and Engineering News
7 July 2003
rules challenge courts.
Critics argue that 1993 decision on scientific evidence denies justice,
Hileman, C&EN, Washington.
years ago, on June 28, 1993, the U.S. Supreme Court issued an opinion
that laid out specific guidelines for determining what scientific
evidence is admissible in court. The guidelines established by Daubert
v. Merrell Dow Pharmaceuticals Inc. came to be known as Daubert
standards. In its decision, the high court instructed federal
judges to act as "gatekeepers" in the courtroom, applying
standards that require expert testimony to be both reliable and
relevant before it is allowed to be presented to a jury.
Under the ruling, evidence presented in court by scientific experts
must be based on a testable peer-reviewed theory with a known error
rate and must be generally accepted by the scientific community.
The Supreme Court cautioned, however, that these criteria are not
to be used as a checklist on each component of the evidence.
the time, the Daubert standards sounded reasonable to most observers.
Almost no one was in favor of allowing scientific testimony in the
courtroom that is based on pure speculation and universally rejected
by experts in the field.
critics now say, what started as an attempt to improve the quality
of scientific evidence in the courtroom has had unanticipated consequences.
They say that Daubert standards have resulted in the exclusion of
critical data, thereby compromising justice. Some judges have misinterpreted
Daubert; others have thrown out all the evidence when the scientific
experts in the case seem to disagree. Also, critics argue, judges
look at the strength of each individual component of the evidence
and exclude those components that appear weak, rather than assessing
the evidence as a whole, as scientists do.
a few judges have made the Daubert standards even stricter than
the Supreme Court intended. As a result of these developments, critics
say, judges have dismissed many meritorious cases with summary judgments.
Daubert opinion "has resulted in a concerted campaign to manufacture
uncertainty about scientific evidence," says David M. Michaels,
professor in the department of occupational and environmental health
at George Washington University School of Public Health. Since this
ruling, much more science-based evidence has been excluded from
civil cases than was previously, he contends.
there is only one expert witness who is willing to testify, and
if you strike that one out, the plaintiff's case just crumbles."
THE DAUBERT ruling, juries played a large role in assessing the
validity of scientific testimony. The plaintiff's lawyer and experts
presented their side, and the defense cross-examined them. The jury
then decided which side had stronger, more legally defensible, arguments.
Usually, judges did not exclude expert witnesses before cases went
to trial. Even when they considered the evidence to be presented
by the witnesses somewhat weak, judges usually let the cases go
forward and allowed the juries to decide on the merits of the evidence.
in tort law cases--personal injury law--scientific experts are often
excluded, greatly reducing the plaintiff's chances of winning the
case. In some instances, this means that time is saved and frivolous
cases do not go to trial. But in other instances, Daubert standards
are called into play, and plantiffs who claim to have been harmed
by a chemical may not be able to present their case to a jury.
the expert is knocked out, the plaintiff, of course, can't show
causation," says Margaret A. Berger, a law professor at Brooklyn
Law School. "So the judge will grant summary judgment for the
defendant. And that is the end of the case."
Evans, senior counsel at the American Chemistry Council, explains
it this way: "Often, there is only one expert witness who is
willing to testify, and if you strike that one out, the plaintiff's
case just crumbles. Your day in court is basically stripped."
to a study by the RAND Institute for Civil Justice, the percentage
of summary judgments granted after the Daubert decision more than
doubled, and 90% of the judgments favored the defendant.
the Daubert decision applies only to federal courts, many state
supreme courts have adopted criteria similar to the Daubert standards.
"The great majority are moving toward tightening the rules
of admissibility of scientific evidence," Evans says. Berger
adds that even those states that have not formally adopted Daubert
"screen their expert witnesses in a way they didn't before
some states have adopted standards that are stricter than Daubert.
Texas, for instance, now requires that a substance must cause at
least a doubling of an adverse effect to prove causation. For example,
if exposure to a chemical does not raise the cancer rate at least
100% over the rate in the general population, it is not considered
a factor that could have induced cancer in a particular plaintiff.
This is a much stricter standard than those used by federal agencies
in risk assessments and one that has been criticized even by lawyers
who defend industry. A less than twofold risk increase is widely
accepted as causal. Mark P. Fitzsimmons, an attorney at Steptoe
& Johnson, says the Texas ruling may be excessive. "A lot
of people, including defense lawyers, say that is arguably an overinterpretation
of the standard," he says.
STATE COURTS have not responded uniformly to Daubert. A few have
weakened their standards for admissibility of evidence. "There
are some places that have been a failure. Illinois just leaps out
at you. It has gone in the wrong direction and liberalized its standards
over the years," Evans says. "Madison County, Ill., is
one of the hell holes of the legal system. There, it is practically
impossible to challenge speculative evidence," he explains.
major problem with Daubert is that assessing scientific evidence
is "incredibly complicated," and Daubert somehow suggests
that "there can be a formula for answering these questions,"
Berger says. "To say that science has the tools for a precise
understanding of causation is probably unrealistic," she explains.
"We are at the threshold of understanding the interaction of
genetics and environment and all kinds of other possible factors.
To hinge everything on a very mechanical interpretation of causation
seems to me unfair to plaintiffs," she says.
is no way plaintiffs have the information to decide these kinds
of issues. The defendants have a much better sense of how to do
research, what research is relevant, and what research has been
done," Berger notes. "Plaintiffs have a tremendous burden,
and Daubert has exacerbated that. To keep industries from going
bankrupt because of unfounded claims, you don't have to swing so
far" in the direction of placing additional burdens on plaintiffs,
improve the situation, Berger says, judges need to realize that
the science of causation is complicated and "that applying
Daubert in such a rigid way has negative policy implications."
Also, "they need to be much more open to looking at a variety
of different kinds of evidence," she says. They should look
at the totality of studies rather than examining them piece by piece
and knocking out each component individually if it appears deficient
in any way, she says.
example, some judges eliminate animal studies from consideration
if the administered dose of a chemical is greater than what humans
are exposed to. Yet federal agencies and pharmaceutical firms use
such research all the time to help understand toxic effects. Also,
judges exclude epidemiological studies if they are weak in any way,
which expert or study is more reliable is not supposed to be part
of the judge's role," says Stanley Feldman, former Chief Justice
of the Arizona Supreme Court. "To allow the trial judge to
make these decisions just violates the essential core of one's right
to a jury trial."
biggest change resulting from the Daubert decision is that litigation
has become "astronomically expensive" because of the added
cost of Daubert hearings, Berger says. This has discouraged plaintiff's
attorneys from taking cases that rely on complex scientific evidence
unless the potential monetary damages are enormous, she says.
F. Infante, a fellow of the American College of Epidemiology and
former director of the Occupational Safety & Health Administration's
Office of Standards Review, cites a case in which he believes legitimate
science was kept out of the courtroom. He was prevented from testifying
in Chambers v. Exxon Corp., a lawsuit involving a contractor at
an oil refinery in Baton Rouge, La. After exposure to benzene, the
contractor developed chronic myelogenous leukemia (CML), a rare
form of cancer.
Infante had conducted a study that found a fourfold increase in
CML risk from benzene exposure. But the judge excluded Infante's
testimony, saying it wasn't strong enough, and issued a summary
judgment in favor of the defendant. "It seems to me the judge
was making a scientific determination when he did not have the expertise
to do that," Infante says.
Hollander v. Sandoz Pharmaceuticals Corp., a case involving the
lactation suppressor Parlodel, the judge excluded animal studies
and case reports as unreliable. He said the results of animal studies
could not be extrapolated to humans. Case studies are unreliable,
he said, because they "do not eliminate confounding variables."
But scientists routinely use both types of research in risk assessments.
RAND STUDY confirms that judges are applying a very strict standard
to scientific evidence. They are excluding evidence if it fails
to meet even a single one of the Daubert standards, even though
the Supreme Court ruling warned judges not to use the criteria as
says it is understandable that courts may use a stricter standard
for the admissibility of scientific evidence than regulators at
the Food & Drug Administration or the Environmental Protection
Agency. FDA regulators act for preventive public health purposes,
he says. "They see some things that bother them, like adverse
effects from a drug, and move fast to do something for a public
health purpose," he explains.
O. Faulk, an attorney at the Texas firm Gardere Wynne Sewell, agrees.
"There is a huge difference between what goes on in regulatory
agencies and in the courts," he says. "Regulatory agencies
are supposed to take the most conservative evaluation possible that
will protect the maximum number of people," he says. In courts,
"we're charged with the responsibility of determining as a
matter of fact whether or not it is more likely that a substance
causes a particular disease in a particular person. That is a totally
different inquiry," he explains.
also claims that if an expert uses sound science and methods and
explains all of the evidence to a judge, the judge will look at
the totality of the evidence rather than striking it down piece
by piece. He considers Daubert a neutral ruling that simply requires
the scientific rigor of expert testimony "to be equal to what's
outside the courtroom." Lawyers have a role to play in the
application of Daubert, he says. "It is their duty to make
sure the judges have all the information necessary to assess the
reliability of the evidence," he says.
contrast, Faulk, who defends petrochemical firms, does not believe
courts should take a weight-of-evidence approach to the evaluation
of scientific evidence. This "approach has no relevance whatsoever
to toxic tort cases," he says. In court, "the key is that
each of the pieces of scientific evidence has to be sufficient in
and of itself to illustrate the point that people are trying to
prove," he contends.
points out that it is "fundamentally unfair to criticize the
Daubert principle on the basis of any isolated or individual applications
of it. Sometimes it is applied correctly and sometimes not,"
he says. "The rule has done an impressive job so far in making
sure that reliable science is a part of the judicial process,"
he explains. He believes that judges should screen scientific evidence
because juries have no tools with which to judge unreliable scientific
evidence and "have to take it at face value."
is hard to say what Daubert's future will be. It seems unlikely
that the moderately conservative Supreme Court would overturn it
in the near future. There is certainly a great deal of interest
in the topic among the legal profession. Over the past decade, hundreds
of articles have been written in law reviews and scholarly journals
about the pros and cons of Daubert. Many legal scholars and lawyers
consider the judicial trends since Daubert largely negative, but
others say that it has had net positive benefits.
DAUBERT STANDARDS FOR SCIENTIFIC EVIDENCE
Daubert Supreme Court decision suggests four questions that judges
should consider in determining whether an area or field of science
is reliable enough to be used in the courtroom. The decision says
this list should not be regarded by judges as "a definitive
checklist or test," opening the door for judges to employ criteria
of their own.
the evidence based on a testable theory or technique?
the theory or technique been peer reviewed?
the technique have a known error rate and standards controlling
the underlying science generally accepted?
Decisions Together Are Used To Assess Scientific Testimony
Daubert v. Merrell Dow Pharmaceuticals Inc. This 1993 case establishes
new guidelines for admissibility of scientific evidence in federal
courts. It tells judges they must be gatekeepers and determine what
is reliable evidence and what is not. The guidelines replaced evidence
rules established in 1923 by the case Frye v. U.S., which states
that expert testimony must simply be generally accepted by practitioners
of the particular field.
* General Electric v. Joiner. This 1997 case expands the trial court's
gatekeeper role. Trial courts are called upon to assess not only
"scientific" testimony, but all testimony that can be
described as "scientific, technical, or other specialized knowledge."
It says the trial court's scrutiny is not limited to methodology,
but can extend to the expert's analysis. It states, "A court
may conclude that there is simply too great an analytical gap between
the data and the opinion proffered."
* Kumho Tire v. Carmichael. This 1999 case stipulates that the trial
judge's gatekeeper role is to be exercised for all expert witness
testimony. It says that the gatekeeper obligation is intended to
ensure that technical and all other expert testimony is both relevant
and based upon a reliable foundation prior to its admission. It
establishes that a trial judge is vested with broad authority to
determine whether and to what extent the enumerated Daubert factors
are applicable to a case.