While lobbyists battle over tort reform on Capitol Hill, the courts have quietly carried out their own sweeping reforms in a key area: the use, or misuse, of expert witnesses.
For years, critics complained that plaintiffs lawyers used "experts for hire" in tort trials. The experts, they said. offered unfounded scientific claims about the risks of a product - "junk science" in hopes of swaying juries to award big damages. All too often, in the view of some observers, it worked.
But a '93 Supreme Court ruling turned the tables. giving judges the power to keep shaky science out of the courtroom. The court said in Daubert vs. Merrell Dow Pharmaceuticals that judges must act as "gatekeepers" against bad science in civil and criminal trials. That is, judges must make sure that all scientific evidence or testimony is based on valid methods and is relevant to the case. The fact that an expert has impressive credentials is no longer enough.
Apparently there is plenty of bad science to keep out. Since the '93 ruling, judges have kept evidence out of trials in hundreds of cases. Sometimes the ruling keeps a lawsuit from getting to
to trial at all.
There's even a mini-industry of legal publications that let lawyers track how the courts are using Daubert-- and how their clients can exploit it.
"Obviously, we think it's a good news story," said Doug Schoettinger, managing trial counsel for Dow Corning, a defendant in many breast-implant suits.
Not everyone was pleased by the Daubert ruling. In his dissent from the 7-2 decision, Chief Justice William Rehnquist, joined by liberal justice John Paul Stevens. argued that it put too much trust in the ability of judges to assess scientific methodology. Judges should not, the dissenters wrote, be
made into "amateur scientists."
Under the old regime, some courts simply pitted experts against each other, with the jury often picking the one that sounded more articulate, not the one with better data.
"There was a reluctance on the part of many courts over the years to come to grips with junk science," said New York City lawyer- Arvin Maskin, who specializes in defending companies against mass tort suits. "The issues on the scientific front were very, very complex."
Courts also were concerned about cutting into a plaintiff's right to have claims decided by a jury.
Now, "Judges are required to understand the testimony substantively whereas in the old days, the only focus was on qualifications." said Newark, N.J., lawyer Marc Klein.
"We have shifted our focus from who the person is to what he is saying, the source of what he is saying and the interpretation of the data," Klein said.
Are the methods used generally accepted? Has a study been published in a peer-reviewed journal? These are among the questions judges now have to consider.
Sometimes', the decision means that a case is dismissed for lack of evidence before it reaches a jury.
The Daubert case itself was thrown out after the Supreme Court sent it back to the appeals court. The case was brought on behalf of children who were allegedly harmed by their mother's use of the
prenatal drug Bendectin.
The plaintiffs pointed to animal studies, as well as similarities between the chemical structure of Bendectin and other drugs thought to cause birth defects. But the appeals court rejected that evidence, saying it was all created for the trial, had never been published in journals and did not indicate that the children in the case were likely harmed by the drug.
In the past year, companies involved in breast-implant suits have used the Daubert ruling. The women filing the suits claim that the implants caused a number of illnesses. while the companies say those claims are not backed by valid science.
A federal judge in San Antonio, Texas, agreed, throwing out a breast implant case entirely last March.
In April, according to Schoettinger, Dow Corning asked a federal trial court to drop thousands of claims against it arguing that there's no admissible evidence to back them.
A federal judge responsible for thousands of pending breast-implant cases against other firms has created a "National Science Panel" to examine the scientific dispute based on Daubert's standards. That panel heard testimony from scientists in Washington, D.C., last week, and will issue a report on its findings.
But Daubert isn't a factor only in big civil cases. It applies to criminal cases as well. It covers all kinds of scientific testimony, ranging from medical researchers to social scientists. It has turned up often:
- In April, a federal appeals court in Chicago said a district judge used bad statistics in a school desegregation case. The judge relied on a study that found white students outperforming black students in the Rockford, Ill. But the appeals court said the study didn't control for poverty rates, so it was inadmissible.
- In February, a federal judge in New Jersey threw out a secretary's claim against a computer keyboard manufacturer for carpal tunnel syndrome. The judge said the woman's expert witnesses couldn't tie her condition to keyboard use.
- In a '96 case based on a slip-and-fall accident in a hotel bathtub, a federal appeals court in Louisiana blocked the testimony of an architect as to how the accident had happened.
- Defendants across the country have relied on Daubert to challenge some sobriety tests in drunken claiming they aren't backed by evidence of their reliability. The argument succeeded in a '95 Tennessee case.
- A federal district judge in Florida threw out a suit against NEC Corp. The suit claimed that one of the company's cellular phones caused a brain tumor. The judge said the plaintiff's experts had cited no research to back their claim that the phones cause cancer.
Those who support tight scrutiny of scientific evidence say jurors often can't sort out the science on their own.
"A jury may incorrectly believe that an individual scientist ... represents a broad body of established scientific learning," argued Kenneth Foster and Peter Huber in their recent book, "Judging Science."
"If the individual scientist presents views that have not been derived, shared, or checked by other scientists, there is a subtle but serious problem of misrepresentation," they wrote.
Foster is a bioengineering professor at the University of Pennsylvania, and Huber is a fellow at the conservative Manhattan Institute.
The Supreme Court is due to clarify the implementation of Daubert in a pending case, Joiner vs. General Electric Co., which was argued Oct. 14.
The plaintiff in the case, electrician Robert Joiner, says he got lung cancer from a chemical in electrical transformers that he worked with.
The trial court said the studies he relied on were inadequate under Daubert, but the appeals court reversed. The Supreme Court is to decide how much deference an appeals court should give a trial judge's decision to throw out expert testimony.
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