Industry Finds New Angle To Beat Injury Suits: Dispute Science

by J.R. Pegg

Private interests have latched onto the ruling and are using it "to manipulate and abuse science," said Dr. David Michaels, a research professor of environmental and occupational health at George Washington University.

The result is that the jury trial process is being subverted and there are signs the influence of Daubert is impacting the regulatory arena, Michaels told reporters June 23 at a press briefing in Washington, D.C.

Michaels is co-chair of the Project on Scientific Knowledge and Public Policy, which is coordinated by the nonprofit research organization Tellus Institute. Today's briefing was part of an initiative Michaels is leading called DefendingScience.org, which seeks to inform scientists and policymakers about the application of scientific evidence in the legal system.

The Daubert case pitted the families of two children with minor birth defects against the manufacturer of the anti-nausea drug Bendectin, with the argument of admissible scientific evidence at the heart of the debate. In its ruling 7-2 ruling in favor of the manufacturer, the Supreme Court directed judges to act as "gatekeepers" in the courtroom and instructed them to admit only evidence that was "relevant and reliable."

In addition, the court suggested the following four criteria for determining whether science was credible and admissible: is the evidence base on a testable theory or technique; has the theory or technique been peer reviewed; does a particular technique have a known error rate and standards controlling the technique's operation; and is the underlying science generally acceptable?

The Supreme Court further stated that these criteria were not to be regarded as a "definitive checklist or test," thereby enabling judges to employ criteria of their own.

In the dissenting opinion on the case, Chief Justice William Rehnquist and Justice John Paul Stevens outlined concerns about turning judges in "amateur scientists" and that is what critics believe has come to pass.

There is almost always enough uncertainty and disagreement among scientists to argue both sides of an issue, Michaels said, and scientific methodologies and opinions can not be boiled down to a simple checklist that judges can evaluate.

The ruling may outline a process that appears "efficient and pragmatic" says Margaret Berger, a legal scholar and professor at the Brooklyn Law School, but this is seldom the case.

The Daubert ruling has allowed lawyers and judges to demand certainty from science that is not in line with what the law would require, Berger explained.

It is in particular troubling for toxic tort cases, Berger added, where a plaintiff relies on scientific experts to demonstrate causality. With so much unknown about the toxicity of the vast array of chemicals individuals can be exposed to, it is very rare for scientists to reach definitive conclusions.

Critics say the Daubert ruling allows defendants to try and exploit this uncertainty to toss out the scientific evidence and experts that are the foundation of many toxic tort cases.

This happened firsthand to Dr. Peter Infante, an epidemiologist and former director of the Office of Standards Review at the U.S. Department of Labor's Occupational Safety and Health Administration. Infante was to have testified in a court case involving a contractor at an Exxon Corporation oil refinery who was exposed to benzene and who then developed chronic myelogenous leukemia (CML).

As the author of a 1977 study that confirmed benzene as a cause of leukemia and a 1995 analysis that found a fourfold increase in the risk of developing CML from exposure to benzene, Infante seemed a qualified expert. But the judge in the case excluded Infante's testimony, relying upon a statistical significance standard that scientists could not prove because of the limited scope of studies of workers exposed to benzene.

"If you looked at the totality of the evidence, there were enough other facts to support the claim," Infante said. "This is an example of a judge making a scientific determination without the needed expertise."

Some may argue that judges are likely to be more qualified than juries to judge the merits of a scientific debate, but Stanley Feldman, former chief justice of the Arizona Supreme Court, believes that is not the issue.

Feldman explained that prior to the Daubert ruling, judges relied on two standards to decide if expert testimony was admissible: a standard of relevance and a 1923 ruling know as Frye, which held that the methods used by the expert in forming a scientific conclusion must be generally acceptable within the expert community.

Those rules provided judges with the ability to keep out unqualified testimony, but allowed juries to determine the merits and reliability of conflicting scientific views.

The Daubert ruling shifts this burden almost entirely to the judge who must now determine if a witness is qualified and if an expert's science is reliable, Feldman said, a shift that "violates the essential core of one's right to a jury trial."

"The jury was to decide what was reliable - this was always a jury function," Feldman said.

The underlying premise that the Daubert ruling was supposed to limit frivolous lawsuits, which were an evolving concern in the early 1990s, was misguided, Feldman added.

"Of course there are frivolous lawsuits," he said. "But the question should be are people winning frivolous lawsuits? And there is no data to support the position that people are winning frivolous lawsuits because of expert testimony."

There are further consequences of Daubert hearings, Berger said, that hit on "issues of fairness."

The costs of expert testimony are high to begin with, she said, and the effect of Daubert has been to raise these costs as more and more experts are needed. In particular, for toxic tort cases and product liability cases, the defendants often have deep pockets and a vested interest in keeping information out of a public trial.

A public trial forces a defendant to explain what actions they may or may not have taken to ensure the safety of a product, information that Berger says would be kept secret if a trial ends with a Daubert hearing.

"It provides an inducement to act like an ostrich," she said. "I do not know why we have to resolve this before we get to a jury."

Berger says analysis of the impact of Daubert shows a "dampening effect" on plaintiffs and experts, discouraging plaintiffs to sue and experts to testify.

"Daubert works effectively as another tool for terminating litigation without a trial or jury," Berger said.

And in a 1997 case, the Supreme Court ruled that appellate courts should not overturn the admissibility decision of a trail court unless the trial court abused its discretion, a ruling critics say makes it extremely difficult to reverse the ruling of a Daubert hearing.

So far some 20 states have adopted the Daubert ruling for use in state cases.

Although the Supreme Court has ruled that it should apply to all expert testimony and to criminal cases, it has not been widely used in criminal cases.

Most criminal defendants can not afford to use the ruling to challenge testimony, Berger explained, nor can they afford to bring in their own experts.

Critics of the Daubert ruling worry that its effect is seeping into the regulatory arena.

"Large corporate interests are trying to use Daubert to slow down the regulatory process," Michaels said, "as part of a concerted campaign to manufacture scientific uncertainty."

Michaels points to the Data Quality Act, which was passed in 2000 and provides interested parties with a formal administrative mechanism through the Office of Management and Budget to challenge the science used by federal regulatory agencies.

A corn and chemical lobbying group has petitioned the U.S. Environmental Protection Agency (EPA) under the Act challenging the agency's right to include peer reviewed studies documenting endocrine disruption effects in its risk assessment of the herbicide atrazine. The group argues that the EPA has not yet established testing protocols to characterize endocrine effects.

Michaels says this is "a Daubert-like challenge" to a federal rulemaking process, and adds that the U.S. Chamber of Commerce appears to want to open the door to more of these challenges. Last year, it floated a proposal that the Bush administration adopt an Executive Order requiring all federal agencies to apply the Daubert standards in the administrative rulemaking process.