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3
The Legal Landscape
Post-Daubert
These three Supreme Court decisions have led to increasing attention
on the part of judges to scientific and technical issues (Berger, 2000).
For instance, the Federal Judicial Center has published two editions
of the Reference Manual on Scientific Evidence that contain a number of
chapters on topics such as epidemiology, toxicology, and statistics
that are highly relevant to determining causation in toxic tort cases.
In addition, numerous training programs have been held for judges
and lawyers on issues relating to scientific proof. Despite this
educational effort, difficult issues remain. The Daubert criteria are
too general to resolve many of the difficult problems facing the
courts when complex scientific evidence is presented to prove
causation. The factors discussed by the Supreme Court do not
necessarily help the courts evaluate the consistency of expert
judgment, determine when it is reasonable to extrapolate from other
studies, determine whether the methodology used in one study is
comparable to that used in another, or assess how conflicting
standards and methodologies across varying areas of science should
be considered. Nor does the Court provide guidance when scientific
evidence is suggestive about where to draw the line between
reasonable inference (which is permitted) and speculation (which is
not permitted). Moreover, there are some areas of science that are so
new and so complex that deciding what evidence is admissible and
what testimony should be heard remains a formidable challenge.
There is some evidence that application of the Daubert
standards has in fact restricted the presentation of expert evidence,
7
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DISCUSSIONS OF THE COMMITTEE ON DAUBERT STANDARDS
as indicated by increased exclusions of expert testimony in federal
courts (Dixon and Gill, 2001). A 2001 study by the Rand Institute
for Civil Justice found that judges are acting as gatekeepers for
reliability and relevance; they are examining the methods and
reasoning underlying the evidence; and they appear to be using
general acceptance as only one of many factors that can enter into a
reliability assessment. A 1998 survey of judges found that a third
claimed to admit expert evidence less often than they did before
Daubert and well over half of the attorneys surveyed reported the
same trend in judges' rulings (Krafka et al., 2002).
Many view this as demonstrating improvement in the
quality of scientific evidence presented in the courtroom. They see
the data as showing that the courts are complying with the obliga-
tion established by Daubert and its progeny to act as gatekeepers to
ensure the integrity of scientific evidence. Some claim that judges
have continued to admit scientific evidence that properly should
have been excluded. But others have argued that the application of
these standards has been inconsistent with accepted scientific
practice in certain cases, and that judges have been too aggressive
in excluding evidence. For example, some judges tend to assess
scientific testimony by examining each item of supporting evidence
in isolation rather than examining the cumulative weight of the
evidence in the manner in which the scientific community reaches
a consensus of opinion. Moreover, many judges have expressed a
preference for some forms of scientific evidence over other types
(e.g., epidemiology may be preferred over toxicology in toxic tort
cases) without an assessment of the relative strength or statistical
power of the study designs. Judges also may be hesitant to general-
ize from specific research findings to conclusions, following the
warning of Chief Justice Rehnquist to beware of testimony that is
based on "too great an analytical gap between the data and the
opinion proffered" (General Electric v. Joiner, 1997).
The diversity of views within science on the nature of
8
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The Legal Landscape Post-Daubert
causation1 and the methodology needed to make claims about
causation has complicated the efforts of the courts to identify
credible views that should be presented to a jury. Judges have
sometimes excluded testimony that some within the scientific
community might consider relevant, reliable, yet still somewhat
uncertain, and at times have allowed testimony that scientists might
view as unreliable or irrelevant. The role of uncertainty in the
culture of science is a particularly complex question, not always
easily grasped in the legal arena.
Judges often must review testimony from several different
scientific disciplines. In toxic tort cases, for example, the evidence
pertaining to causation could involve laboratory studies from
toxicology and molecular biology, clinical studies (including
randomized trials), observation, epidemiological studies of various
designs, and case studies. Depending on the state of the science,
some or no information might be available from each of these
disciplinary areas. Compounding this complexity is another issue:
for any given case, there may be published reviews of these same
scientific studies, providing the court with analysis and synthesis of
the evidence, and often an assessment of the likelihood of causa-
tion. There are, then, two major categories of scientific evidence
available to the courts: individual analytic studies and summary
syntheses of bodies of evidence; both categories may be peer-
reviewed but they involve quite different methodologies.
Several concerns have been raised about the courts han-
dling of scientific evidence and expertise, in particular:
· Whether decisions are being made consistently.
· Whether there is sufficient recognition of minority views
in science.
1
For a discussion of these different viewpoints, see M. Parascandola and D.L. Weed.
Causation in epidemiology. Journal of Epidemiology and Community Health 55:905-912,
2001.
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DISCUSSIONS OF THE COMMITTEE ON DAUBERT STANDARDS
· Whether courts appreciate differences among the
sciences in collecting, validating, and synthesizing
evidence.
· Whether courts appreciate that much of the available
research relates to populations rather than to individuals
and that complex questions may arise in extrapolating
data to a particular person.
· Whether the Supreme Court's comprehension of the
concept of validity corresponds with the scientific
community's understanding of the term.
· Whether forensic evidence in criminal cases is receiving
an appropriate level of scrutiny;
· Whether judges, by excluding too much evidence, are
intruding on the constitutional role of the jury to resolve
disputed facts.
10
Representative terms from entire chapter:
toxic tort
