Toxic Torts, Causation, and Scientific Evidence after Daubert

Causation has been a major obstacle to recovery by toxic tort plaintiffs. In 1993, the United States Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc., which held that the Federal Rules of Evidence applied to the admissibility of scientific and other expert evidence in the federal courts. The Court fashioned a flexible multi-factored test for courts to use in determining the reliability of the evidence. This article examines Daubert decision and analyzes the questions it left unanswered for toxic tort plaintiffs seeking to rely on epidemiological and other scientific evidence to prove causation. The article focuses on the special problems of scientific evidence in toxic tort cases, such as the problem of novel scientific evidence that may represent an important development, but which may not satisfy the Daubert standard. In addition, the article tackles the sometimes difficult relationship between law and science in the courtroom, particularly the disconnect between scientific certainty and legal certainty. The article concludes that as toxic tort litigation continues to challenge the traditional judicial system in unprecedented ways, the law will need to bend and shape itself to accommodate new kinds of evidence.