OF WITCHES, MADMEN, AND PRODUCTS-LIABILITY - AN HISTORICAL SURVEY OF THE USE OF EXPERT TESTIMONY

The United States Supreme Court's recent decision in Daubert v. Merrell Dow Pharmaceutical Inc. has focused attention on judicial treatment of expert testimony. A survey of the development of the forensic use of such testimony helps to explain the salient characteristics of modem American practice. The survey, in the context of medical experts, discloses a several centuries long trend toward an adversarial approach that places selection, preparation, and presentation of expert witness testimony ever more completely in the hands of the litigants. This trend has been challenged since at least the 1800s by those desiring an inquisitorial alternative featuring court's witnesses or neutral panels of experts. These proposals have generally been rejected. Daubert represents a modest step in the direction of greater judicial control of the presentation of expert evidence but raises questions about the evenhandedness of heightened judicial scrutiny of proffered expert testimony.