Abstract

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.

Submitted: February 19, 2007 · Accepted: March 9, 2008 · Published: July 24, 2008

Recommended Citation

Cooper, David and Tomlin, Jonathan T. (2008) "Expert Testimony, Daubert, and the Determination of Damages," Review of Law & Economics: Vol. 4 : Iss. 1, Article 11.
Available at: http://www.bepress.com/rle/vol4/iss1/art11