Gatekeeper with a Gavel: A Survey on Judicial Management of Challenges to Expert Reliability and Their Relationship to Summary Judgment (original) (raw)

2014, Mississippi Law Journal

Daubert and its progeny may have given judges clear substantive standards for deciding challenges to expert reliability, and great discretion to do so, but the effect of those changes has not been entirely clear. In the decade after Daubert, a few studies used empirical data to analyze the changes Daubert had made, in deciding how and why judges decide the way they do. But since those studies, there has been little analysis of the issue. This survey is intended to fill the gap, by exploring how judges actually make their reliability determinations in court. By asking state trial court judges, we can see the frequency with which such motions arise, what substantive factors are most helpful in deciding the motion, and what procedures get used. We can also measure whether, considering the state of the law, judges are comfortable with their role in deciding expert reliability, or in limiting expert testimony due to a reliability challenge. In addition to that data, this survey will also begin to empirically test an issue raised by many commentators: whether gatekeeping for expert reliability has become a type of sufficiency-of-the-evidence challenge akin to summary judgment. Asking judges questions about both motions, together, helps begin to explore that relationship on an empirical level. By measuring the actual practices of state court judges, this survey provides actual data on Daubert gatekeeping, the tools used and not used by the judiciary to that end, and the connection of reliability analyses to summary judgment.