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MARGARET A. BERGER [*] I INTRODUCTION In 1948, in Michelson v. United States, [1] Justice Jackson declined to modify the common law rules on character evidence. He warned that "[t]o pull one misshapen stone out of the grotesque structure is more likely simply to upset its present balance between adverse interests than to establish a rational edifice." [2] Justice Jackson's comment is worth pondering in a very different context. Beginning in 1993, the Supreme Court, in a trilogy of opinions, has explicitly sought to rationalize the law on expert testimony. [3] This article examines Justice Jackson's prediction that a change in an evidentiary rule may realign the balance that previously existed between adverse interests. My inquiry is limited to toxic tort cases for a number of reasons. First, these are the cases that drove the demand for expert testimony reform. [4] These are the cases that produced allegations about venal experts who bring "junk science" into the courtroom [5] and that seem to have piqued the Supreme Court's interest in expert proof perhaps because of the huge amounts of damages and transaction costs at stake. [6] The first two opinions in the trilogy deal with the admissibility of expert proof on causation in toxic tort cases. Second, Justice Jackson's thesis seems applicable to toxic tort litigation because the trilogy may be leading some district court judges to exclude experts proffered by plaintiffs on the issue of causation who previously would have been permitted to testify. [7] The Federal Judicial Center conducted surveys in 1991 and 1998 asking federal judges and attorneys about expert testimony. In the 1991 survey, seventy-five percent of the judges reported admitting all proffered expert testim ony. By 1998, only fifty-nine percent indicated that they admitted all proffered expert testimony without limitation. Furthermore, sixty-five percent of plaintiff and defendant counsel stated that judges are less likely to admit some types of expert testimony since Daubert. [8] Without the means to prove causation, which is always a crucial element of the plaintiff's case, the plaintiff must lose, and the litigation ends with summary judgment for the defendant. The consequence, according to some observers, [9] is that toxic tort law is being reformulated in the federal courts to the advantage of defendants, a result that accords with Justice Jackson's predictions about the impact an evidentiary change may have. This article seeks to uncover the various ingredients that have contributed to this result. Part II contains an overview of the trilogy on expert proof and examines its message for the federal district judge. Part III examines the unstated assumptions some federal courts are making about science that affect a judge's rulings on the admissibility of plaintiffs' expert testimony. Part IV deals with a striking paradox. As every first-year law student knows, the Erie doctrine [10] requires a federal judge who sits in diversity jurisdiction to apply state substantive law. Toxic tort cases almost invariably come into federal court on the basis of diversity jurisdiction. Nevertheless, federal courts have ignored Erie in ruling on the admissibility of plaintiffs' experts, even in situations in which sensitivity to state law would seem appropriate under current Supreme Court jurisprudence, but have relied on Erie to convert rulings on the admissibility of evidence into determinations about the sufficiency of the evid ence. This conflating of sufficiency and admissibility began before the recent amendment to Rule 702, which added a sufficiency requirement to the rule. [11] Finally, Part V considers how the trilogy on the admissibility of expert proof has intersected with the Supreme Court's previous trilogy on summary judgment to move final adjudication in the toxic tort case from the trial to the pretrial stage, and from jury consideration to a decision by the judge. …

Upsetting the Balance between Adverse Interests: The Impact of the Supreme Court's Trilogy on Expert Testimony in Toxic Tort Litigation