The law is a balancing act that struggles to assimilate new ideas while maintaining useful and effective traditions.
Sometimes this balancing act works well; and sometimes it just falls apart. A case in point is Daubert v. Merrell Dow Pharmaceuticals, Inc., a United States Supreme Court case in which the frontiers of science and the cultural paradigms of the law collide. The case involves a lawsuit filed by the Dauberts against Merrell Dow in which the plaintiffs argue that Bendectin, a drug produced by Merrell Dow, and taken by Mrs. Daubert for nausea during her pregnancy, had caused birth defects in their children. The case depends on the issue of causation, a traditional tort law principle that says that, to succeed in a negligence lawsuit, a plaintiff must prove that the defendant’s action caused the plaintiff’s injury. However, because of the scientific nature of the case, the court needed expert testimony to determine causation. This point in the case, the point at which science and the law intersect, is referred to as jusriscience .
The judges at each level, from the trial court, through the appellate court, up to the Supreme Court, and then back down to the appellate court, had to weigh the scientific evidence on causation leading from the development of the drug Bendectin to the birth defects. The judges were faced with two competing lines of evidence, one presented by the plaintiffs, the other by the defendants. The defendants’ evidence included peer-reviewed articles published in scientific journals and studies issued by the Federal Drug Administration (FDA). None of these reports or articles could find a link between Bendectin and birth defects.
In response, the plaintiff’s scientific experts offered a reanalysis of the accepted data. This reanalysis demonstrated that the original data had been badly misinterpreted by previous scientists.
To determine which line of evidence should be followed, the court had to interpret Rule 702 of the Federal Rules of Evidence and Frye v. United States , a case that predated Rule 702, but that had, nevertheless, set up a standard that the federal courts had used for decades to evaluate expert testimony. Ultimately, the Supreme Court decided that expert evidence did not have to be “generally accepted” as Frye had suggested because some scientific discoveries may be “too particular, too new, or of too limited interest to be published.”
The court thus emphasized that the Rules had to be interpreted liberally rather than narrowly in determining the use of expert testimony. Still, the Supreme Court concluded that such testimony did have to “rest on a reliable foundation and (be) relevant to the task at hand.” Since the lower courts had used only the Frye standard, the case was sent back to the appeals court, which still supported Merrell Dow because the evidence produced by the plaintiffs did not demonstrate a definite causation link between Bendictin and birth defects. [See Daubert v. Merrell Dow Pharmaceuticals, Inc., (509 U.S.
579) (U.S.S.Ct.); see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (Ninth Circuit)]

Questions

1. Would Daubert v. Merrell Dow Pharmaceuticals, Inc. be a civil lawsuit or a criminal action? Explain.
2. Was Daubert v. Merrell Dow Pharmaceuticals, Inc., heard in state or federal court? Explain.
3. What legal theory or theories might be used to hold a corporation liable for the torts of an employee? Explain.
4. How does causation fit into a case like this? Explain.
5. Could a case be constructed based on strict liability in the Daubert case? Why or why not?