Peer Dialogue: The How and What of Appropriate Validation under Daubert: Reconsidering the Treatment of Einstein and Freud

In its landmark decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court announced that the trial judge must play a gatekeeping or screening role in deciding whether proffered expert testimony constitutes sufficiently reliable “scientific . . . knowledge” to qualify for admission under Federal Rule of Evidence 702. The Court declared that the proponent of the testimony must lay a foundation establishing “appropriate validation” for the expert’s underlying theory or technique. In order to intelligently assess the adequacy of a validation foundation, the trial judge must address two questions: what must be validated, and how should it be validated? In his article, Professor Crump touches on both questions.

Professor Crump’s analysis of the second question is largely right. However, there is a serious problem with his analysis of the first question. One the on hand, Professor Crump is correct in arguing that the courts should not limit “appropriate validation” to controlled scientific experimentation and induction. On the other hand, his assertions about the judicial treatment of Einstein’s and Freud’s theories reflect and epistemological misconception—a misunderstanding relating to the state of knowledge in any given scientific discipline at a particular time.