Daubert and the Exclusionary Ethos: The Convergence of Corporate and Judicial Attitudes towards the Admissibility of Expert Evidence in Tort Litigation*

The article traces the way admissibility jurisprudence following Daubert has come to emphasize the importance of strict judicial gatekeeping; making it more difficult for plaintiffs to succeed in tort and product liability litigation. This exclusionary ethos appears to have been shaped by a range of values and interests which appear closely aligned to the perspectives promoted by corporate-sponsored proponents of tort and evidence reform. The effects of the exclusionary ethos are explored through an example of judicial gatekeeping in recent mobile telephone litigation and a review of judicial surveys of post- Daubert attitudes toward expert evidence. The role of corporate-sponsored amicus briefs in the influential Supreme Court Kumho Tire Co. Ltd. v Carmichael appeal, extra-legal mobilization by conservative think tanks in litigation around electric and magnetic fields (EMF), and a qualitative citation analysis of federal court judgments, are then used in a preliminary attempt to trace the influence of corporate lobbying and social problem rhetorics on judicial attitudes and practice.