SCIENCE vs. LAW


A Decade-old Rule on Scientific Evidence Comes Under Fire.

By: Peg Brickley, Philadelphia


T he latest climate change to capture the attention of environmental scientists is

taking place not in the atmosphere but in the nation’s courtrooms. There science is getting a chilly reception, argue researchers with the Project on Scientific Knowledge and Public Policy (SKAPP). They suspect that a 1993 ruling in Daubert v. Merrell Dow Pharmaceuticals is keeping reliable research out of legal proceedings and preventing certain science-based lawsuits from moving forward.


The Danbert ruling was supposed to help judges in their role as evidence gatekeepers. Determining when science is good enough to be admitted is no easy job, remarks Judge Pamela A. Rymer of the U.S. Court of Appeals for the Ninth Circuit, sitting in Pasadena, Calif. Rymer chairs the advisory committee for an American Association for the Advancement of Science (AAAS) pilot project that offers independent science experts to judges. “In some cases where the science and technology issues are especially complex, the gatekeeper can benefit from an independent expert,” Rymer explains. “The judge has to make the call, but the scientist can serve as a sounding board.”


The AAAS project is one approach to the problem the high court tackled in Daubert: How can judges evaluate technical data that are intimidating to most nonscientists? When the U.S. Supreme Court ruled on Daubert, some observers feared that in opening the courtroom doors more widely, the decision would invite “junk science” as well, confusing juries with unsupported, thinly researched theories. But a 2001 study by the Rand Institute for Civil Justice concluded that judges threw out inure scientific evidence and testimonies after the decision than before. The biggest spike occurred between July 1996 and June 1997, when the rate at which science evidence was excluded rose to 70 percent, from about 51 percent pre-Daubert.


The rise in inadmissible science has SKAPP worried, particularly because a defeat on Danbert grounds often means a lawsuit is over. “Anecdotally, we have collected reports that Dauhert is having a negative impact on the ability of individuals to get justice,” says SKAPP member David M. Michaels, an epidemiologist at George Washington University. ~We hope to design studies to find out if that’s true.” SKAPP’s analyses will attempt to capture psychological and economic data, be- cause those forces drive decisions to admit or exclude scientific evidence as much as legal and scientific principles.


Daubert’s defenders say the rule saves courts and society time and money. Among them is Christopher C. Homer, an attorney with the Competitive Enterprise Institute, a Washington, D.C., think tank. He points to decisions such as one in June by a federal appeals court in Pennsylvania that upheld a trial court decision. That ruling barred a scientist from testifying in the case of a dry-cleaning worker who had been exposed to perchloroethylene over two years of employment, developed leukemia and wanted to present expert evidence that the chemical had caused her

disease. The trial judge, however, knocked the offered expert out for failing to explain adequately the methods he used to draw his conclusions. Such instances, Homer says, demonstrate Daubert’s power to head off unworthy lawsuits: “Dauhert is a good decision that is yielding very good results.”


Dauhert contests can consume as much time, money and energy as the trial itself, challenging the skills of lawyers, the patience of judges and the pocketbooks of litigants. A Daubert challenge would most likely mean an expensive, arduous pretrial event; as a result, the challenge swings legal economics away from cases where the science is new, Michaels argues. Unless potential damages top $1 million some trial lawyers say, the risk of hiring a battery of experts to push the science past a Dauhert challenge is not worthwhile.


To SKAPP members, Daubert in action lets lawyers transform what should he a scientific inquiry into a test of the willingness to expend money. In cases involving environmental science, the deepest pockets usually belong to defendants—industries accused of exposing people to toxic chemicals, notes Sheldon Rampton, a journalist who criticized industry-funded scientific witnesses in a 2001 book, Trust Us, We’re Experts!, written with John Stauber. “The whole argument about junk science was developed by the tobacco industry for the purpose of defending itself against law-suits , and it has been taken up since then by everyone in industry,” Rampton says.


Ironically, science may be its own worst enemy when it comes to Dauhert, Michaels

observes. Scientists love to keep questioning things, and that inquisitiveness makes judges nervous. “You can manufacture uncertainty because scientists don’t always agree,” he explains. Lawyers take differences among scientists and magnify them them and as long as there is any sort of disagreement, the case does not move forward.” Rampton argues that good science deserves its day in court but that it does not need a rule to make it so: “Juries are as able to separate spurious science from the real thing as judges or attorneys are.”



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