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Daubert and the Exclusionary Ethos: The Convergence of Corporate and Judicial Attitudes towards the Admissibility of Expert Evidence in Tort Litigation*
Author(s) -
EDMOND GARY,
MERCER DAVID
Publication year - 2004
Publication title -
law and policy
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.534
H-Index - 45
eISSN - 1467-9930
pISSN - 0265-8240
DOI - 10.1111/j.0265-8240.2004.00011.x
Subject(s) - ethos , gatekeeping , law , tort reform , supreme court , federal rules of evidence , tort , adversarial system , political science , mass tort , plaintiff , appeal , exclusionary rule , jurisprudence , law and economics , sociology , liability
The article traces the way admissibility jurisprudence following Daubert has come to emphasize the importance of strict judicial gatekeeping; making it more difficult for plaintiffs to succeed in tort and product liability litigation. This exclusionary ethos appears to have been shaped by a range of values and interests which appear closely aligned to the perspectives promoted by corporate‐sponsored proponents of tort and evidence reform. The effects of the exclusionary ethos are explored through an example of judicial gatekeeping in recent mobile telephone litigation and a review of judicial surveys of post‐ Daubert attitudes toward expert evidence. The role of corporate‐sponsored amicus briefs in the influential Supreme Court Kumho Tire Co. Ltd. v Carmichael appeal, extra‐legal mobilization by conservative think tanks in litigation around electric and magnetic fields (EMF), and a qualitative citation analysis of federal court judgments, are then used in a preliminary attempt to trace the influence of corporate lobbying and social problem rhetorics on judicial attitudes and practice.