SUPREME COURT OF THE UNITED STATES - OCTOBER TERM, 1992
No. 92-102
WILLIAM DAUBERT and JOYCE DAUBERT, Individually and As Guardians
Ad Litem for JASON DAUBERT,
and ANITA DE YOUNG, Individually And As Guardian Ad Litem For ERIC SCHULLER,
Petitioners,
v.
MERRELL DOW PHARMACEURICALS, INC., Respondent,
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
REPLY TO BRIEF IN OPPOSITION
Merrell's extravagant verbal invective and ad hominem attacks on petitioners' experts cannon obscure the square holding below that federal judges may use the Frye test and a related "peer review requirement" to screen and exclude scientific conclusions not "generally accepted" within a judicially defined scientific community. Petitioners and several circuits disagree with the Nith Circuit's approah and contend that both ad hoc tests are foreclosed by the express language and underlying policies of the Federal Rules of Evidence. All three issues posed - the appropriateness of the Frye rule, the permissibility of judicial imposition of additional substantive burdens on expert testimony in general, and permissibility of a "publish-or-perish" peer review requirement under ther Federal Rules of Evidence - are cleanly presented, are purely legal in nature, and merit this court's review.
1. Certiorari is warranted to Resolve Conflict about the Frye Rule. [omitted here]
2.
Certiorari is warranted on the Issue of Inherent Judicial Power. [omitted here] 3. Certiorari is warranted on the Peer Review Issue.Typical of Merrell’s overstatements is its claim that petitioners regard peer review as "the functional equivalent of some scholarly inquisition to burn the heretic and reward the devout." Petitioners argue no such thing. Peer review may be an efficacious method for organizing the publication of academic journals, but it is not a surrogate for the truth-seeking function of civil and criminal justice. More fundamentally, nowhere has Congress delegated control over admissibility of scientific expert testimony to the editors of peer-reviewed journals, even if the peculiarly judicial function of deciding on the admissibility of trial evidence could be delegated to a private entity, and even if the First Amendment were not implicated by a 'forced speech' rule that automatically devalues scientific studies unless they are published for public consumption and thereby penalizes a speaker who chooses to present her work only in the litigation context.
In an argument best directed to Congress, Merrell contends that without the Frye rule and peer review, 'venal technocrats' will storm the barricades and overwhelm the mental faculties of unwitting jurors. Apart from the obvious Seventh Amendment problem presented by this argument, this Court has expressed little patience with such intellectual elitism about the capacities of jurors and of the adversarial system. It is the very "purpose of the jury ... to sort out the true testimony from the false, the important matters from the unimportant matters, and, when called upon to do so, to give greater credence to one party's expert witnesses than another's. Such matters occur routinely in the American judicial system, both civil and criminal."
Indeed Merrell need not look far to find mechanisms for the "basic screening function to protect the jury from confusing and misleading evidence." A variety of tests for scrutinizing expert testimony at the admissibility stage have been authorized by Congress, none of which the Ninth Circuit below – in promulgating its own test –saw fit even to mention.
CONCLUSION
For all of these reasons, certiorari should be granted.