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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."
'Junk Science' Ban Also Keeps
Jurors From Sound Evidence
By SHARON BEGLEY
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 Penn