THE USE AND ACCEPTANCE OF SOCIAL SCIENCE EVIDENCE IN BUSINESS LITIGATION AFTER DAUBERT

• Published in: Psychology, public policy, and law public policy, and law, 1999-03, Vol.5 (1), p.59-77
• Main Author: Lipton, Jack P
• Format: Article
• Language: English
• Subjects: Business; Civil Law; Human; Legal Decisions; Legal Evidence; Litigation; Social Sciences
• ISSN: 1076-8971; 1939-1528
• DOI: 10.1037/1076-8971.5.1.59

The landmark U.S. Supreme Court case of Daubert v. Merrell Dow Pharmaceuticals, which overturned the venerable Frye test for the admissibility of scientific evidence, has sparked considerable interest among scholars and practitioners, within both the law and the various sciences. The discussion of the impact of Daubert on social science evidence, however, has been largely confined to a narrow range of issues, primarily concerning criminal law and mental health. Indeed, the Daubert case thus far has received relatively scant attention in the published cases involving business litigation, and in most of these instances, the focus has been on evidence from the hard sciences rather than from the social sciences. The author explores the use and acceptance of social science evidence in business litigation within the post- Daubert era. First, the specific Daubert factors are analyzed from the perspective of social science evidence in business litigation. Second, the scope of business litigation which has been impacted-or which is potentially impacted-by Daubert is outlined and discussed. Third, various procedural issues in the post- Daubert era are explored, including motions for summary judgment to dispose of social science issues without a trial, the use of depositions and other forms of discovery within the context of Daubert, jury instructions, legal methodologies to offer and challenge social science evidence, and appellate review. Finally, conclusions and insights are offered regarding the judicial future of social science evidence after Daubert. Essentially, although not yet fully appreciated in this regard by the judicial system, the Daubert decision does provide some useful guidelines for litigators and courts to follow. Nevertheless, the general trend after Daubert has been for courts to downplay their "gatekeeper" role with respect to social science evidence in business litigation in favor of a pronounced standard of liberality with respect to admissibility.