Daubert v. Merrell Dow Pharmaceuticals Essay

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The ruling in Daubert v. Merrell Dow Pharmaceuticals (1993) sets a standard for accepting expert testimony, and it also provides tests for accepting the evidence experts provide in federal court. In this case, the U.S. Supreme Court ruled unanimously in favor of the 1975 Federal Rules of Evidence (FRE), which had superseded the Frye Rule. This rule (sometimes called the Frye Standard) had been an accepted test in federal courts since 1923 after the ruling in Frye v. United States (1923), in which a polygraph test had been admitted as evidence in the case. The Frye ruling dictated that if an expert submits a scientific method that had been generally accepted in the scientific community, and the expert was relevant and credited within the field in question, then that expert’s testimony was admissible as evidence in a court of law. When the FRE was ruled as a superseding entity to the Frye Rule, the court dictated that reliable principles and methods must be used when an expert gives his or her testimony.

The Daubert decision addresses the ethical issue of admitting scientific evidence that is not necessarily reliable as evidence in court. Under the Frye Rule, methods that were generally accepted in the scientific community were admissible in court, but under the FRE, the requirements became stricter and limited to those principles and methods that were reliable, as opposed to simply generally acceptable. Prior to FRE, debate could center not on the evidence itself, but on its “acceptability” in the scientific community. If justice is a search for truth it would be ill-served by such debates. This decision helps prevent unreliable methods or principles from being admissible as evidence during a trial.

In the Daubert case, the Dauberts and the Schullers sued Merrell Dow Pharmaceuticals under the premise that Bendectin (the trade name for Pyridoxine/doxylamine), a drug used to alleviate morning sickness and other forms of nausea, had caused birth defects in Jason Daubert and Eric Schuller after their mothers had taken the drug, which was normally issued during pregnancies to women with morning sickness. The case was first heard in a California state court; however, Merrell Dow managed to move the case to federal district court and then moved for a summary judgment on the basis that the plaintiffs would not be able to find evidence that stated that science had found any concrete link between Bendectin and birth defects to support their claim. In addition to these claims, a well-known and credible expert in the realm of chemical exposure and its effects on humans, Dr. Steven H. Lamm, testified on behalf of Merrell Dow. Lamm testified that after reviewing all of the extant literature on Bendectin (more than 30 studies involving at least 130,000 patients), the drug was not shown to be a substance that causes birth defects in human fetuses. Daubert submitted a reanalysis of the epidemiological as well as several other different kinds of evidence. The District Court granted the motion to the respondents, Merrell Dow, on the basis that Daubert’s evidence did not meet the Frye Standard and had not gained general acceptance in its field. Further, the court stated that other Courts of Appeals had repeatedly not accepted reanalysis of epidemiological studies that had not yet been published, and so they did not accept the reanalysis as it was “unpublished, not subjected to the normal peer review process and generated solely for use in litigation.”

The District Court granted summary judgment to Merrell Dow, invoking the Frye Rule. Daubert responded by appealing the case to the Ninth Circuit, which promptly decided that the District Court had made the correct decision in granting summary judgment. Daubert then appealed to the Supreme Court, asking the court to finally end the dispute over which rule took precedence, the FRE or the Frye Rule. Justice Harry Blackmun took the lead in writing the opinion of the court, taking into consideration more than 20 amicus curiae (friend of the court) briefs, including one submitted jointly by the New England Journal of Medicine, the Journal of the American Medical Association, and the Annals of Internal Medicine. This brief did not ascertain a link between Bendectin and birth defects; however, it did assert that when scientific opinion is not subject to peer review and the publication review process, but is still made available to a court of law, the final opinion of the court may be biased or incorrect. Without such checks as peer review and publication, scientific data or opinion should not be held as legitimate admissible evidence.

It was the opinion of the court that the lower courts had made a mistake in invoking the Frye Rule, as “generally accepted” in the scientific community could not stand as solid evidence in a court of law. Blackmun delivered the opinion of the court, outlining it in four parts: Parts I and II-A explained the FRE’s absence of “general acceptance” when assessing expert testimony, and the rules setting limitations on the admissibility of an expert’s testimony were agreed upon unanimously; while the opinion displayed in parts II-B, II-C, III, and IV was agreed on by only seven of the justices. These parts stated that judges would make a preliminary assessment to determine expert witnesses and that “cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof, rather than wholesale exclusion under an uncompromising

‘general acceptance’ standard” were the correct ways of disproving or challenging valid evidence. Chief Justice William Rehnquist filed an opinion dissenting with the latter parts of Blackmun’s opinion (still concurring with parts I and II-A) and was joined by Justice John Paul Stevens. Blackmun opined later in his filing that although law and science were similar in their search for truth, they differ greatly, saying that “[s] scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly.”

Clearly, the tests associated with the FRE do not guarantee a final disposition of scientific conclusions, but rather open the door to revision with further research. Issues may be revisited in future cases as science moves forward. It is not only Blackmun’s “finality” of a legal ruling that is challenged, but the rule of precedence on which much of U.S. law is based. However, though FRE does not give the clean cleavages and neat black-and-white contours allowed by court rulings under Frye, it is far more realistic in terms of the tentative nature of scientific findings; it is, in some ways, an important triumph of rigor over rigidity.


  1. Annas, George J. “Scientific Evidence in the Courtroom—The Death of the Frye Rule.” Legal Issues in Medicine, v.330/14 (1994).
  2. Federal Evidence Review. “Federal Rules of Evidence ” http://federalevidence.com/rules-of-evidence#Rule701 (Accessed May 2013).
  3. Legal Information Institute. “Daubert v. Merrell Dow Pharmaceuticals (92-102), 509 U.S. 579 (1993).”
  4. Cornell University Law School.

http://www.law.cornell.edu/supct/html/92-102.ZO.html (Accessed May 2013).

  1. Orofino, Suzanne. “Daubert v. Merrell Dow Pharmaceuticals, Inc.: The Battle Over Admissibility Standards for Scientific Evidence in Court.” Journal of Undergraduate Sciences, v.3 (Summer 1996). http://www.hcs.harvard.edu/~jus/0302/orofino.pdf (Accessed May 2013).

Death Row

The ethical issues surrounding death row are many. The practice of capital punishment itself is the focus of ethical debate, as are methods of execution and the length of time before execution. Death row, where inmates awaiting execution are housed, has its own set of ethical issues. Death row is typically a separate section of the prison, inmates are treated differently, and their potential impending execution remains with them at all times. This can have greater psychological impact on prisoners, resulting in depression, suicidal tendencies, or violence toward others.

Death row is a physical location. In some prisons death row may be segregated from the rest of the prison in a separate building or it may only be a designated cell block within the larger prison. Typically, death row is maintained near the execution chamber. While in most cases the execution chamber is not within sight of the cells on death row, some prisons move prisoners from cell to cell so that each prisoner is closer to the execution chamber as their date of execution arrives. The proximity to the execution chamber in some ways is for the sake of convenience and in others this has historically has been a way to keep the thought of the final punishment in the minds of the condemned. The finality of the punishment and the proximity of the execution chamber were historically designed to increase the condemned’s sense of guilt and repentance.

Because the structure of death row is as different as the structure of the different prisons that house this location, the experiences of death row inmates can vary greatly. The physical location and its amenities and potentials for human interaction are different from prison to prison. There is no uniform format for a death row. However, death row is typically a microcosm of the prison in which it is housed. In prisons that are based on a pod system, where several inmates may share a common area between individual cells, death row is similarly constructed and there is increased human contact among prisoners, as the inmates have roommates with whom they share their experience. In more traditional prison settings, death row is a series of single cells with no cell mates and with controlled interactions between the cells as inmates share only the corridor. In these situations, the only direct interaction is with correctional officers, chaplains, lawyers, and prison officials.

Interaction with others is a point of ethical concern regarding death row. Depending on the prison, a condemned inmate may not spend his or her entire sentence on death row. Some prisoners may spend a portion of their sentence in the general population, such as until all but the final appeal have been rejected. However, in other prisons a sentence of death results in all time served on death row, unless the sentence is commuted to life in prison. Some prisons allow death row inmates to take recreation with the general population; others maintain the inmate’s separate status even at recreation times. Some death row inmates are allowed increased socialization with other inmates for classes, religious meetings, and occasionally meals. There is a pervasive isolation for death row inmates. Correctional officers can be inclined to be more lenient or more strict with death row inmates and adherence to rules, depending on their personal views on capital punishment or the nature of the inmate’s crime.

There has been a historical disparity in the number of minorities who have served on death row. This can result in a negative use of discretion on the parts of correctional officers due to personal biases based on race and/or ethnicity. Differences in race, ethnicity, religion, and culture can increase the sense of isolation experienced by individuals on death row. The psychological ramifications of this isolation can have a negative effect on individuals housed on death row. The pervasive sense of one’s impending execution and the relationships developed with individuals who slowly progress toward execution can increase psychological trauma associated with death. There is an increased possibility of depression, suicidal thoughts and actions, as well as hopelessness, despondency, and violence toward others. These psychological aspects not only affect inmates, but also impact correctional officers who work on death row.

The length of time an individual waits on death row for execution can increase the psychological impact. For some, arguments about cruel and unusual punishment associated with capital punishment take into account the long wait before execution, the uncertainty of the punishment, and the traumatic experience of watching fellow death row inhabitants taken to the execution chamber. For individuals who may have been wrongfully imprisoned, and who may or may not be exonerated before their execution, the experience and culture of death row can have even greater effects on their psychological and physical well-being.

Death row has a stigma all its own; it has a dark and pervasive place in popular culture as much as in penal history. An individual who spends time on death row and is not executed, because of commutation, exoneration, or the abolishment of the death penalty within that prison’s state, carries the weight of that experience. Returning to the general prison population can be difficult, as treatment by correctional officers may be different than their death row experience. Returning to the community, has greater issues and problems than typical prisoner reentry, as the stigma of death row is also the stigma of the death sentence.


  1. Jackson, Bruce and Diane Christian. In This Timeless Time: Living and Dying on Death Row in America. Chapel Hill: University of North Carolina Press, 2012.
  2. King, Rachel. Capital Consequences: Families of the Condemned Tell Their Stories. New Brunswick, NJ: Rutgers University Press, 2004.
  3. McGrath, Edwin. I Was Condemned to the Chair. New York: Frederick A. Stokes, 1935.
  4. Westervelt, Saundra D., and Kimberly J. Cook. Life After Death Row: Exonerees’ Search for Community and Identity. New Brunswick, NJ: Rutgers University Press, 2012.

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