ADMISSIBILITY OF SCIENTIFIC EVIDENCE IN COURTS

In its 1993 Daubert v. Merrell Dow opinion, the United States Supreme Court articulated an entirely new set of criteria for the admissibility of scientific expert testimony. In its 1999 Kumho Tire v. Carmichael opinion, the Court extended Daubert's general holding to include non-scientific expert testimony as well. Most modem litigation relies upon the testimony of experts and this testimony can play a dispositive role in litigation. In all parts of the case, liability, causation and damages, lawyers are winning cases by using newly available techniques, suggested by Daubert and Kumho Tire, to exclude the expert testimony that links damages to the act or omission for which their client has been found liable. Our article contains medico-legal analysis of cases, beginning in the application of Israeli case law which discusses the Daubert Court's holding and explaining the scientific principles that the Court cites. The Daubert introduction links to a brief discussion of the Court's 1999 extension of Daubert to non-scientific testimony. We present a two-part model for evaluating the admissibility of scientific evidence - internal and external - in the Israeli courts. The internal examination of the scientific evidence evaluates its reliability by examining the content of the evidence and by checking that its conclusions correspond to the research methods of scientific literature. The court also has to review the abilities and skills of the expert witness. If the evidence passes the internal evaluation, the court will apply an external evaluation by examining whether the scientific evidence coincides with the other evidence presented to the court according to the specific rules of the law applied to the particular case.