Skip to main content
Expert Testimony, Daubert, and the Determination of Damages
Review of Law & Economics (2009)
  • David Cooper
  • Jonathan T Tomlin
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.
  • court-appointed,
  • technical advisor,
  • expert witness,
  • daubert,
  • damages
Publication Date
March 26, 2009
Citation Information
David Cooper and Jonathan T Tomlin. "Expert Testimony, Daubert, and the Determination of Damages" Review of Law & Economics Vol. 4 Iss. 1 (2009)
Available at: