Attorney Abuses of Daubert Hearings: Junk Science, Junk
Law, or Just Plain Obstruction?
Thomas G. Gutheil, MD and Harold J. Bursztajn, MD
J Am Acad Psychiatry Law 33:2:150-152 (2005)
Drs. Gutheil and Bursztajn are Co-directors, Program in Psychiatry and
the Law, Massachusetts Mental Health Center, Harvard Medical School,
Boston, MA. Address correspondence to: Thomas G. Gutheil, MD, 6 Wellman
Street, Brookline, MA 02446. E-mail: firstname.lastname@example.org
The U.S. Supreme Court case of Daubert v. Merrell-Dow Pharmaceuticals focused
attention on the problem of "junk science" testimony in the
courtroom, a decision that led to the emergence of the Daubert hearing
as a pre-trial screening device for determining the reliability and relevance
of expert testimony. Similar to other useful legal procedural safeguards
of due process, alas, the Daubert hearing can be misused,
as well as properly used, by attorneys bent on advocacy.
Daubert v. Merrell Dow Pharmaceuticals 
and its successors, so-called progeny, General Electric v. Joiner 
and Kumho Tire v. Carmichael , theoretically
represented attempts by the judiciary, among other goals, to raise the
level of expert testimony available to the legal system and to decrease
the perceived problem of "junk science" testimony —a
problem that was expected to increase as the complexity and specialization
of science also increased. Junk science could be generally defined as
scientific testimony based on idiosyncratic, invalid, or unreliable science,
in which the methodologies used are not generally accepted by the relevant
scientific community. 
Considered in concert with the Federal Rules of Evidence, 
especially rules 702 to 705, these cases as a group constitute, in one
respect, an ambitious and promising attempt to define and clarify the
roles of expert witnesses, the limits and bases of expert testimony,
the admissibility of the evidence on which experts rely, and similar
matters. However, in practice, as attorneys and courts have become more
familiar with the post-Daubert landscape, we have begun
to see misuses as well as appropriate uses of this ruling.
Role of the Federal Rules of Evidence
Rule 702 states:
If scientific, technical or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training or education, may testify thereto in the form of
an opinion or otherwise, if (1) the testimony is based upon 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 [Ref. , no. 702].
This rule may be considered in part to address the consultative function
of the expert to the legal system and to stress the reliability (and
by implication, relevance) criteria that should underlie that opinion.
Daubert, exhaustively analyzed elsewhere (e.g., Refs. ,
) and not further examined herein, among other effects,
turned the law's attention to the importance of establishing the reliability
(that is, repeatability) and relevance of particular expert testimony
and of ensuring that the expert's training, experience, methodology,
and resultant testimony pass muster to give the court the benefit of
sound opinion based on sound science and sound conclusions reached by
sound methodologic means. While relevance of evidence has always been
a matter for preliminary judicial determination, the novel aspect of Daubert was
the use of the gatekeeping function of the trial judges in an approach
designed to prevent unreliable expert testimony. 
The Supreme Court decisions spawned a potentially significant procedural
event in litigation: the Daubert hearing, a pre-trial
formal review, with written opinion by the trial court judge about
the suitability of the expert's proposed testimony. Forensic and
legal scholars spoke informally of expert testimony's surviving (or
not surviving) a Daubert challenge—that is, being found
to meet or not to meet the criteria for admissibility under the stated
Despite the intent to achieve the laudable goals of clarity, reliability,
and relevance, the fundamental Daubert principles—like
other ostensibly useful procedural requirements—could be misused
and abused, as well as appropriately applied.
Abuses and Misuses of Daubert Hearings
In the following discussion one caveat is called for: We do not suggest
that hearings on reliability and relevance are inherently inappropriate. Daubert challenges
may, in fact, reflect attorneys' confidence in their own experts'
views and justified suspicion of the experts' opinions on the other
side. Thus, in a best-case scenario, the challenge leads to achievement
of a just and favorable outcome, obviating the expense and uncertainty
inherent in a trial. Moreover, when an opposing expert is proffering
innovative testimony, the ethics of practice, concerns about legal
malpractice, and concerns about claims of ineffective assistance
of counsel may require such a challenge.
In contrast to these valid concerns, when the attorney feels that a case
is weak or that the client is unattractive to potential jurors, the
attorney may want to see if the opposing expert can be "knocked
out of the box" from the start by a Daubert challenge.
While this ploy poses uncertainties of its own, the effort may be
economically justifiable to the retaining attorney.
The Daubert hearing is not unique in being subject to abuse.
Many other valuable safeguards of the fundamental fairness of the legal
system exist, such as insuring that a defendant is competent to stand
trial before facing the rigors of the adversary system. Yet, in our experience
in Massachusetts courts, a motion to invoke this useful safeguard can
be and has been used as a delaying tactic to permit the attorneys to
prepare the case more thoroughly, to set the stage for a later insanity
plea, or even to foster the hope that witnesses will become less sure
about recalled testimony.
Similarly, a Daubert hearing may be requested by one side
or the other—even when the relevant science is basic, established, and
non-controversial—as a comparable delaying tactic designed to secure
some advantage by the delay, although, as the law evolves, such challenges
to established science may become less common. In our experience, challenging
the use of even absolutely standard psychological testing is a common
ploy in this category.
The Dry Run
By providing a picture of the expert in action under cross-examination,
expert depositions commonly serve as "dry runs" for trial
preparation. However, Daubert hearings have the advantage
of providing a second opportunity to probe the expert, as well as
to obtain an otherwise unavailable assessment of the trial judge's
attitudes toward the case. In those jurisdictions where depositions
do not occur or are not allowed in civil or criminal cases, thus
depriving attorneys of the opportunity to perform a dry run of the
cross-examination of the opposing expert, a Daubert hearing
may serve the purpose of obtaining an equally valuable advance look
at the opposing experts' opinions, bases, methodology, and courtroom
demeanor. The resultant data can be put to very good use by the attorney
in case preparation, mastery of the relevant literature, and the
Impeachment: Laying a Foundation
Just as moving for an unnecessary examination for competence to stand
trial may aid the attorney in laying a foundation (if only in the
public's mind) for a later insanity plea, moving for an unnecessary Daubert hearing
may lay the foundation for later efforts to impeach the expert's
reasoning on scientific grounds. Even if the expert's opinion is
ultimately not excluded, the knowledge gained in the process (the
dry run suggested in the prior section) may be helpful to the attorney
in designing more effective cross-examination for trial.
Rattling the Expert
The motion for a Daubert hearing may constitute no more
than an attempt at simple harassment of the experts, designed to shake
their confidence in their own testimony by a threshold challenge to their
approach, methodology, reasoning, and professional acceptance of the
experts' theory of the case.
In a related manner, a mid-testimony hearing may be attempted on a specious
issue, to overextend the expert's time on the witness stand, perhaps
interrupting the flow of case-related testimony that the jury hears.
This approach may generate sufficient distraction and breach of concentration
in the jury to obscure the gist and impact of the expert's testimony.
Because a Daubert hearing involves costs for the time and
participation of the parties and assistants (e.g., stenographers), the
hearing may be requested by a large, rich firm, to drive up the costs
for an opposing small, poor firm and thus to discourage or render more
difficult the latter's participation in the suit.
Similarly, because of cost restrictions from the client or insurers,
a law firm unable or unwilling to hire its own reputable expert may
be forced to put its efforts into attempting to disqualify the other
side's expert through Daubert challenges. Theoretically,
such an approach may also serve to create a record designed to refute
a later claim for legal malpractice in this situation. An attorney's
specious introduction of standards for reliability and relevance
(that no expert could meet) in this setting may also constitute an
attempt to excuse his or her failure to retain an appropriate expert.
Shooting the Messenger
A highly unusual twist in the Daubert question has occurred
with one of us (H.B.) when an attorney hired several experts, but one
of them did not present a favorable opinion after review. The attorney
presented that expert's opinion to the other side in a distorted way
that invited a Daubert challenge, which was feebly and ineffectively
resisted by that attorney. The attorney then used the successful challenge
to rationalize not paying the expert for work already done, based on
the alleged failure of the opinion to meet the standard.
While Daubert challenges to expert testimony may ultimately
succeed in elevating the scientific level of expert opinion presented
to the jury, the pre-trial hearings may also serve less idealistic purposes,
as described herein. Familiarity with the taxonomy we have outlined and
anticipation and early recognition of the potential abuses noted may
be among the keys to prevention. Educating the retaining attorney regarding
the basis for responding to a Daubert challenge and being
prepared oneself may successfully thwart the opposing attorney's attempted
abuse. This education may involve a clinically knowledgeable literature
search, outside consultation for the attorney-expert dyad, or helping
the legal system distinguish between valid and pseudo-Daubert issues.
Finally, trial judges with their focus on gatekeeping may be misled by
opposing attorneys in the manner described herein. The expert witness
may assist the retaining attorney in crafting effective responses
and in maintaining a critical perspective in a fallible justice system.
Expert participation in continuing legal education represents another
potentially beneficial, but underutilized, approach.
Daubert v. Merrell Dow Pharmaceuticals, 509
U.S. 579 (1993)
General Electric Co. v. Joiner, 522 U.S. 136
Co. Ltd. v. Carmichael, 526 U.S.
Gutheil TG, Stein MS: Daubert-based gate keeping
and psychiatric/psychological testimony in court. J Psychiatry Law
Huber P: Galileo's Revenge: Junk Science in
the Courtroom. New York: Basic Books, 1991
Federal Rules of Evidence 702
Shuman DW, Sales BD: The impact of Daubert
and its progeny on the admissibility of behavioral and social science
evidence. Psychol Public Policy Law 5:3–15, 1999