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Evaluating the Experts
The U.S. Supreme Court, in its landmark Daubert decision (Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)), established an empirical standard of evidentiary reliability to ensure that only those expert opinions predicated upon demonstrably valid knowledge would make their way into evidence. Daubert further instructed that when the expert testimony comes from a discipline that purports to be scientific, as does psychology, evidentiary reliability translates to a standard of scientific validity.
The Court delineated four factors to guide the trial judge when he or she, acting as gatekeeper, assesses the scientific validity of the principles and methods underlying the expert's opinion. The two primary factors, which require direct assessment of scientific validity, are testability/falsifiability, and error rate/practice standards analysis. Daubert also identified two secondary or indirect assessment criteria that may assist the court in discharging its gatekeeping obligation: 1) peer review/publication; and 2) general acceptance.
These secondary factors, though expressed by the Court in discrete terms, are interrelated. Peer-review/publication is, in effect, a gateway to general acceptance. Unpublished work that does not find its way before the larger professional community is not likely to achieve general acceptance within that community simply because its members largely would be unaware of its existence and, therefore, would be unable to subject it to critical analysis. Thus, peer-review publication is the vehicle that is the first step to broad acceptance.
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