses and misuses of Popper’s falsifiability criterion in law, see generally Gary Edmond & David Mercer, Conjectures and Exhumations: Citations of History, Philosophy and Sociology of Science in US Federal Courts, 14 Law & Literature 309 (2002). Edmond and Mercer emphasize “the degree of confidence invested by the [Daubert] majority in their Popperian inspired model of the scientific method [namely, the “falsification” criterion] and the absence, not only of conflicting and critical readings of Popper but of other philosophers and sociologists of science.” Id. at 313.
41 See supra note 27 and accompanying text.
42 “Much of the cognitive research on scientific thinking has focused on particular cognitive activities such as falsification of hypotheses and noted that even scientists often fail to reason in a normatively correct manner (that is assuming the norms are correct!).” Kevin N. Dunbar, Understanding the Role of Cognition in Science: The Science as Category Framework, in The Cognitive Basis of Science 154, 165 (Peter Carruthers et al. eds., 2002).
43 See, e.g., Gilles Fauconnier & Mark Turner, The Way We Think: Conceptual Blending and the Mind’s Hidden Complexities 21 (2002) (“Most motions that the skier can imagine are impossible or undesirable to execute. But within the conceptual blend prompted by the instructor [for example, “pushing off,” “skating,” or “carrying a tray”], and under the conditions afforded by the environment, the desired motion will be emergent.”); see also Steven L. Winter, A Clearing in the Forest: Law, Life, and Mind 3 (2001) (“Much of what we know is at the level of tacit knowledge. We can ride bicycles, compose new sentences, and make complex judgments about all sorts of everyday things without conscious effort or thought.”).
44 The four factors are testability, peer review or publication, low error rate, and general acceptance. Daubert, 509 U.S. at 593–94.
45 Id. at 592–93.
46 See id. at 593.
47 See supra note 45 and accompanying text.
48 Id. at 593 (“[W]e do not presume to set out a definitive checklist or test.”).
49 See id. at 594.
50 Significantly, the six authors of the survey we are criticizing did recognize (i) that the Daubert Court did not intend “to set out a definitive checklist or test”; (ii) that “the Daubert majority explicitly declined to decide whether its four factors were either necessary or sufficient components for an adequate assessment of the scientific method”; and (iii) that a Rule 702 inquiry is flexible. See Gatowski et al., supra note 20, at 436–37. Our criticism, therefore, is that the survey authors then proceed, somewhat contradictorily, to treat the Daubert factors as definitive guidelines by which we can determine whether judges understand science.
51 Daubert, 509 U.S. at 595.
52 Id. at 592–93 (stating that the trial judge must make a “preliminary assessment of whether . . . [the] reasoning or methodology properly can be applied to the facts in issue”).
53 See 522 U.S. at 144–45.
54 Id. at 140.
55 Id. at 140–41, 146.
56 Id. at 146.
57 Id.
58 522 U.S. at 144–45.
59 See id. at 146.
60 Id. at 138–39.
61 See id. at 143 (“[T]he Court of Appeals erred in . . . applying an overly ‘stringent’ review . . . [and] failed to give the trial court the deference that is the hallmark of abuse-of-discretion review.”).
62 See id. at 141–43.
63 See generally Kumho Tire, 526 U.S. 137.
64 See id. at 147 (concluding that Rule 702 “makes no relevant distinction between ‘scientific’ knowledge and ‘technical’ or ‘other specialized’ knowledge”).
65 See id. at 148 (stating that Daubert “gatekeeping” is not limited to “scientific” knowledge).
66 Id. at 141–42.
67 Id. at 143.
68 Kumho Tire, 526 U.S. at 150 (quoting Br. for United States as Amicus Curiae 19) (other citations omitted).
69 Our research methodology was simply to read all the federal cases applying Daubert in which a circuit court reversed a district court judge’s decision on admissibility of an expert. We wanted to identify and focus on cases concerning reliability; therefore we did not consider the numerous cases concerning relevance (i.e., determinations that the evidence would not assist the trier of fact), the distinction between lay and expert testimony, or the danger of prejudice outweighing probative value, or of jury confusion. We also did not consider cases where (i) the trial judge failed to hold a Daubert hearing, and (ii) the trial judge made no findings that indicated why an expert’s testimony was admitted or disallowed. Finally, we eliminated some cases concerning reliability if that issue was so mixed with other issues (for example, relevance) that the finding of reliability (or unreliability) was not determinative. In short, the recent cases analyzed in this Article are those where a primary disagreement between the trial judge and the appellate panel over the reliability of an expert is both identifiable and discussed in the appellate opinion.
70 We are sympathetic to the charge that “an empirical analysis of published case law is, by its very nature, restricted to an analysis of post hoc justifications . . . and does not fully capture the judicial decision-making process.” Gatowski et al., supra note 20, at 434. We believe, however, that more of the “judicial decision-making process” is revealed in reversals.
71 See Fed. R. Evid. 702 (“[A] witness qualified as an expert . . . may testify . . . if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”).
72 See Analytic Jurisprudence Anthology 219–48 (Anthony D’Amato ed., 1996); see also Symposium on the Renaissance of Pragmatism in American Legal Thought, 63 S. Cal. L. Rev. 1569 (1990) (including articles by Thomas C. Grey, Martha Minow & Elizabeth V. Spelman, Judge Richard A. Posner, Hilary Putnam, Margaret Jane Radin, Catharine Wells, and Cornel West, as well as commentary by Scott Brewer, Mari J. Matsuda, Frank Michelman, Ruth Anna Putnam, Richard Rorty, Joseph William Singer, and Marion Smiley).
73 See Richard A. Posner, The Problems of Jurisprudence 465 (1990), quoted in Analytic Jurisprudence Anthology, supra note 72, at 239.
74 See Posner, supra note 73, at 465.
75 Analytic Jurisprudence Anthology, supra note 72, at 219 (D’Amato’s introduction to Chapter 6, the readings on Pragmatism). The problem of defining pragmatism is echoed in H.S. Thayer, Pragmatism, in 6 The Encyclopedia of Philosophy 430, 431 (Paul Edwards ed., 1967):
In addition to some uncertainty as to the facts in the evolution of pragmatism [the familiar origin story is that Charles Peirce, William James, and others founded the “Metaphysical Club” in the 1870s at Cambridge], there are . . . several problems of interpretation. Peirce and James often gave very different accounts of what they understood by “pragmatism.”. . . .
[P]ragmatism, by virtue of being an evolving philosophical movement, is to be viewed as a group of associated theoretical ideas and attitudes developed over a period of time and exhibiting . . . rather significant shifts in direction and in formulation. . . .
Schiller, in an almost intoxicating pluralistic spirit, commented that there were as many pragmatisms as there were pragmatists . . . .
Id.
76 See Werner Callebaut, Taking the Naturalistic Turn, or How Real Philosophy of Science Is Done 53 (1993) (interview with Nickles).
77 See id. at 469 (footnote omitted) (interview with Ruse).
78 See id. at 120–21 (interview with Knorr-Cetina).
79 See generally David B. Resnik, A Pragmatic Approach to the Demarcation Problem, 30A Stud. Hist. & Phil. Sci. 249 (2000).
80 See id. at 249–50.
81 Id. at 253. In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Court cited Popper in support of “testability,” the first prong of the four-part test (testability, low error rate, publication, and general acceptance). See 509 U.S. 579, 593 (1993) (citation omitted).
82 Resnik, supra note 79, at 254–57.
83 Id. at 258.
84 Id. at 262.
85 Id. at 263.
86 Id. (citations omitted).
87 Resnik, supra note 79, at 264.
88 See id. at 263.
89 Id.
90 See Farrell, supra note 9, at 2204–05.
91 211 F.3d 1008, 1012 (7th Cir. 2000).
92 See id. at 1012, 1019.
93 Id. at 1019–20.
94 Id. at 1020–21.
95 Id. at 1021.
96 See Cooper, 211 F.3d at 1020 (alteration in original) (quoting United States v. Lundy, 809 F.2d 392, 395 (7th Cir. 1987) (noting that arson experts regularly rely on interviews with witnesses to investigate the cause and origin of fires)).
97 208 F.3d 581, 586–87 (7th Cir. 2000).
98 Id. at 585.
99 Id. at 586.
100 Id.
101 See id. at 587.
102 See Walker, 208 F.3d at 588. We say “seemingly” excluded because “the district court’s statement of its reasons” for exclusion were “not stated with optimal clarity.” Id.
103 Id. (citing Birdsell v. United States, 346 F.2d 775, 779–80 (5th Cir. 1965)) (footnote and other citations omitted).
104 Id. at 588–89 (quoting Allapattah Servs., Inc. v. Exxon Corp., 61 F. Supp. 2d 1335, 1341 (S.D. Fla. 1999)).
105 Id. at 589.
106 See id.
107 208 F.3d at 585.
108 Id. at 589.
109 233 F.3d 382, 387 (6th Cir. 2000).
110 Id. at 389.
111 Id. at 390. (citations omitted).
112 Id. (emphasis added).
113 Id. at 391 (quoting Joint Appendix at 57D).
114 Jahn, 233 F.3d at 391 (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)).
115 Id.
116 Id.
117 See id. at 392–93.
118 215 F.3d 713, 716 (7th Cir. 2000).
119 Id. at 720.
120 Id.
121 Id.
122 See id. at 720–21.
123 Smith, 215 F.3d at 721.
124 212 F.3d 306, 310 (6th Cir. 2000).
125 Id. at 313.
126 Id. at 327–28 (Batchelder, J., dissenting).
127 243 F.3d 255, 257 (6th Cir. 2001).
128 Id. at 261.
129 Id. at 262.
130 Id. at 267.
131 Alfred v. Caterpillar, Inc., 262 F.3d 1083, 1086 (10th Cir. 2001), cert. denied, 535 U.S. 928 (2002) (mem.) (quoting Appellant’s App. at 8–9).
132 See id. at 1088.
133 See id. at 1086–88 (quoting Appellant’s App. at 8–9).
134 Charles Alan Taylor, Feuding Communities and the Feudalism of Science: Democratizing the Community and/of Science, in Rhetoric and Community: Studies in Unity and Fragmentation 284, 288–89 (J. Michael Hogan ed., 1998).
135 301 F.3d 1000, 1006–07 (9th Cir. 2002) (discussing trial court’s ruling that expert testimony was not needed because “the jury could independently determine [the defendant’s] credibility”). A second ground for exclusion, not discussed here, was as a sanction, but the trial court held that either basis was sufficient to exclude the testimony. See id.
136 Id. at 1008.
137 Id. at 1012.
138 Id. at 1009, 1011, 1012 (last alteration in original) (quoting United States v. Rahm, 993 F.2d 1405, 1411 (9th Cir. 1993)).
139 288 F.3d 239, 241 (5th Cir. 2002).
140 Id. at 245.
141 Id. at 246.
142 Id.
143 Id. at 248.
144 See Pipitone, 288 F.3d at 245–46.
145 Id. at 247.
146 No. 01-55442, 2002 WL 464607, at *1 (9th Cir. Mar. 21, 2002), cert. denied, 537 U.S. 886 (2002) (mem.).
147 Id.
148 270 F.3d 681, 685 (8th Cir. 2001).
149 See id. at 688–92.
150 See id. “An expert’s finding that flows from research independent of litigation is less likely to be biased and the expert is limited to ‘the degree to which he can tailor his testimony to serve a party’s interests.’” Id. at 692 (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995) (citing Peter W. Huber, Galileo’s Revenge: Junk Science in the Courtroom 206–07 (1991))).
151 Id. at 693.
152 264 F.3d 832, 843 (9th Cir. 2001).
153 Remarks by Chief Judge Howard T. Markey, Science, Technology and Judicial Decision-Making: An Exploratory Discussion 12 (J.D. Nyhart ed., 1981) (edited transcription of the proceedings of the Sept. 23–24, 1977 Conference on the Use of Scientific and Technical Evidence in Formal Judicial Proceedings, prepared for the National Science Foundation by the Sloan School of Management at the Massachusetts Institute of Technology) [hereinafter Decision-Making].
154 See id.
155 293 F. 1013 (D.C. Cir. 1923).
156 See generally Decision-Making, supra note 153.
157 Remarks by Chief Judge David L. Bazelon, Decision-Making, supra note 153, at 14.
158 Remarks by Judge Edmund B. Spaeth, Jr., Decision-Making, supra note 153, at 17.
159 See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 600 (1993) (Rehnquist, C.J., concurring in part and dissenting in part).
160 See, e.g., Brian Leiter, The Epistemology of Admissibility: Why Even Good Philosophy of Science Would Not Make for Good Philosophy of Evidence, 1997 BYU L. Rev. 803, 815–17.
161 See Markey, supra note 153, at 12.
162 See Ronald J. Allen & Joseph S. Miller, The Common Law Theory of Experts: Deference or Education?, 87 Nw. U. L. Rev. 1131, 1137 (1993).
163 See generally Ronald L. Carlson, Policing the Bases of Modern Expert Testimony, 39 Vand. L. Rev. 577 (1986).
164 See generally Paul R. Rice, Inadmissible Evidence as a Basis for Expert Opinion Testimony: A Response to Professor Carlson, 40 Vand. L. Rev. 583 (1987).
165 See Allen & Miller, supra note 162, at 1136.
166 Id. at 1135 (quoting Rice, supra note 164, at 586).
167 See Edward J. Imwinkelried, The “Bases” of Expert Testimony: The Syllogistic Structure of Scientific Testimony, 67 N.C. L. Rev. 1, 8–9 (1988).
168 Allen & Miller, supra note 162, at 1140.
169 Id. at 1142 (footnotes omitted).
170 See id. at 1142–46 (citing Richard A. Epstein, A New Regime for Expert Witnesses, 26 Val. U. L. Rev. 757, 758–60 (1992); Peter Huber, Junk Science in the Courtroom, 26 Val. U. L. Rev. 723, 745 (1992)); see also Richard A. Epstein, Judicial Control over Expert Testimony: Of Deference and Education, 87 Nw. U. L. Rev. 1156, 1158 (1993). “Learned opinion is divided on the subject [of the status of Frye under the Federal Rules of Evidence].” Id. at 1158 n.9.
171 See Frye, 293 F. at 1014 (The scientific principle “from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”).
172 As others have pointed out, the Frye “test” (which many states still use) has developed in recent decades into numerous tests, some of which are less deferential and involve more scrutiny of an expert’s testimony. See David E. Bernstein, Frye, Frye, Again: The Past, Present, and Future of the General Acceptance Test, 41 Jurimetrics J. 385, 386–87 (2001) (“Many jurisdictions continue to adhere to Frye . . . .”); id. at 388 (“[C]ase law under Frye is slowly converging with Daubert jurisprudence”); id. at 393 (“Courts in Frye jurisdictions are beginning to . . . hold that an expert’s methodology and reasoning should be scrutinized”); id. at 404 (“Frye courts are stretching Frye beyond its original boundaries in a struggle to keep up with Supreme Court precedents”). Consequently, it is improper either to refer to Frye as outdated or to view its general acceptance test as somehow fixed. See Pamela J. Jensen, Note, Frye Versus Daubert: Practically the Same?, 87 Minn. L. Rev. 1579, 1580–81 (2003). One survey of state court opinions concerning the admissibility of several types of scientific evidence found that:
although states vary widely in how they treat certain types of scientific evidence, this variation does not correlate with the adherence to Frye or Daubert admissibility standards. The inherent . . . breadth of the inquiries compatible with either standard permits widely variable opinions concerning admissibility of a single scientific methodology.
Id. at 1619.
173 See Daubert, 509 U.S. at 589.
174 See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
175 See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 156 (1999) (citation omitted) (quoting 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence � 702.05[1], at 702–33 (Joseph M. McLaughlin ed., 2d ed. 1998)).
176 233 F.3d 734, 738 (3d Cir. 2000).
177 Id. at 744–45.
178 Id. at 747–48.
179 Id. at 750.
180 Id.
181 See Elcock, 233 F.3d at 747, 748.
182 Id. at 755–56.
183 Id. at 756–57 n.13.
184 215 F.3d 1083, 1085 (10th Cir. 2000).
185 Id. at 1086, 1088 (quoting Appellant Br. at 20).
186 See id. at 1086 (quotation omitted).
187 Id. at 1088 (citations and internal quotes omitted).
188 See Libas, Ltd. v. United States, 193 F.3d 1361, 1366–67 (Fed. Cir. 1999).
189 Id. at 1365.
190 Id. at 1366–67.
191 Id. at 1365, 1368. Here, where Libas effectively challenged the reliability of the Customs procedure, the trial court should have examined the Customs test either with a Daubert-style analysis or in some other equally searching way. Id. at 1368–69.
192 291 F.3d 993, 994 (7th Cir. 2002).
193 Id. at 997.
194 Id. (quoting Fed. R. Evid. 702).
195 291 F.3d 503, 508 (8th Cir. 2002), cert. denied, Lloyd v. Am. Airlines, Inc., 537 U.S. 974 (2002) (mem.).
196 Id. at 513.
197 Id. at 514 (quoting Tr. at 328).
198 Id. Dr. Harris “based his conclusion on [the plaintiff’s] disrupted sleep, lack of concentration and flashbacks. This was an inadequate foundation upon which to base the opinion that a physical change had taken place in [the plaintiff’s] brain.” Id. at 514–15.
199 272 F.3d 484, 485 (7th Cir. 2001).
200 Id. at 486.
201 Id. at 487. Note that the appellate panel affirmed the summary judgment in favor of the defendant; we include this case as an example of a rejection of a trial judge’s admissibility decision notwithstanding affirmance of the trial court’s judgment.
202 See id.
203 See 297 F.3d 682, 686 (7th Cir. 2002).
204 Id.
205 Id.
206 See id. at 686–87.
207 299 F.3d 1053, 1061 (9th Cir. 2002), amended by 319 F.3d 1073 (9th Cir. 2003).
208 Id. at 1064.
209 Id. at 1061.
210 Id. at 1067.
211 Id. at 1068 (quoting Jauregui v. City of Glendale, 852 F.2d 1128, 1133 (9th Cir. 1988)).
212 See 266 F.3d 993, 1001 (9th Cir. 2000), amended on denial of reh’g by 272 F.3d 1289 (9th Cir. 2001).
213 Id. at 996.
214 Id. at 1006.
215 Id. at 1004.
216 See id.
217 255 F.3d 465, 467 (7th Cir. 2001).
218 Id. “One of these [five] . . . added that [the original pathologist’s] analysis depended on views expressed in a 1981 article that had been discredited in the medical literature, and that as a result [the original pathologist’s] conclusion is worthless.” Id.
219 Id. (quoting the Administrative Law Judge).
220 Id. at 468 (citations omitted) (“[J]unk science cannot be rescued by some principle such as a doctrine that courts must receive the views of any expert who does hands-on work.”).
221 See supra notes 79–87 and accompanying text.
222 See Leiter, supra note 160, at 804–05 (citing Heidi Li Feldman, Science and Uncertainty in Mass Exposure Litigation, 74 Tex. L. Rev. 1, 1–2 (1995)).
223 Id. at 805.
224 Id. at 816–17 (footnotes omitted).
225 Id. at 814.
226 See id. at 817.
227 Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 318 (7th Cir. 1996). A LexisNexis search turned up hundreds of federal cases using this phrase, including Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).
228 George Levine, What Is Science Studies for and Who Cares?, 14 Soc. Text 113, 126 (1996).
229 See Helen E. Longino, The Fate of Knowledge 77 (2002).
230 Id. at 78–79.
231 Id. at 83–84.
232 Id. at 92.
233 Bruno Latour, We Have Never Been Modern 6 (Catherine Porter trans., 1993).
234 See Slavoj Zizek, Lacan Between Cultural Studies and Cognitivism, in Lacan & Science 291, 299 (Jason Glynos & Yannis Stavrakakis eds., 2002).
235 Id. at 300.
236 Gatowski et al., supra note 20, at 455.
237 Fed. R. Evid. 702 advisory committee’s note.
238 See Pipitone v. Biomatrix, Inc., 288 F.3d 239, 249 (5th Cir. 2002).
239 Longino, supra note 229, at 197, 201.