Friday, August 2, 2013
A new study by Andrew W. Jurs and Scott DeVito revisits – and disagrees with - the innovative 2005 study by Edward Cheng and Albert Yoon that examined the impact of Daubert on litigant behavior: specifically, litigants' likelihood to remove cases from state to federal court.
Since these studies are based on the idea that litigants might remove cases to federal court to take advantage of Daubert, it would be interesting if litigators could comment (below) on whether they actually do seek removal (or fight removal) based on state/federal variance in expert gatekeeping standards . . . .
Here’s the information on the new study:
Andrew W. Jurs (Drake University Law School) and Scott DeVito (Florida Coastal School of Law)
Catholic University Law Review, Vol. 62, 2013
While Daubert was clear
in its rejection of Frye and the substantive standard for expert admissibility,
its effect on litigants has been hotly debated. Several studies since 1993 used
quantitative analysis through case study analysis and judicial surveys, to
measure Daubert’s effect. Yet these methodologies have reached contradictory
results. In 2005, Edward Cheng and Albert Yoon offered a revolutionary new
approach in their work Does Frye or Daubert Matter? A Study of Scientific
Admissibility Standards. They proposed that studying removal of cases from
State Court to Federal Court in the period 1990 to 2000 could quantitatively
demonstrate Daubert’s true effect. It works because a litigant could, by
removing a case to federal court, switch scientific admissibility standards in
some circumstances. The aggregate change in behavior of all litigants can
therefore be measured.
We agree that removal rate offers the best hope for assessing the true effect of Daubert, and so in this study we offer our analysis of removal rates using econometric tools never before applied in this area. Our analysis reveals a startling discovery: Daubert is the stricter standard for expert admissibility. Not only does a change removal rate after Daubert clearly demonstrate this result, but it is confirmed through a “shift back” to state courts when the state also adopts Daubert and removal no longer entails a change in standards. Our results directly contrast with Cheng & Yoon’s conclusions, and so we also revisit their study and deconstruct its methodology piece-by-piece. In so doing, we will describe several errors in that study both explaining the different results but also ultimately undermining its validity.
Ultimately, our research into aggregate case data from real cases demonstrates a new and conclusive finding: Daubert has been the stricter standard.
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