Extra-Judicial Opinions: The Argument Against a Fifth Daubert Factor

On remand, Daubert v. Merrell Dow Pharmaceuticals, 43 F.3d 1311 (1995) (Daubert II), the Ninth Circuit commented that 'one very significant fact' is whether an expert is proposing to testify about matters growing naturally and directly out of research he has conducted independent of the litigation or whether the opinion was developed expressly for the purposes of testifying. The Ninth Circuit believed that research 'conducted independent of the litigation provides important objective proof that the research comports with the dictates of good science' and findings that flow from it are less likely to have been biased toward a particular conclusion by the promise of remuneration.

The court also opined that when reports and findings were formulated before the expert was retained, that record will limit the degree to which testimony can be tailored to serve a party's interest. Independent research also carries its own indicia of reliability as it is conducted in the usual course of business and must normally satisfy a variety of standards to attract funding and institutional support. Such testimony provides the most persuasive basis for concluding that the opinions expressed were derived by the scientific method. Although the Ninth Circuit did not rule that extra-judicial circumstances should be added to the four Supreme Court Daubert 'factors,' there is, nevertheless, superficial support by some courts in dicta that Daubert II held that an extra-judicial opinion is more reliable than one born out of the litigation. Indeed, some commentators have opined that such criteria is a fifth Daubert factor (see Tate and Heskins, 'The Fifth Element: Adding to the Daubert Criteria,' LJN's Product Liability Law and Strategy, Vol. 27 No. 6, December 2007.)