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are situations where what is generally accepted is not proper behavior. [The T.J.
Hooper, 60 F.2d 737 (C.C.A.2 1932).] Finally, the Frye rule proved difficult to
administer, encouraging judges to allow broad latitude for the admission of
questionable evidence.
c) The Daubert Case
The Frye rule was reviewed by the U.S. Supreme Court in the Daubert case.
[Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).] This was a case
brought by two children born with birth defects that they claimed were caused by
an anti- nausea drug, Bendectin. The only such drug approved by the FDA (Food
and Drug Administration) for pregnant women, it had been given to more than
17,500,000 women before being taken off the market. Plaintiffs’ attorneys argued
that thousands of children were born with birth defects to mothers who had taken
Bendectin and this proved that Bendectin caused birth defects. Although extensive
studies had not shown Bendectin to have any teratogenic effects, plaintiffs had
“experts” who disagreed with these studies, based on their own unpublished and
unreviewed work. Using these experts, plaintiffs had filed many cases against the
manufacturer, Merrell Dow Pharmaceuticals.
The Daubert case turned on whether Bendectin, a anti- nausea drug for pregnant
women, caused non-specific birth defects. As with all cases involving non-specific
birth defects, the key scientific issue is sorting the defects allegedly caused by the
teratogen from the high (1-6%, depending on severity) background level of birth
defects. All of the formal scientific studies had shown no correlation between
Bendectin intake by a pregnant woman and birth defects in her child. The plaintiffs
had an expert who was qualified by training and experience - the main standard
pre- Daubert - but whose methods of analysis of the data were not accepted by
other scientists and had not been subjected to peer review in the literature. The trial
court excluded the evidence, holding that the federal rules required the judge to act
as a "gatekeeper" to prevent the jury from hearing unreliable evidence or evidence
whose value was outweighed by its prejudicial nature. Prejudice jury was
especially important in the Daubert case because of the emotional appeal of a birth
injured baby plaintiff. The judge knew that if there was any evidence to support the
plaintiff's case, it would be very difficult for the jury to find against the plaintiff.
This created a special duty to assure that the plaintiff's evidence was scientifically
valid.
Plaintiffs had not been successful in any of the Bendectin lawsuits at the time of
the Daubert case, but the costs of defense were so high that Merrell Dow had taken
the drug off the market. It was assumed by plaintiffs that they would eventually get
a substantial settlement from Merrell Dow, either because they would finally win
one of the cases, or just to end the defense costs. In the Daubert case, the trial
judge determined that plaintiff’s experts were not credible because their evidence
did not meet the Frye test requirements of general acceptability. Such a finding is
critical to the defense because it stops the lawsuit before the costs are too high, plus
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