Increasingly, judges decide what science—if any—a jury hears

Although judges have always been permitted to preview and exclude expert evidence, relatively few exercised this right prior to a trio of U.S. Supreme Court decisions between 1993 and 1999, notes economist Lloyd Dixon of the RAND Institute for Civil Justice in Santa Monica, Calif. Beginning with the first of those decisions, known as Daubert v. Merrell Dow Pharmaceuticals or simply Daubert, rulings by the high court formally instructed federal judges to assume a gatekeeping role for the admission of science into trials.
The result has been a radical transformation of the rules of evidence in torts, says Margaret A. Berger of the Brooklyn (N.Y.) Law School. In more than a dozen analyses in a July 20 supplement to the American Journal of Public Health (AJPH), she, other legal scholars, academics, and attorneys outline the impacts of these judicial changes.
The reports describe an increase since Daubert in the likelihood that scientific evidence will be challenged and great variability from court to court in what potential testimony gets excluded. One leading contention among these analysts: The increased likelihood that a judge will bar plaintiffs' evidence from court reduces the chance that their case will ever reach trial.