ProfessorCharles Nesson Says
TheDaubert Project Balanced

Daubert Project
Charles Nesson(3/13/98)
Judicial Gatekeeping (Daubert)

1.    The Berkman Center at Harvard Law School is extremely proud of The Judicial Gatekeeping program.  It is a balanced and highly educational program on a major issue facing the judiciary.  It has been very well received.

2.    The fact that part of the funding was from corporations was specifically disclosed to Program Administrators for each of the conferences. Each letter from the Center had the following statement:  "Costs ofthe program will be partially (perhaps completely) covered by grants, whichwill come from corporate foundations." In addition to corporate funding, the following groups and individuals provided funds for these programs:in Texas, the Texas Bar Foundation; in Massachusetts, the Flaschner Institute. For each seminar the state judiciary conferences have made in-kind contributions by supplying lodging, food and transportation costs.

      To be clear, funding was also solicited from a plaintiffs'-oriented organization, the Roscoe Pound Foundation, but it was refused.

3.    The program content favors neither defendants nor plaintiffs.  Junk science gatekeeping is not outcome determinative. No one would argue, not even the plaintiffs, that defense counsel never use junk science. Both defense and plaintiffs counsel use it.  Trialjudges have an obligation to keep junk science out of the process whether it comes from the experts of plaintiffs or experts of defendants.

4.    All program panels are evenly balanced, and moderated in Socratic fashion. Panelists are selected and invited by the hosting conference. Each program has included both plaintiffs and defendants attorneys, along with leading scientists and judges representing a broad spectrum of views. All points of view are represented. All panelists are encouraged to present their opinions forcefully.

5.    Our editorial integrity is absolute.  None of our sponsors has opportunity or authority to review, approve, or alter in any way the content of the seminars.

6.    The Center would enthusiastically welcome additional financial contributions from individuals and groups which have traditionally represented plaintiffs.  We hope that this debate will encourage these groups to contribute so that we can expand our programs to reach more judges in more states.  Everyone will benefit from this - plaintiffs, defendants, judges, and the public.

7.    This project grew out of my academic work on evidentiary issues.  I wrote on "The Acceptability of Verdicts" in the early eighties, articulating the idea that respect for law and for the judiciary depends on the credibility of judicial verdicts, and that this in turn depends upon the evidentiary foundation that supports them. If the evidentiary foundation is weak, the structure crumbles. In the mid-eighties, I represented the plaintiffs as co-counsel with Jan Schlichtmann in the Woburn toxic tort case, chronicled by Jonathan Harr in "A Civil Action". My role in that case was to make sure the scientific evidence the plaintiffs planned to offer on causation was solid enough in form and substance to justify a plaintiffs verdict that would stand up on appeal. In the early nineties, I was co-counsel for the defense in the Daubert case in the Supreme Courtof the United States. Daubert was a confusing case because the issue argued by the plaintiffs was that the old Frye rule had been superseded by the passage of the Federal Rules of Evidence, and on this issue the defense agreed.  The question thus became what the new standard should be. On this question we advanced the concept that expert scientific opinions must be solidly grounded in evidence, and that the judges must make this foundational judgment as part of their gatekeeping responsibility to admit good evidence and exclude speculation.  The Supreme Court issued its Daubert opinion upholding our position with a leading cite to my book. I initiated this series of seminars to promote discussion and understanding of these issues in the state courts. Their purpose is to help state judges think through approaches to the issues presented by scientific expert witnesses, and to give them a fuller understanding of the implications and pit-falls of their newly articulated gatekeeping role.

8.    The Center will disclose in all of its future Daubert seminar materials the nature of our funding, and will continue to explicitly invite all  groups to participate in additional funding.

Charles Nesson
Weld Professor of Law
Director, Berkman Center for Internet & Society

Last Updated 13 March 1998