Evidence

The survey this year concentrates on significant Fifth Circuit decisions that further define the gatekeeping role of trial judges in determining the admissibility of expert evidence under the Supreme Court's opinions in Daubert v. Merrell Dow Pharmaceuticals and Kumho Tire Co., Ltd v. Carmichael. The Daubert standard requires that expert testimony be "scientifically valid" and that the "reasoning or methodology properly can be applied to the facts in issue." The four Fifth Circuit decisions reviewed herein illustrate the idea of Kumho Tire that Daubert reaches not only testimony on "scientific matters," but expert testimony generally. Another Fifth Circuit case during the period of this survey, Moore v. Ashland Chemical, Inc., an especially rigorous (and troubling) application of the Daubert principles in the area of clinical medicine, is not presented because the en banc decision was rendered before last year's survey was published and Moore was discussed there. In that decision, a divided en bane Fifth Circuit held that a physician cannot express an opinion on causation, however well-grounded in the principles and methodologies of clinical medicine, unless that opinion is fully corroborated by the Daubert factors. Before considering the decisions on the application of Daubert to expert testimony, however, the survey focuses on an insightful Fifth Circuit opinion in the area of judicial notice.