This column from the WSJ, 6/27/03 leads to two thoughts.
First, the law somehow always gets twisted to favor business over people.
Second, I don't see how orthodox economists will be allowed to testify
in court if judges are competent.
Gene Coyle
SCIENCE JOURNAL
By SHARON BEGLEY
'Junk Science' Ban Also Keeps
Jurors From Sound Evidence
Ellen Relkin was sure that "junk science" played no part in her case.
Her client, Lisa Soldo, a healthy mother of a newborn, suffered a
massive intracranial hemorrhagic stroke at age 28, soon after starting
on a drug prescribed to suppress lactation, and was left severely brain
damaged. Ms. Relkin, at attorney with the Manhattan law firm Weitz &
Luxenberg, thought science showed that this tragedy was no coincidence.
At the very least, she figured a jury should hear the evidence.
None ever did. Thanks to a landmark Supreme Court decision handed down
10 years ago Saturday, science in the courtroom has undergone a radical
overhaul.
True, some very bad science has been kept out. Says Jerome Kassirer,
former editor of the New England Journal of Medicine, "It was pitiful
how people with few credentials, who made a career out of courtroom
testimony, were hired to be expert witnesses. That's much rarer now."
But legitimate scientific evidence has also become rarer. Judges are
dismissing testimony by physicians as anecdotal, setting standards for
scientific evidence higher than what doctors and researchers use, and
barring testimony when scientists in different disciplines disagree. In
some cases backed by legitimate science, science-and-law scholars told
me, judges have ruled that the evidence wasn't good enough, or
unambiguous enough, for a jury to hear, and so have dismissed the case
before trial.
Plaintiff attorneys deplore the situation, while corporate lawyers
generally applaud it. The surprise is how few saw it coming. In its 7-2
decision in Daubert v. Merrell Dow Pharmaceuticals Inc., the Supreme
Court ruled that, to be admissible, expert testimony must be based on a
testable theory or method that had passed peer review, had a known error
rate and standards, and reflected "generally acceptable" science. It
instructed judges to be gatekeepers, barring testimony that falls short.
At the time, the ruling was seen as a blow to business, as it "rejected
a strict standard" that kept "dubious scientific evidence" out of the
courts, reported this newspaper.
As a matter of law, Daubert applies to civil and criminal cases. But few
criminal defendants can afford a pretrial "Daubert challenge" to expert
testimony, says Margaret Berger of Brooklyn Law School. So faulty
science still finds its way into criminal cases. Example: Prosecutions
in some child sexual-abuse cases still rely on therapist interviews that
can be badgering and suggestive, which produce misinformation.
The real impact has been in civil cases involving claims of harm from a
pharmaceutical or other chemical. In these cases, some judges have ruled
that without epidemiological studies, plaintiffs cannot prove causation.
Others have ruled that doctors' testimony -- that a patient developed
heart trouble after taking a drug, got better after stopping it and
relapsed after going back on it -- doesn't pass Daubert muster.
That, says Dr. Kassirer, shows ignorance of how science works: "In
medicine, we make judgments about cause and effect based on all kinds of
evidence -- biological plausibility, physiology, animal studies and case
reports. There are many valid ways to assess causality; this kind of
information ought to go to a jury."
Several judges have thrown out cases in which epidemiology fails to find
a twofold increase in risk from the chemical at issue, even though
journals publish papers that take seriously risks below this arbitrary
cutoff. Others have found inadmissible models commonly used by
scientists to assess exposure.
Some judges see scientific disagreement as proof the science is
unreliable. That's what Ms. Relkin faced in her Parlodel case. In 1994,
with many young women on the drug having had heart attacks, strokes or
seizures, and under pressure from the FDA, Sandoz (now part of Novartis)
stopped selling Parlodel as a lactation suppressant.
Soon after receiving the case in 1998, a Pennsylvania judge empanelled
three independent experts to assess the reliability of the scientific
evidence on Parlodel. They split. The pharmacologist said the science
was sound; the neurologist and epidemiologist said it wasn't, though
both acknowledged that other qualified experts could disagree with that.
This year, the judge threw out the case, ruling that no jury should have
to evaluate the conflicting scientific testimony.
Many legal scholars say cases in which qualified experts disagree are
exactly the kind that should go to a jury. Steven Milloy, an adjunct
scholar at the libertarian Cato Institute, disagrees: "I think the
science should be very settled before it's allowed into evidence. Jurors
just aren't able to decide these questions."
What's undisputed is that, to the relief of business, "Daubert has
dramatically changed the way law is practiced," says Richard Meserve,
president of the Carnegie Institution of Washington and co-author of a
Daubert brief 10 years ago. "By imposing discipline on the introduction
of scientific evidence, it has been enormously beneficial."
In his Daubert dissent, Chief Justice William Rehnquist warned the new
guidelines would turn judges into "amateur scientists." With judges
ruling on whether scientific evidence is correct and credible (a role
the justice system normally assigns to juries), he gets points for
prescience.