Slashdot Mirror
10th Anniversary Of Supreme Court's Daubert Ruling
scraggly codger writes "Slashdot readers might find it interesting to learn about the ongoing legal controversy over the role of federal judges as gatekeepers for scientific evidence in civil and criminal litigation in the US. Ten years ago the Supreme Court provided guidelines for admissibility of scientific evidence in the Daubert ruling. Readers might find it hard to believe from the text of the ruling, but the result has been a huge increase in the power of judges to exclude scientific evidence from presentation to juries, based on what many scientists and other observers consider an incredibly naive (or perhaps merely self-serving) model of science. There's been a spate of news stories covering the topic, perhaps the most prominent in the WSJ of Friday, 27 June, "'Junk Science' Ban Also Keeps Jurors From Sound Evidence" (regrettably not freely available online). I particularly recommend Daubert: The Most Influential Supreme Court Ruling You've Never Heard Of."
Bowers v Hardwick was never 'overturned' the current decision states that sodomy laws that differentiate between hetrosexual sodomy and homosexual sodomy are invalid. Anti-sodomy laws are still valid as long as they aren't descriminitory.
And in our practice proceedings I have to make Daubert motions quite often. It really helps when you have a scientist/doctor (anyone who is going to give scientific/medical/technical testimony) and you know they don't know what they're talking about. It's really nothing more than a chance to examine their knowledge on certain subjects pertaining to what they're testifying on.
IAALS.
http://www.phuber.com/huber/js/js.htm
You may also find interesting materials on his web site:
http://www.phuber.com/
"Oh, the tragedy of math gone wrong. I can't even talk about it." -Wil Wheaton http://www.wilwheaton.net
OxyClean? Man that stuff really works. I have a baby and that takes baby shit out of his clothes better than anything else.
No, it doens't work as well as "seen on TV", but it does work.
SCIENCE JOURNAL
By SHARON BEGLEY
FROM THE ARCHIVES: June 27, 2003
'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 su
I use a similar product to clean my beer bottles. It is an oxidizing cleaning agent. It is not a good idea to have left over chlorine on/in your bottle when you are bottling beer. The stuff works pretty well.
The anonymous coward is incorrect. The opinions (majority, concurring, and dissenting) are online for anyone who wants to know what they really do say.
I just wanted to add one thing that you probably already knew..
"Judges are not scientific experts and cannot be expected to judge the scientific methods used except in the most trivial experiments or studies."
Judges, at least in the Appellate (I should know how to spell that after taking a class just last semester) level, have help understanding scientific and other issues that they are not knowledgeable of through amicus curiae briefs.
These are essentially research papers put together by interested parties that attempt to inform a judge about anything scientifically/psychologically/etc. complicated.
Of course, amicus briefs can be filed by neutral parties or groups in favor of either side, so judges must weigh what both sides offer. But, hopefully, they can get a good idea of whether x evidence or testimony should be allowed in.
Why do I always think I've not made any sense at the end of a post?
"I swear I won't break you if you let me take you where the willows never weep" -- Switchblade Symphony
There's been a spate of news stories covering the topic, perhaps the most prominent in the WSJ of Friday, 27 June, "'Junk Science' Ban Also Keeps Jurors From Sound Evidence" (regrettably not freely available online)
Our good friends at Corbis have scanned in this article for us! There is also a good article at Tech Centeral Station.
HIV Crosses Species Barrier... into Muppets
Actually, no. The court was very specific in Lawrence v Texas that "[t]he liberty protected by the Constitution allows homosexual couples the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons." That is reiterated over and over in the decision. To boil it down, they said that it hasn't been legal to restrict heterosexual people from doing it for a while ( since Griswold v Connecticut ), and that homosexual couples enjoyed the same protection (under the due process clause). What you stated would be consistent with O'Connor's concurring opinion, which was based on equal protection, but not with the majority opinion of the court, which argued (as noted above) based on due process.
For to end yet again.
For instance, some prosecutors, if allowed to spout pseudo science, would have juries believe that a decedents matching DNA at a crime scene is 100% irrefutable evidence that the defendant was at the crime scene, which is absolutely untrue. Bayes Theorem tells us that there is a good probability that the match is accurate, like maybe 99%, but nowhere near the one in 10,000 that many believe. On the other hand, non-matching DNA is plenty good to introduce reasonable doubt. Try to explain Bayes theorem to a jury and you might as well call a mistrial.
The same is true for fingerprinting which has been widely abused. If a complete finger print matches a suspects fingerprint that is pretty good evidence, even without a lot of corroborating evidence. However, the partial print most often lifted of crime scenes is not good enough to match to a suspect. There is conjecture and interpretation involved. When the prosecutor claims that match is perfect, this is abuse of science.
Some will say that only tort lawyers would be afraid of judges vetting evidence. if that were true, why has this ruling had so little effect on judgments. The reality is that individual lawsuits are incredible hard to win, even harder to collect on, and requires the company to have done something really stupid. Stupid things include ignoring 200 hundred years of science attesting to the negative effects of tobacco or engineering cars in such a way that safety margins are ignored. Juries also do not like company feeding on peoples negative self esteem to make a profit, as was shown in the breast implant case. I tell you know that persons who love breasts love breasts of all sizes, and if they require a breast of a certain size psychological help is in order. There is no small breast disease. The case was lost not based on science, which was nonexistent, but because the companies were greedy. It is interesting to note that those judgments. which have been critized as unfair an extreme, has had no apparent effect on the medical industry as they are now marketing contact lenses and prescription skin care to children.
"She's a scientist and a lesbian. She's not going to let it slide." Orphan Black
At any rate, the first point I want to make is that someone has to be the gatekeeper. In most matters, it is the judge. I also want to point out that scientific evidence is not the ONLY thing that judges keep out of court. There's a lot of other stuff, too, that kicked out for one reason or another.
The second point I want to make is that judges DO NOT work in a vacuum. They are not just novices off the street and working solely what they are given. In most larger municipalities, there are judges with some technical training or expertise. Further, they know how to do their own research, where to find literature, and it is all at their disposal. They do not want to go into the case ignorant and they are the ones who are routinely assigned these cases. The assignments are not random, by the way. And if it is taking place in the Patent Court, the level of technical expertise they have on hand is quite high. So don't assume that these decisions are being made by the equivalent of someone plucked from the street, because they're not.
And for those of you who like to beat the drum of tort vampires, and so on, consider this: Your attitude is quite prevalent throughout the population. Now, juries are drawn from the general population, right? So the majority of jurors feel the same way you do, and awards are not nearly as high as you might think. In fact, if you ever take a look at types of injuries and the average awards (there are publications and services that compile these things) you'll probably find them quite reasonable.
IAAL
I spent a lot of time explaining that the there is not much improvement between a 30% 1 year survival rate and a 15% 1 year survival rate. With numbers like that the person was likely to die, it was just a matter of how. (The law in our state says that for malpractice there has to be a mistake AND harm.)
Lawyers were out there trying to turn statistics into causal results, the experts were saying no way (to both sides). I must have spent the first hour of deliberation just explaining what the numbers meant, why different experts looking at the same results can get different answers, etc.
"Learning is not compulsory... neither is survival."
--Dr.W.Edwards Deming
I might want a lung cancer expert to come in on a brain tumor case.... some lung cancer's metatastasize and can migrate to the brain. Were I a smoker looking to establish that my brain tumor was probabilistically related to met's from cig induced lung cancer --- then it's germane.
and then yesterday Kraft announced that they are cutting portion sizes, fat and sugar from all their products, including Oreos.
so while a lawsuit might not be the correct way to go about seeking change (i agree with you on that), it did get him into the news, and shortly after there WAS a change. not saying it was good or bad (nor does correlation imply causality), but i do think it is interesting.
here is a link for you. or a google news search if you'd rather.
7d9e63e9501751ff4bf9307989d5623d *SheepHead
There are two reasons why Daubert is not as important as it might seem. First, it applies only to the Federal Rules of Evidence. So, if you're not in federal court, you get whatever evidentiary standard applies in your state. Some states have adopted the federal rules (and Daubert) and some have not. My guess is that the magnet jurisdictions for mass torts (like Mississippi state courts) haven't, but I don't know. Second, it still leaves judges with a lot of discretion. Under Joiner v. GE, a judge's evidentiary decisions are reversible only if the decision is an abuse of discretion. Essentially, the trial judge can do anything he/she wants on admitting scientific evidence, and it won't be overturned unless an appellate court thinks it's really crazy. And, federal judges tend to do pretty much what they want unless they're afraid of being reversed on appeal.
It's sad that good science is gettign trounced in this way.
/. day.
Daubert was written to keep crap out of the courtroom rather than to "trounce" what you characterize as "good science". I wrote an outline on Daubert for a CLE recently (in the context of direct examinations of expert witnesses) and the portion of that related to Daubert is reproduced below as an FYI.
Rather than bowing to fads, Daubert simply requires the following things:
The "Daubert Five" Requirements for Expert Testimony
Expert is qualified
Expert's opinion is supported by scientific reasoning, methodology
Expert's opinion is supported by reliable data
Expert's opinion "fits" the facts of the case, to assist the Jury in understanding evidence or resolving a factual dispute
Expert's opinion is clear, directional, and unbiased enough to qualify for inclusion under Federal Rule of Evidence 403.
The Daubert Standard also calls upon the trial court to scrutinize an Expert's reasoning and methodology to assure that "relevant or reliable" scientific evidence supports the admissibility of Expert testimony. The following non-inclusive factors are to be considered:
Daubert's Admissibility Test for Expert Testimony
Reliability: Whether a scientific theory or technique can be and has been tested;
Peer Review and Publication: Whether the scientific or technical theory or technique has been subjected to peer review and publication. Submission to peer review and publication is not dispositive, but is viewed by the Court as a component of "good science," as distinguished from "junk science."
Error Rate, Standards Controlling Technique's Operation: The known or potential rate of error and the existence and maintenance of standards controlling technique's operation.
Generally Acceptance Factors: Whether the scientific technique or methodology is generally accepted in the scientific community involved. [This is still a factor to be considered despite the abolition of "The Frye Test," of "general acceptance," but it is not dispositive.]
Fitness: Whether the Expert testimony or scientific evidence "fits" the facts of the case so as to "assist" the Jury's understanding of the evidence or to determine a fact in issue."
None of that sounds unreasonable, and in practice it usually works well. I really don't understand why there is all this bitching about the ruling. Perhaps it is simply a generalized ignorance of how the courts work. I honestly don't know.
The "fast food" cases have largely been thrown out. The "McDonalds coffee lady" was reduced to $300,000 on appeal (and the actual evidence in that case was pretty incriminating, plus the plaintiff offered to settle for $15,000 before trial -- McDonald's fucked themselves in that case in about twenty different ways).
Blah, blah, blah...I hate lawyers...blah, blah, blah. Typical
GF.
Lots of petrified grits
Much as I imagine Daubert HAS hurt good science in the courtroom, the website pointed to here does not readily disclose the fact that it is actually a front for the Tellus Institute, a non-profit consulting group specializing in pro-environmental litigation and political action.