Copyright (c) 1999 DePaul Law Review
DePaul Law Review
ARTICLE: GUARDING THE GATE TO THE COURTHOUSE: HOW TRIAL JUDGES ARE USING THEIR EVIDENTIARY SCREENING ROLE TO REMAKE TORT CAUSATION RULES
49 DePaul L. Rev. 335
Lucinda M. Finley *
Vigorously exercising their role as evidentiary "gatekeepers" - a task assigned to them by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. 1 - federal trial judges in products liability cases have been doing far more than screening proposed expert testimony to determine admissibility. The Daubert gatekeeper power has become a potent tool of tort lawmaking. Under the guise of admissibility determinations, federal judges have been making significant substantive legal rules on causation by substantially raising the threshold of scientific proof plaintiffs need to get their expert causation testimony admitted, and thus survive summary judgment. While the decisions purport to be no more than deferential nods to the criteria of science, judges have actually been making legal rules about what types and strengths of scientific evidence are necessary in order to prove causation. The emerging legal rule is that plaintiffs' experts must be able to base their opinions about causation on epidemiological studies, and that these studies standing alone must show that the population-wide risk of developing the disease in question, if exposed to defendants' products, is at least double the risk without exposure.
In the process of developing this legal rule, judges in products liability cases have been making profoundly normative judgments about the social allocation of risk and who should bear the burden of scientific uncertainty or controversy - injured people or manufacturers of the products alleged to have caused those injuries? Few of the opinions announcing or applying ...
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