A New Standard
The Supreme Court announced its decision on June 28, 1993. The Frye standard was out, replaced by the Federal Rules of Evidence that had been adopted in 1975. The Supreme Court decision gave the trial judge a gatekeeper role to decide what constitutes “good science,” and the justices offered the following guidelines:
1) whether the theory or technique in question can be (and has been) tested to see if it can be falsified,
2) whether it has been subjected to peer review and publication,
3) its known or potential error rate and the existence and maintenance of standards controlling its operation, and
4) whether it has attracted widespread acceptance within a relevant scientific community.
The court made clear that this list is “flexible” and that the decision to admit or reject scientific evidence must be made “solely on principles and methodology, not on the conclusions that they generate.”
The Daubert case was sent back to the Ninth Circuit, which, in 1995, using the new Daubert test, again sided with Merrell Dow. The federal Daubert standard has been adopted in 39 states (including Kansas), with seven states still using the Frye test. Missouri, along with three other states, follow a hybrid of the two.
By 1983, Merrell Dow had pulled Bendectin from the market as sales dropped and legal fees mounted. In 2013, the pharmaceutical company Duchesnay reintroduced the drug on the market under the brand name Diclegis.