KUMHO TIRE CO. V. CARMICHAEL (97-1709) 526 U.S. 137 (1999) 131 F.3d 1433, Reversed

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

Concurrence

KUMHO TIRE COMPANY, LTD., et al., PETITIONERS v. PATRICK CARMICHAEL, etc., et al.

on writ of certiorari to the United States court of appeals for the ninth circuit

[March 23, 1999]

Scalia, J., concurring

Justice Scalia, with whom Justice O'Connor and Justice Thomas join, concurring.

I join the opinion of the Court, which makes clear that the discretion it endorses—trial-court discretion in choosing the manner of testing expert reliability—is not discretion to abandon the gatekeeping function. I think it worth adding that it is not discretion to perform the function inadequately. Rather, it is discretion to choose among reasonable means of excluding expertise that is fausse and science that is junky. Though, as the Court makes clear today, the Daubert factors are not holy writ, in a particular case the failure to apply one or another of them may be unreasonable, and hence an abuse of discretion.