Expert Testimony, Daubert, and the Determination of Damages
-
David Cooper
The Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals placed federal judges in the role of “gatekeepers” empowered to screen out unreliable expert testimony. We address the impact of “gatekeeping” on the accuracy of expert testimony and, consequently, on the accuracy of jury decision-making through a simple game-theoretic model. We find that a sufficiently high probability of excluding biased testimony is essential for accurate damages awards. Otherwise, asymmetries in the judicial process lead to damages awards that are either insufficient or excessive relative to “true” damages. We explain the conditions leading to each outcome and demonstrate that excessive damages awards are more likely to occur in complex cases. We also discuss the role of a court-appointed technical advisor and briefly explain how the “threat” alone that a judge will use such an advisor can deter biased testimony and lead to an accurate expected damages award.
©2011 Walter de Gruyter GmbH & Co. KG, Berlin/Boston
Articles in the same Issue
- Article
- Paying the Price for Being Caught: The Economics of Manifest and Non-Manifest Theft in Roman Law
- Measuring Skill in Games with Random Payoffs: Evaluating Legality
- Timing of Crime, Learning and Sanction
- Controlling Avoidance: Ex Ante Regulation Versus Ex Post Punishment
- Damages for Breach of Contract, Impossibility of Performance and Legal Enforceability
- Social Norms, Self-Interest and Ambiguity of Legal Norms: An Experimental Analysis of the Rule vs. Standard Dilemma
- Frischmann's View of "Toward a Theory of Property Rights"
- Causation and Incentives to Choose Levels of Care and Activity Under the Negligence Rule
- A Positive Theory of Strict Liability
- Theory Meets Practice: Barriers to Entry in Merger Analysis
- Expert Testimony, Daubert, and the Determination of Damages
- Split-Estate Negotiations: The Case of Coal-Bed Methane
- Attorneys' Compensation in Litigation with Bilateral Delegation
- The Paradox of Expected Punishment: Legal and Economic Factors Determining Success and Failure in the Fight against Organized Crime
- The Biasing Effects of Memory Distortions on the Process of Legal Decision-Making
- Transaction Costs, Neighborhood Effects, and the Diffusion of the Uniform Sales Act, 1906-47
- A Note on the Social versus Private Value of Suits when Care is Bilateral
- The Hidden Bias of the Vienna Convention on the International Law of Treaties
- Differential Victimization: Efficiency and Fairness Justifications for the Felony Murder Rule
- Underpricing of IPOs and Legal Frameworks Around the World
- Damages or Reinstatement: Incentives and Remedies for Unjust Dismissal
- Jury Verdicts in Drunken Driving Cases
- The Market for Lawyers and Social Capital: Are Informal Rules a Substitute for Formal Ones?
- Competition and Unitization in Oil Extraction: A Tale of Two Tragedies
Articles in the same Issue
- Article
- Paying the Price for Being Caught: The Economics of Manifest and Non-Manifest Theft in Roman Law
- Measuring Skill in Games with Random Payoffs: Evaluating Legality
- Timing of Crime, Learning and Sanction
- Controlling Avoidance: Ex Ante Regulation Versus Ex Post Punishment
- Damages for Breach of Contract, Impossibility of Performance and Legal Enforceability
- Social Norms, Self-Interest and Ambiguity of Legal Norms: An Experimental Analysis of the Rule vs. Standard Dilemma
- Frischmann's View of "Toward a Theory of Property Rights"
- Causation and Incentives to Choose Levels of Care and Activity Under the Negligence Rule
- A Positive Theory of Strict Liability
- Theory Meets Practice: Barriers to Entry in Merger Analysis
- Expert Testimony, Daubert, and the Determination of Damages
- Split-Estate Negotiations: The Case of Coal-Bed Methane
- Attorneys' Compensation in Litigation with Bilateral Delegation
- The Paradox of Expected Punishment: Legal and Economic Factors Determining Success and Failure in the Fight against Organized Crime
- The Biasing Effects of Memory Distortions on the Process of Legal Decision-Making
- Transaction Costs, Neighborhood Effects, and the Diffusion of the Uniform Sales Act, 1906-47
- A Note on the Social versus Private Value of Suits when Care is Bilateral
- The Hidden Bias of the Vienna Convention on the International Law of Treaties
- Differential Victimization: Efficiency and Fairness Justifications for the Felony Murder Rule
- Underpricing of IPOs and Legal Frameworks Around the World
- Damages or Reinstatement: Incentives and Remedies for Unjust Dismissal
- Jury Verdicts in Drunken Driving Cases
- The Market for Lawyers and Social Capital: Are Informal Rules a Substitute for Formal Ones?
- Competition and Unitization in Oil Extraction: A Tale of Two Tragedies
