There is confusion in The Florida Bar and some judges concerning Florida’s recent adoption of the “Daubert” test–replacing the “Frye” test–for deciding when expert opinion evidence is admissible. In short, Daubert admitted new and novel scientific evidence that Frye would have precluded. Despite this fact, the defense bar a leapt at the opportunity to seize on the “gatekeeper” language to incorrectly argue to Florida’s judges that the “Daubert test” expects them to strike experts more often than they used to under the “Frye test.”

The former “Frye test” required all scientific expert evidence to have been “generally accepted” in the scientific community. That meant that new or novel theories could not be presented to juries. The “Daubert” test, on the other hand, allows the Court–acting as a junior scientist “gatekeeper”–to conclude that “new or novel” scientific evidence is trustworthy enough to be presented to the jury. The Daubert case itself allowed new and novel scientific evidence that Frye would have kept out! Yet, the defense bar and lawyers for large corporations have wrongly seized on the “gatekeeper” language in Daubert to incorrectly argue to judges that their role is to err on the side of excluding experts and granting “Daubert motions.”

The Status of section 90.702 and “The Daubert Test” in Florida is shaky.

On December 6, 2018, the Florida Supreme Court held that section 90.702 of the Florida Statutes is unconstitutional.  See DeLisle v. Crane Co., 258 So. 3d 1219, 1229–30 (Fla. 2018), reh’g denied, SC16-2182, 2018 WL 6433137 (Fla. Dec. 6, 2018) (holding that amendment to section 90.702, which incorporated Daubert into the state rules of evidence, violated the constitutional provision permitting the Legislature to repeal a procedural rule by the Supreme Court only by a two-thirds vote, where the Supreme Court had established Frye as the applicable standard in prior caselaw and the rule and the amendment passed the House with only a simple majority).  Although the holding was based on procedural grounds, many of the statements by the Court and several of the Florida Supreme Court justices in dissenting and concurring opinions are instructive for our understanding of the “Daubert” test. 

The Florida Supreme Court observed:

We recognize that Frye and Daubert are competing methods for a trial judge to determine the reliability of expert testimony before allowing it to be admitted into evidence. Both purport to provide a trial judge with the tools necessary to ensure that only reliable evidence is presented to the jury. Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used. With our decision today, we reaffirm that Frye, not Daubert, is the appropriate test in Florida courts.

DeLisle, 258 So. 3d at 1229.  In a footnote, the Court noted:

We also note our concern that the amendment would affect access to courts much in the same way expressed by Justice Shaw in VanBibber by imposing an additional burden on the courts. The amici in this case have described the additional length and expense Daubert proceedings create. See, e.g., Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147-49, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

Id. at 1237, n. 3 (emphasis added).  The Court also recognized that “Frye is inapplicable to the vast majority of cases because it applies only when experts render an opinion that is based upon new or novel scientific techniques.” Id. at 1230; U.S. Sugar Corp. v. Henson, 823 So.2d 104, 109 (Fla. 2002). Further, the Court reiterated that a trial court has broad discretion in determining the range of the subjects on which an expert can testify, and the trial judge’s ruling will be upheld absent a clear error.  Id; Davis v. State, 142 So.3d 867, 872 (Fla. 2014) (quoting Penalver v. State, 926 So.2d 1118, 1134 (Fla. 2006)).  

In DeLisle, the substantive holding in the case was that the trial court had properly admitted medical causation testimony that was not new or novel.  Id.  The Court praised the trial court for “heed[ing] our caution to ‘resist the temptation to usurp the jury’s role in evaluating the credibility of experts and choosing between legitimate but conflicting scientific views’.”  Id.; citing Marsh, 977 So.2d at 549; Castillo v. E.I. Du Pont De Nemours & Co., Inc., 854 So.2d 1264, 1275 (Fla. 2003).  The Florida Supreme Court held that the Fourth District had erred in disturbing the trial court’s determination.  See id.

Just seven months later, however, the Florida Supreme Court held that:

Accordingly, in accordance with this Court’s exclusive rule-making authority and longstanding practice of adopting provisions of the Florida Evidence Code as they are enacted or amended by the Legislature, we adopt the amendments to sections 90.702 and 90.704 of the Florida Evidence Code made by chapter 2013-107, sections 1 and 2. Effective immediately upon the release of this opinion, we adopt the amendments to section 90.702 as procedural rules of evidence and adopt the amendment to section 90.704 to the extent it is procedural.

In re Amendments to Florida Evidence Code, 278 So. 3d 551, 554 (Fla. 2019), reh’g denied, SC19-107, 2019 WL 4127349 (Fla. Aug. 30, 2019).  The amendments to section 90.702, mirroring the federal rule 702 counterpart, adopted or codified “the Daubert test.”  In approving the amendments to section 90.702, the Florida Supreme Court observed:

As a note to the federal rule of evidence explains, “[a] review of the caselaw after Daubert shows that the rejection of expert testimony is the exception rather than the rule.” Fed. R. Evid. 702 advisory committee’s note to 2000 amendment. “Daubert did not work a ‘seachange over federal evidence law,’ and ‘the trial court’s role as gatekeeper is not intended to serve as a replacement for the adversary system.’ ” Id. (quoting United States v. 14.38 Acres of Land, 80 F.3d 1074, 1078 (5th Cir. 1996)).

In re Amendments to Florida Evidence Code, 278 So. 3d 551, 553 (Fla. 2019), reh’g denied, SC19-107, 2019 WL 4127349 (Fla. Aug. 30, 2019) (emphasis added).  

In a well reasoned dissenting opinion, Justice Labarga added:

Indeed, the Committee, in recommending we reject the Daubert amendments, concluded they would undermine the constitutional right to a jury trial by precluding pure opinion testimony:

Experts routinely form medical causation opinions based on their experience and training. And there is always the possibility that two experts may reach dissimilar opinions based on their individual experience. However, a disagreement among experts does not transform an ordinary opinion on medical causation into a new or novel principle subject to Frye.  Marsh [v. Valyou], 977 So.2d [543,] 548 [ (Fla. 2007) ] (citations omitted).

Id. at 557 (Labarga, J., dissenting) (emphasis added).  

Justice Labarga also noted that the Florida Supreme Court has “addressed the fundamental, constitutional reason for its insistence on maintaining the utility of legitimate but competing expert opinion testimony to help juries decide cases on their merits.”  Id. at 557 (Labarga, J. dissenting).   As the Court has emphasized:

Trial courts must resist the temptation to usurp the jury’s role in evaluating the credibility of experts and choosing between legitimate but conflicting scientific views. See Castillo [v. E.I. Du Pont De Nemours & Co.], 854 So.2d [1264,] 1275 [(Fla. 2003)] (“[I]t is important to emphasize that the weight to be given to stated scientific theories, and the resolution of legitimate but competing scientific views, are matters appropriately entrusted to the trier of fact.” (quoting Berry [v. CSX Transp., Inc.], 709 So.2d [552,] 589 [569] n.14 [ (Fla. 1st DCA 1998) ]); Rodriguez v. Feinstein, 793 So.2d 1057, 1060 (Fla. 3d DCA 2001) (same). A challenge to the conclusions of … experts as to causation, rather than the methods used to reach those conclusions, is a proper issue for the trier of fact. See U.S. Sugar [Corp. v. Henson], 823 So.2d [104,] 110 [ (Fla. 2002) ]; Castillo, 854 So.2d at 1270, 1272, 1276; Rodriguez, 793 So.2d at 1060 (recognizing that “to involve judges in an evaluation of the acceptability of an expert’s opinions and conclusions would convert judges into fact-finders” to an extent not contemplated by Florida’s Frye jurisprudence). Marsh, 977 So.2d at 549-50.

Id. at 558 (emphasis added) (Labarga, J. dissenting).  Justice Labarga continued:

I agree with the Committee that the Daubert amendments create a significant risk of usurping the jury’s role by authorizing judges to exclude from consideration the legitimate but competing opinion testimony of experts. Where evidence is not based upon new or novel science, juries should be permitted to hear the testimony of experts, evaluate their credibility, and analyze and weigh their opinions and conclusions to reach a just determination on the issues presented by the case.

Id. at 557 (emphasis added).  Justice Labarga also lamented the very problem that has occurred in nearly every insurance case since Florida switched to the “Daubert” test:

Litigants in all kinds of cases also bear an increased burden. Having to provide a lengthy expert report or answers to interrogatories, then have an expert witness prepare to testify in a deposition and a Daubert hearing, then defend a Daubert motion, all with the hope of being allowed to do it all over again in trial, is very expensive.  Daubert “represents another procedural obstacle, another motion, another hearing, and another potential issue on appeal, all causing more delay and expense.”

Id. at 559 (emphasis added).  Justice Labarga noted that The Florida Bar’s Code and Rules of Evidence Committee—which had recommended against adopting “The Daubert test” in 2017, and whose recommendation the Florida Supreme Court accepted just last year—had some grave concerns about “The Daubert test”:

During [Committee] discussions, concerns were raised that litigation offering expert testimony under Daubert increases litigation costs, a prospect that only wealthy litigants can bear. Family and juvenile cases were raised as an example, since these cases often involve parties with lesser financial capabilities who must somehow participate in Daubert hearings or surrender their rights on the merits due to a lack of resources to fund these evidentiary fights. Contingency cases were mentioned as another example, in cases where some litigants will be unable to find counsel to represent them due to increased expenses associated with the use of experts. A final example was presented in hourly rate cases when many litigants may be unable to afford to pursue the merits of their claims because of the expense of Daubert hearings guaranteed to come. Comm. Report at 11-12 (citation omitted). [n.9]

Id. at 557 (emphasis added).

Additionally, a joint comment filed by past presidents of The Florida Bar and other members of The Florida Bar echoed this concern:

As many of the signers of this comment know personally, the Daubert Law has overburdened and, if adopted by this Court, will continue to overburden our already overstrained and overworked court system. The Daubert Law has resulted, and will result, in unwarranted delays, costs, and expenses in the administration of justice in every kind of case. These delays, costs, and expenses will be borne not only by the courts but by the litigants and will tend to have the most adverse impact on those who lack financial resources. Joint Comment by Past Presidents of The Fla. Bar & Other Members of The Fla. Bar at 5, In re Amends. to Fla. Evidence Code, 210 So.3d 1231 (No. SC16-181).

Id. at 559 (emphasis added).  

In any event, there is a very important point that lawyers for large corporations seem to have missed: although Daubert is now the standard for a trial court to consider when applying section 90.702—after the Florida Supreme Court’s reluctant and divided decision—the Daubert decision itself explicitly states that it was intended to be less restrictive of challenged evidence getting to the jury than the more restrictive Frye “general acceptance/peer review” standard that it was replacing!  In other words, in Daubert, the United States Supreme Court found that otherwise probative and scientifically valid evidence was being excluded under the Frye standard and the change in rule 702 was necessary to permit additional relevant evidence to be considered even if it was based on scientific methods or principles that were not yet generally accepted. See DeLisle v. Crane Co., 258 So. 3d 1219, 1227 (Fla. 2018), reh’g denied, SC16-2182, 2018 WL 6433137 (Fla. Dec. 6, 2018).  

In the (now reversed, in part) DeLisle opinion in which the Florida Supreme Court held that the Frye test was still the standard, the Court also described how the Daubert test is actually “more lenient” than the Frye test:

Despite the federal adoption of a more lenient standard in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), we have maintained the higher standard of reliability as dictated by Frye. E.g., Ramirez v. State, 651 So.2d 1164 (Fla. 1995). This standard requires a determination, by the judge, that the basic underlying principles of scientific evidence have been sufficiently tested and accepted by the relevant scientific community. To that end, we have expressly held that the trial judge must treat new or novel scientific evidence as a matter of admissibility (for the judge) rather than a matter of weight (for the jury).  Brim, 695 So.2d at 271-72 (footnote omitted).

Id. (emphasis added).  We now follow Daubert, which is “more lenient” and does not require peer review or general acceptance.  Under Daubert, these are merely factors for the trial court to consider.  

In her concurring opinion in DeLisle, Justice Pariente wrote:

I fully concur with the majority’s decision to remand for reinstatement of the final judgment and its conclusion that the 2013 legislative amendments to section 90.702, Florida Statutes (“the Daubert amendment”), infringe on this Court’s rulemaking authority. I write separately to express my belief that the Daubert amendment also has the potential to unconstitutionally impair civil litigants’ right to access the courts. See art. I, § 21, Fla. Const. Determining the admissibility of evidence in a civil or criminal case is a quintessentially judicial function. See Johnston v. State, 863 So.2d 271, 278 (Fla. 2003) (“A trial judge’s ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion.”); Cantore v. W. Boca Med. Ctr., Inc., 2018 WL 4235334, *3 (Fla. Apr. 26, 2018). This includes the admission of expert opinion testimony. In deciding whether a particular expert’s testimony is admissible, the trial court is guided by the rules of evidence, which require that the expert testimony “assist the trier of fact.” § 90.702, Fla. Stat. (2017). Further, as part of its gatekeeping function, the trial court must, if challenged by a party, determine whether the probative value of the evidence is “substantially outweighed by the danger of unfair prejudice.” Id. § 90.403. However, once the trial court determines that expert testimony will assist the trier of fact and is not unduly prejudicial, the jury is entitled to hear the expert testimony. Any other approach, in my view, reflects a mistrust of the jury system and the ability of jurors to weigh the evidence.

DeLisle v. Crane Co., 258 So. 3d 1219, 1230–31 (Fla. 2018), reh’g denied, SC16-2182, 2018 WL 6433137 (Fla. Dec. 6, 2018) (Pariente, J., concurring) (emphasis added); see also Martin L.C. Feldman, May I Have the Next Dance, Mrs. Frye?, 69 Tul. L. Rev. 793, 802-03 (1995) (“The Court declared that the Frye test was superseded by the Federal Rules of Evidence, and thereby outwardly relaxed the standard for admission of scientific evidence.”).

Unfortunately for people trying to protect their right in court when litigating against large, powerful corporations, some judges and lawyers handling cases subsequent to Daubert have applied it incorrectly:

Despite the Supreme Court’s intention that Daubert be applied flexibly, it has been observed that, in actuality, “[t]he gatekeeping role bestowed upon the judiciary has blocked more court access than it has enabled.” Allan Kanner & M. Ryan Casey, Daubert and the Disappearing Jury Trial, 69 U. Pitt. L. Rev. 281, 283 (2007). Particularly relevant in this case, defendants often exploit the requirements of Daubert as a sword against plaintiffs’ attorneys. See id. at 283-84. Others have written that Daubert has “produced a minefield clogged with ‘Daubert hearings’ that are more lengthy, technical, and diffuse than anything that preceded them.” David Crump, The Trouble with Daubert-Kumho: Reconsidering the Supreme Court’s Philosophy of Science, 68 Mo. L. Rev. 1, 1 (2003). 

DeLisle v. Crane Co., 258 So. 3d 1219, 1232 (Fla. 2018), reh’g denied, SC16-2182, 2018 WL 6433137 (Fla. Dec. 6, 2018) (Pariente, J., concurring) (emphasis added).  This is exactly what has happened in insurance coverage cases. Justice Pariente also described other problems with Daubert:

Daubert has limited access to courts in two significant ways. First, Daubert applies in substantially more cases than Frye. As stated previously, unlike Frye, which applies only to testimony which is predicated on new or novel scientific evidence, Daubert applies to all expert testimony. Kumho, 526 U.S. at 147, 119 S.Ct. 1167 (stating that Daubert “applies to all expert testimony”). Therefore, more litigants are exposed to the risk of exclusion of their experts’ testimony under Daubert.

Second, in addition to expanding the areas of expert testimony that are subject to challenge, the Daubert analysis involves more than just the Frye consideration of whether “the basic underlying principles of scientific evidence have been sufficiently tested and accepted by the relevant scientific community.” Brim, 695 So.2d at 272. Under Daubert, it is the trial judge who must ensure “that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” 509 U.S. at 597, 113 S.Ct. 2786. As explained previously, this is a multi-factor consideration. Id. at 593-94, 113 S.Ct. 2786. In other words, as the majority states, “Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges ….” Majority op. at 1229. The difference as to who makes this reliability determination is not inconsequential, as trial judges, who typically do not possess the requisite training or experience in the expert’s field, must fully understand the science before they can even attempt to determine whether it is admissible under Daubert.

Id. (emphasis added).   In short, Daubert is misguided, because it require judges–who are lawyer, not scientists–to try to become wannabe scientists in each case before deciding whether complex scientific opinions can be presented to juries. The former Frye test–correctly, many would argue–put this decision in the hands of the scientific community, not judges.

In DeLisle, the majority noted that although in 2013 the Legislature formally adopted the Daubert standard—See ch. 2013-107, Laws of Fla.—The Florida Bar’s Code and Rules of Evidence Committee recommended that the Court reject the amendment to the extent it was procedural when the Court considered the Committee’s regular-cycle report in 2017, citing “grave constitutional concerns,” in particular, that the adoption of the Daubert amendment would “deny [ ] access to the courts.” In re Amends. to Fla. Evidence Code, 210 So.3d 1231, 1239 (Fla. 2017).  

In addition to the constitutional concerns, the committee believed that the amendment would overburden the courts and impede the ability to prove cases on their merits. Comm. Report at 10. Citing numerous federal cases, the committee explained that, because Daubert covers more subject areas and involves a multi-factorial analysis to determine admissibility, versus Frye’s simple “general acceptance” inquiry, federal courts commonly must conduct multi-day Daubert hearings at substantial cost in time and money. Id.  

The committee also stated:

Florida’s judges have not been provided the level of resources and time available to their federal counterparts. The impact of Daubert procedures in Florida state courts would only worsen this disparity. Litigants in all kinds of cases also bear an increased burden. Having to provide a lengthy expert report or answers to interrogatories, then have an expert witness prepare to testify in a deposition and a Daubert hearing, then defend a Daubert motion, all with the hope of being allowed to do it all over again in trial, is very expensive. Daubert “represents another procedural obstacle, another motion, another hearing, and another potential issue on appeal, all causing more delay and expense.”

During [Committee] discussions, concerns were raised that litigation offering expert testimony under Daubert increases litigation costs, a prospect that only wealthy litigants can bear. Family and juvenile cases were raised as an example, since these cases often involve parties with lesser financial capabilities who must somehow participate in Daubert hearings or surrender their rights on the merits due to a lack of resources to fund these evidentiary fights. Contingency cases were mentioned as another example, in cases where some litigants will be unable to find counsel to represent them due to increased expenses associated with the use of experts. A final example was presented in hourly rate cases when many litigants may be unable to afford to pursue the merits of their claims because of the expense of Daubert hearings guaranteed to come.

Comm. Report at 11-12 (citation omitted); DeLisle, 258 So. 3d at 1233 (Pariente, J., concurring). Justice Pariente also noted that the concerns raised by the committee do not merely exist in the abstract. Attorney Dan Cytryn, a lawyer with “more than 35 years [of experience] almost exclusively in the area of personal injury,” urged the Florida Supreme Court not to adopt the amendment because Daubert has made “complex and moderately complex cases … more expensive to try.” Comment by Dan Cytryn at 1, In re Amends. to Fla. Evidence Code, 210 So.3d 1231). Cytryn explained that, after Daubert, his law firm “has taken a much closer look at cases that are meritorious, and perhaps are worth under $100,000, but require litigation. [They] have turned down several meritorious cases because of the additional costs and time restraints that Daubert implicates.” Id. at 2. While the impact on the workload of the trial courts or the difficulty in finding a lawyer should not be the sole consideration for determining whether a rule of procedure should be adopted, if adoption of the rule is at the expense of litigants’ constitutional right to access the courts, then the impact on the workload provides a compelling reason to reject the rule.

Although the Florida Supreme Court begrudgingly (eventually) allowed the Florida Legislature’s adoption of the Daubert standard in section 90.702 to become law, trial judges should apply the standard in a way that seeks to avoid the problems with which so many lawyers and Florida Supreme Court justices were concerned.  In other words, the burden on the party seeking to get evidence stricken should—as the Daubert opinion itself emphasized—be very high, so that defense lawyers are not encouraged to use three-day “Daubert hearings” and motions and supplemental motions and supplemental “motions to strike new opinions” and yet more “supplemental motions to supplement motions” as a sword to pummel individual plaintiffs and their lawyers (who are working on contingency because their clients cannot afford to pay them by the hour) in cases in which plaintiffs are seeking less than $30,000.00 in damages. The author of this blog has personally represented clients who offered to settle cases for as low a $5,000.00, only to have the insurance company offer nothing while spending over $100,000.00 on its own attorneys’ fees and costs to force a four-day jury trial that wasted the time and resources of the judicial system and the jurors who were called to serve on that trial. The trial occurred, as feared by the judge who opposed the adoption of the “Daubert” test, only after the insured first had to spend a lot of time and money at a “Daubert hearing”–which is essentially a mini-trial within a trial–fighting for the right to essentially do it all again in front of a jury. Then, when the matter proceeds to trial, the law provide that the plaintiff is not permitted to tell the jury that she had offered to settle the case for $5,000.00. This type of situation, simply put, is not fair to “the little guy” litigants.

Returning to the “Daubert” test, the issue for the court is simply this: whether the evidence at issue is reliable enough to trust the jury to decide.  And the proper view for judges to remember is that we in this state give juries a lot of trust.  That is a principal of Florida law, not merely a flippant statement. The judge, even under Daubert, is supposed to err on the side of letting the contested evidence be presented to a jury. It is the jury’s role to decide who wins.

The Daubert court expressly addressed what large corporations attempt to do in every case, while holding that even “shaky” scientific evidence should be allowed to go to the jury if the very relaxed admissibility standard (helpfulness to the jury) is met.  The Court wrote:

Respondent expresses apprehension that abandonment of “general acceptance” as the exclusive requirement for admission will result in a “free-for-all” in which befuddled juries are confounded by absurd and irrational pseudoscientific assertions. In this regard respondent seems to us to be overly pessimistic about the capabilities of the jury and of the adversary system generally. Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence. See Rock v. Arkansas, 483 U. S. 44, 61 (1987).

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595-596 (1993) (emphasis added); see also Wiand v. Wells Fargo Bank, N.A., 8:12-CV-00557-T-27, 2014 WL 1819616, at *1–2 (M.D. Fla. May 7, 2014) (denying both parties’ cross-motions to exclude the opposing parties’ experts).  As Wiand explained:

Trial courts are required to act as gatekeepers to ensure that expert opinions are reliable and relevant. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). This involves a three-part inquiry in which the court considers whether (1) the expert is qualified to testify competently regarding the matters she intends to address; (2) the methodology by which the expert reaches her conclusions is sufficiently reliable; and (3) the testimony assists the trier of fact, through the application of specialized expertise, to understand the evidence or to determine a fact in issue. . . .  While Daubert decisions “inherently require the trial court to conduct an exacting analysis of the proffered expert’s methodology,” it is not the role of the court “to make ultimate conclusions as to the persuasiveness of the proffered evidence.”  Quiet Tech., 326 F.3d at 1341; McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002). A “district court’s gatekeeper role under Daubert ‘is not intended to supplant the adversary system or the role of the jury.’ ” Maiz v. Virani, 253 F.3d 641, 666 (11th Cir. 2001) (quoting Allison v. McGhan, 184 F.3d 1300, 1311 (11th Cir.1999)).

Wiand, 2014 WL 1819616 at *1-*2 (emphasis added).   

The Daubert court also observed that:

Additionally, in the event the trial court concludes that the scintilla of evidence presented supporting a position is insufficient to allow a reasonable juror to conclude that the position more likely than not is true, the court remains free to direct a judgment, Fed. Rule Civ. Proc. 50(a), and likewise to grant summary judgment, Fed. Rule Civ. Proc. 56. Cf., e. g., Turpin v. Merrell Dow Pharmaceuticals, Inc., 959 F. 2d 1349 (CA6) (holding that scientific evidence that provided foundation for expert testimony, viewed in the light most favorable to plaintiffs, was not sufficient to allow a jury to find it more probable than not that defendant caused plaintiff ’s injury), cert. denied, 506 U. S. 826 (1992); Brock v. Merrell Dow Pharmaceuticals, Inc., 874 F. 2d 307 (CA5 1989) (reversing judgment entered on jury verdict for plaintiffs because evidence regarding causation was insufficient), modified, 884 F. 2d 166 (CA5 1989), cert. denied, 494 U. S. 1046 (1990); Green 680–681. 

Id. at 596. 

In summary, courts should decline large corporate defendants’ mindless (or disingenuous?) invitation to tie plaintiffs’ arms behind their backs before the fight even begins, allow plaintiffs to present their evidence, and let juries decide the facts of cases.  If defendants believe the evidence that plaintiffs’ experts want to present to the jury is so unreasonable and untrustworthy, then let defendants try to prove as much through cross examination and presentation of contrary evidence.    As the Daubert court instructed:

These conventional devices, rather than wholesale exclusion under an uncompromising “general acceptance” test, are the appropriate safeguards where the basis of scientific testimony meets the standards of Rule 702.  

Id.