Daubert v. Merrell Dow Pharmaceuticals, Inc., No. 90-55397

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore KOZINSKI and O'SCANNLAIN; KOZINSKI
Citation951 F.2d 1128
Parties34 Fed. R. Evid. Serv. 1145, Prod.Liab.Rep. (CCH) P 13,014 William DAUBERT; Joyce Daubert, individually and as Guardians Ad Litem for Jason Daubert, a minor; Anita De Young, individually, and As Guardian Ad Litem for Eric Schuller, Plaintiffs-Appellants, v. MERRELL DOW PHARMACEUTICALS, INC., a Delaware corporation, Defendant-Appellee.
Decision Date20 December 1991
Docket NumberNo. 90-55397

Page 1128

951 F.2d 1128
34 Fed. R. Evid. Serv. 1145, Prod.Liab.Rep. (CCH) P 13,014
William DAUBERT; Joyce Daubert, individually and as
Guardians Ad Litem for Jason Daubert, a minor;
Anita De Young, individually, and As
Guardian Ad Litem for Eric Schuller,
Plaintiffs-Appellants,
v.
MERRELL DOW PHARMACEUTICALS, INC., a Delaware corporation,
Defendant-Appellee.
No. 90-55397.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted April 5, 1991.
Decided Dec. 20, 1991.

Page 1129

Mary F. Gillick, Luce, Forward, Hamilton & Scripps, San Diego, Cal., Barry Nace, Paulson, Nace, Norwind & Sellinger, Washington, D.C., for plaintiffs-appellants.

Robert L. Dickson, George E. Berry, Hall R. Marston and Pamela J. Yates, Dickson, Carlson & Campillo, Santa Monica, Cal., for defendant-appellee.

Jeffrey Robert White, Washington, D.C., for amicus curiae.

Appeal from the United States District Court for the Southern District of California.

Before KOZINSKI and O'SCANNLAIN, Circuit Judges, and McNAMEE, * District Judge.

KOZINSKI, Circuit Judge.

Plaintiffs Jason Daubert and Eric Schuller suffer from limb reduction birth defects. They allege that these defects resulted from the fact that their mothers used Bendectin, a prescription anti-nausea drug, during pregnancy. The plaintiffs seek damages from the drug's manufacturer, defendant Merrell Dow Pharmaceuticals.

Plaintiffs' evidence of causation consisted primarily of expert opinion based on in vitro and in vivo animal tests, chemical structure analyses and the reanalysis of epidemiological studies. Among the contrary evidence proffered by Merrell Dow was the affidavit of a physician and epidemiologist who reviewed all of the available literature on the subject, which included more than 30 published studies involving over 130,000 patients, and concluded that no published epidemiological study had demonstrated a statistically significant association between Bendectin and birth defects. Plaintiffs do not challenge this summary of the published record.

The district court determined that plaintiffs could not meet their burden of proving that Bendectin caused Jason's and Eric's birth defects and granted Merrell Dow's motion for summary judgment. Daubert v. Merrell Dow Pharmaceuticals, Inc., 727 F.Supp. 570 (S.D.Cal.1989).

A. Expert opinion based on a scientific technique "is admissible if it is generally accepted as a reliable technique among the scientific community." United States v. Solomon, 753 F.2d 1522, 1526 (9th Cir.1985) (citing Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923)). We impose

Page 1130

this requirement because such evidence "create[s] a substantial danger of undue prejudice or of confusing the issues or of misleading the jury ... because of its aura of special reliability and trustworthiness." United States v. Amaral, 488 F.2d 1148, 1152 (9th Cir.1973); see also Learned Hand, Historical and Practical Considerations Regarding Expert Testimony, 15 HARV.L.REV. 40, 50-52 (1901). Moreover, whether expert opinion can satisfy this requirement is reviewed de novo by an appellate court, for "[t]he answer to the question about the reliability of a scientific technique or process does not vary according to the circumstances of each case. It is therefore inappropriate to view this threshold question of reliability as a matter within each trial judge's individual discretion." Reed v. State, 283 Md. 374, 391 A.2d 364, 367 (1978); see also United States v. Williams, 583 F.2d 1194, 1197-1201 (2d Cir.1978) (applying de novo...

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41 practice notes
  • U.S. v. Jones, No. 95-6096
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • March 3, 1997
    ...technique '... is generally accepted as a reliable technique among the scientific community.' " Daubert v. Merrell Dow Pharm., Inc., 951 F.2d 1128, 1129 (9th Cir.1991) (citation omitted), rev'd, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 5 In Dunagin v. City of Oxford, 718 F.2d 738, 748 ......
  • E.I. du Pont de Nemours and Co., Inc. v. Robinson, No. 94-0843
    • United States
    • Supreme Court of Texas
    • July 8, 1996
    ...293 F. 1013, 1014 (D.C.Cir.1923), which established the "general acceptance" test. 1 Daubert v. Merrell Dow Pharmaceuticals, Inc., 951 F.2d 1128, 1131 (9th Cir.1991), vacated, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 The Supreme Court held that Rule 702 did not incorporate the Frye tes......
  • In re Young Broadcasting Inc., No. 09-10645 (AJG).
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Southern District of New York
    • April 19, 2010
    ...unless the technique is "generally accepted" as reliable in the relevant scientific community. Daubert v. Merrell Dow Pharms., Inc., 951 F.2d at 1128, 1129-30 (1991), vacated, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The Frye court further stated that expert opinion based on me......
  • People v. Leahy, No. S035250
    • United States
    • United States State Supreme Court (California)
    • October 27, 1994
    ...727 F.Supp. 570, 572-576.) The Ninth Circuit Court of Appeals affirmed. (See Daubert v. Merrell Dow Pharmaceuticals, Inc. (9th Cir.1991) 951 F.2d 1128.) That court ruled that expert opinion based on methodology diverging "significantly from the procedures accepted by recognized authorities ......
  • Request a trial to view additional results
41 cases
  • U.S. v. Jones, No. 95-6096
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • March 3, 1997
    ...technique '... is generally accepted as a reliable technique among the scientific community.' " Daubert v. Merrell Dow Pharm., Inc., 951 F.2d 1128, 1129 (9th Cir.1991) (citation omitted), rev'd, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 5 In Dunagin v. City of Oxford, 718 F.2d 738, 748 ......
  • E.I. du Pont de Nemours and Co., Inc. v. Robinson, No. 94-0843
    • United States
    • Supreme Court of Texas
    • July 8, 1996
    ...293 F. 1013, 1014 (D.C.Cir.1923), which established the "general acceptance" test. 1 Daubert v. Merrell Dow Pharmaceuticals, Inc., 951 F.2d 1128, 1131 (9th Cir.1991), vacated, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 The Supreme Court held that Rule 702 did not incorporate the Frye tes......
  • In re Young Broadcasting Inc., No. 09-10645 (AJG).
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Southern District of New York
    • April 19, 2010
    ...unless the technique is "generally accepted" as reliable in the relevant scientific community. Daubert v. Merrell Dow Pharms., Inc., 951 F.2d at 1128, 1129-30 (1991), vacated, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The Frye court further stated that expert opinion based on me......
  • People v. Leahy, No. S035250
    • United States
    • United States State Supreme Court (California)
    • October 27, 1994
    ...727 F.Supp. 570, 572-576.) The Ninth Circuit Court of Appeals affirmed. (See Daubert v. Merrell Dow Pharmaceuticals, Inc. (9th Cir.1991) 951 F.2d 1128.) That court ruled that expert opinion based on methodology diverging "significantly from the procedures accepted by recognized authorities ......
  • Request a trial to view additional results

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