The Expert Witness. Neither Frey nor Daubert Solved the Problem. What Can Be Done

Expert testimony flawed by intent or ignorance, has compromised truth finding in American litigation, including in medical malpractice and in product liability cases, where scientific evidence is at issue. The Federal Rules of Evidence and the Supreme Court in Daubert and its progeny have established standards for testimony that include reliability and relevance, and established judges as gatekeepers. However, because of lack of understanding of scientific issues, judges have problems with this role, and juries have even more problems in sorting out scientific evidence. Professionals and the judiciary have made some advances in solving some of these problems, but a better system involving the court's use of neutral experts and a mechanism to hold experts accountable for improprieties is needed.