Evaluating Expert Admissibility in the Age of Complex Science

Daubert, and Frye before it, both contemplate that the law should employ only scientific knowledge that has achieved some foundation in the field from which it comes. Neither, however, details how this can be practically accomplished. Frye calls upon courts to employ the “general acceptance” test, but courts have no ready mechanism to survey applicable fields. Daubert calls upon judges to assess the reliability of expert opinions by evaluating the methods and principles underlying the proffered evidence. But evaluating the range of areas of expertise offered in courts today - from acoustics to zoology - would challenge even the most sophisticated scientist. In cases involving complex science, and battling experts, this is an immensely challenging task. The process of separating scientific wheat from chaff is a constant struggle and one singularly placed on the shoulders of district court judges.


Peer Review

Borrowing Peer Review from Scientists to Use in the Law

Over the years, many have suggested that judges obtain intensive science education and/or make use of court appointed experts or technical advisors to facilitate the gatekeeping task. Unfortunately, science education, though important, cannot fully prepare judges for the wide variety of cases they hear, and court appointed experts are costly and fit uncomfortably into the adversarial process. Now, there is a new approach to this problem. Actually, it is a very old tool – peer review – adapted to the needs of the modern courtroom.

Scientific journals long ago learned to rely on the neutral assessment of scientific research by those who have expertise but who have no horse in the race through peer review. Peer review asks scientists “in the particular field in which the [expertise] belongs” whether the methods and principles underlying proffered scientific evidence are reliable and valid. It is Frye’s solution to Daubert’s question.

Adapting Peer Review to the Courtroom

JuriLytics adapts the system of peer review to Expert Reports in a “double-blind” manner. We partner with editors of the top scientific journals in the respective field of scientific evidence to pick potential peer reviewers. The editors’ choices are followed in order, after a conflict check, to put together a panel of reviewers for the Expert Report under consideration. The Reviewers are invited to participate in the enterprise and they are compensated for their work. This review service is available to plaintiffs, defendants, and courts, but the Reviewers are never informed of the identity of the commissioning party. Thus, our process ensures that the reviewers are not selected to represent a predetermined viewpoint, and they do not know the identity of the principal consumer of their Review. Simply put, to the extent possible, we want to use scientific peer review to inform lawyers and the courts regarding the mainstream view of the state of the art of the science.

We believe that such a service could be utilized via a judge’s authority under Rules 706, 104(a) or, more generally, under the inherent authority of the court. Peer reviews provide judges with detailed evaluations of challenged Expert Reports from world-class academic scientists, thus providing a window into the field in question. In cases in which expert evidence will play an important role and yet its reliability is seriously disputed, the service could help make the court’s determination as to admissibility more efficient and just.



Beyond Court-Appointed Experts

Peer review has numerous important advantages over court appointed experts. First of all, it is substantially less expensive to implement. The average cost of having three independent reviews of an Expert Report should range between $10,000 and $25,000, a fraction of the cost of an appointed expert or technical adviser. If passed onto the parties, these nominal costs are not likely to be the basis for a reasonable objection. Second, it does not circumvent the adversarial process. The Reviews are in writing and the party experts have the full opportunity to respond to them. If deemed appropriate by the court, reviewers are available to be deposed, and will be represented by counsel for JuriLytics. And third, the Reviews are limited to general methodological issues presented regarding admissibility, and thus do not impinge on the jury’s fact-finding role. These inherent advantages mean that neutral peer review could be made available in a much broader range of cases than the tools already on hand and in a manner that is fair to the parties and respectful of the adversarial process.

What Judges Say

JuriLytics' peer reviews and technical advice are unchallengeable. JuriLytics provides judges and juries what they need most, the best independent understanding into illusive scientific or technical expertise. Associating JuriLytics is clearly among the best, biggest judicial decisions I've made. I'm a better judge for knowing them.

State District Court Judge