It's a truism that Americans are a litigious lot. We have more lawyers per capita than just about anybody, and we sue each other at the drop of a hat.
What's also true is that a large number of disputes that wind up in court involve scientific, technical, or medical evidence. Litigation ranging from product liability lawsuits to environmental challenges of industry practices to patent disputes to criminal cases often hinges on technical issues. And that brings scientists; engineers, and physicians into courtrooms as expert witnesses. This intersection of science and the law is not always a tranquil one.
The job of expert scientific witnesses is to inform juries and judges of the merits of technical evidence that can affect the outcome of a court case. It sounds like a straightforward task, but it's not, judges and most of the people who comprise juries often are almost completely ignorant of the simplest scientific concepts. Experts, it seems, can be found to take one or the other side of any scientific issue. And some of the stuff that's introduced into courtrooms as serious science is complete drivel-what's come to be known as "junk science."
A symposium at the American Chemical Society national meeting in Las Vegas sponsored by the Division of Chemistry & the Law delved into some of the issues confronting the legal system with regard to testimony by scientific experts. I sat in on some of the symposium sessions and came away impressed by the commitment of the speakers (most of whom were practicing attorneys) to making expert testimony an effective tool in the courtroom. But I also came away wondering whether the vastly different cultures of science and law could ever reach a comfortable understanding of each other.
Patricia M. Ayd, an attorney with Zupkus & Ayd, Greenwood Village, Colo., titled her talk "Are Jurors, Lawyers, or Judges Smart Enough To Understand Scientific Evidence?" Ayd pointed out that, whatever one thinks about juries, the Seventh Amendment to the U.S. Constitution guarantees a defendant the right to a jury. And leaving consideration of sophisticated scientific evidence to a judge is no solution, Ayd said. "Studies show that judges do a worse job than juries in understanding scientific evidence. "So, she concluded, "If we want the system to work it is important to present evidence in a way the jury can understand."
Ayd believes that lawyers must work to educate a jury when presenting scientific evidence. "Expect the jury to learn and convey that expectation," she said. "Identify the scientific information necessary for resolution of the issue. Identify the facts necessary for resolution of the issue. And apply the science and the facts to formulate an opinion." Many of the complaints leveled at juries' inability to grasp scientific evidence-that jury members aren't smart enough or educated enough, that they can't focus on complicated evidence, that they are swayed by irrelevant factors-are, in fact, the fault of attorneys who do not take the trouble to educate a jury, Ayd claimed.
"Chemists, attorneys, judges, and jurors pursue different goals and use different methodologies, criteria, and standards to determine the content, validity, and credibility of an expert's testimony," said Carl B. Meyer, formerly a college chemistry professor and currently an attorney with Kapsa & Meyer, San Diego. Meyer said that natural scientists, engineers, medical professionals, and lawyers all bring different world views to a courtroom, and that these differences affect their performance during a trial.
Several of the speakers at the symposium drew distinctions between science and the law that often lead to problems in the courtroom. Robert A. Bohrer, a law professor at California Western School of Law, San Diego, for example, focused on three basic differences between the two:
- Science is digital-it focuses on measurement; law is analogical-it depends on precedent.
- Science is predictive, general, and replicable; law is retrospective and particular.
- Science is objective and universal; law is normative and contingent.
Integrating science into legal decision-making involves "integrating a predictive model limited to variables that can be generalized into a retrospective process that seeks an understanding of the significance of difference," Bohrer observed.
Not all of the symposium speakers were sanguine about the state of the legal system and how it handles expert testimony. Michael D. Kaminski, of Foley & Lardner, Washington, D.C. (in a paper presented by Foley & Lardner colleague Bern D. Saxe) said: "Junk science is a major problem facing courts today. The low level of scientific literacy of judge and juries compounds the problem." Kaminski pointed to the 1993 decision in Daubert v. Merrell Dow Pharmaceuticals as a step in the right direction because it established trial judges as "gate keepers" in evaluating expert scientific testimony at the outset of a trial. Although there are no limits on the admissibility of purportedly scientific evidence, Kaminski said, the judge must ensure the reliability of expert witnesses using four guidelines: a theory being presented by an expert can and has been tested; the theory has been subjected to peer review; the known or potential error rate associated with the theory; and the "general acceptance" of the science being offere
"Reform is in order," Kaminski concluded. "It is not clear whether Daubert will provide that reform. Although judges and juries are often woefully scientifically illiterate, they do strive to decide cases fairly. The problem is getting scientific facts before them in a way they understand.
Leaving the symposium to catch my flight back to Washington, D.C., I was somewhat reassured by the presentations-the system isn't perfect, but it can be made to work. Then I read the lead story in the Sept. 10 New York Times business section, a news analysis on the $3.5 billion in punitive damages awarded by a Louisiana jury to 8,000 class-action plaintiffs. The award was a result of a 1987 railway fire involving a tank car carrying butadiene. The fire caused no widespread injury or death (C&EN, Sept. 15, page 11).
Surely, I thought, there were experts who testified that it was very unlikely that the plaintiffs had suffered lasting medical damage because of the fire. If so, the jury ignored them. And you have to wonder about a system that can reach such a screwy decision.
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