During his State of the State Address shortly after taking office, Missouri Governor Eric Greitens discussed some of the problems in Missouri’s judicial system that he believed contributed to its classification as “the worst judicial hellhole in America.”1 Governor Greitens promised to address these problems, which he claimed were driving businesses and jobs out of the state.2 One critical step, according to his proposal, was to adopt the Daubert standard for expert witness testimony.3
This push towards the Daubert standard in Missouri reflects the criticism the state has received for its lenient former standard.4 The old standard required that the facts on which an expert bases his opinions “be of a type reasonably relied upon by other experts in the field.”5 This standard does not require judges to independently assess the reliability of expert evidence before admitting it for jury review.6 Critics of the old standard argued that it allowed “junk science” into evidence through expert witnesses.7
In a recent series of toxic tort cases in Missouri, these critics claimed that the evidence linking Johnson & Johnson baby powder with talc to ovarian cancer is junk science, but that the lenient Missouri expert evidence standard did not effectively bar this questionable evidence from reaching the factfinder.8 Missouri emerged as one of the hubs of talc powder litigation, which has developed into a massive area of toxic tort litigation over the past several years.9 Despite the prevalence of these cases across the country, many argue that the claims lack strong scientific support.10 While the science underlying talc-cancer claims may be uncertain, the trend of large damages awards in the Missouri cases is undeniable.11
It is in the wake of these talc powder cases that the new Missouri expert evidence rule went into effect on August 28, 2017.12 The text of the new rule mirrors Federal Rule of Evidence 702 (Rule 702).13 Because Missouri courts typically use federal decisions as persuasive authority for interpreting state law that parallels federal law, Missouri judges will likely adhere to the standard outlined in Daubert.14 Proponents of the new rule argue that the more stringent standard is a victory against junk science.15 However, this view assumes that Rule 702 and Daubert act as successful barriers against the admission of shaky science, which this Note argues is not consistently the case under current applications of the Rule.
This Note maintains that in order for Rule 702 and the Daubert standard to have their intended effect, judges need more guidance and structure in how they approach scientific admissibility decisions. An analysis of how courts following Daubert currently address novel science, specifically in toxic tort cases where some members of the scientific community label causation evidence as junk science, supports this argument. This Note will focus on procedures courts have used to make gatekeeping decisions. From a study of these procedures, this Note will suggest a model framework that courts should employ to tackle novel science issues in mass tort litigation.
Part I of this Note discusses the development of the Daubert standard, efforts to use court-appointed experts, and pre-trial science tutorials that assist the court in executing its gatekeeping role. Part II addresses the limited capacity of judges to analyze complex scientific issues, along with the limitations and criticisms regarding the use of court-appoint experts and tutorials. Part III of this Note proposes a model procedure for judges to use in assessing the admissibility of expert testimony in mass toxic tort litigations. The model procedure draws from lessons learned through judges’ varied uses of court-appointed experts and science tutorials. Judges have adapted to their gatekeeping role, but they have done so inconsistently and with varied success. The procedure recognizes the novel approaches judges have taken to Daubert issues, but it seeks to streamline those approaches to create a system that encourages efficiency and consistency in complex science cases.
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