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Science, Law, and the Search for Truth in the Courtroom: Lessons from Daubert v. Merrell Dow

Published online by Cambridge University Press:  01 January 2021

Joan E. Bertin  and
Mary S. Henifin
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Extract

On June 28, 1993, the United States Supreme Court ruled on the admissibility of expert scientific opinion and evidence in federal court cases. The importance of the case can be measured by the interest it stimulated. The scientific community turned out in particular force to register its views. At the heart of the controversy was a debate over the nature of scientific knowledge and its relation to law. More than any other Supreme Court case in recent memory, the amici seemed to view the Daubert case both as posing a potential challenge to basic scientific premises and as an opportunity to reclaim a lost prerogative to determine how science is applied in courts.

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Article
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Journal of Law, Medicine & Ethics , Volume 22 , Issue 1 , Spring 1994 , pp. 6 - 20
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Copyright © American Society of Law, Medicine and Ethics 1994

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References

Daubert et al. v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. ___, 125 L.Ed.2d 469 (1993). Joan E. Bertin was an author, with Berzon, Marsha S., Meyerhoff, Albert H., of the brief amicus curiae submitted by the American Society of Law, Medicine & Ethics et al., in support of the plaintiffs in Daubert in the Supreme Court.Google Scholar
In addition to the briefs presented by the parties, twenty-two different groups offered their views in amicus curiae briefs. The Pharmaceutical Manufacturers Association, the National Association of Manufacturers, the Chemical Manufacturers Association, the Chamber of Commerce of the United States of America, the Association of Trial Lawyers of America, and others expressed arguments reflecting their institutional interests in tort litigation of this sort. The United States Department of Justice and a group of law professors also filed briefs in the case.Google Scholar
Scientists, doctors, and their representatives and organizations were heavily represented. Approximately seventy doctors, scientists, medical journals, and medical and scientific organizations appeared as amici curiae, in eleven separate briefs. The American Association for the Advancement of Science, the National Academy of Science, The New England Journal of Medicine, The Journal of the American Medical Association, The Annals of Internal Medicine, the American Medical Association, and fifteen national medical specialty societies, the American College of Legal Medicine, and others filed briefs on behalf of the respondent, Merrell Dow. The Carnegie Commission on Science and Technology filed on neither side, but advocated reversal of the decision below. The American Society of Law, Medicine & Ethics and numerous individual scientists filed in favor of plaintiffs. In this article, we address the arguments presented in these briefs.Google Scholar
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In the medical community, Bendectin is widely thought to be safe, based on numerous poulation-based studies that failed to demonstrate risk. The plaintiffs in Daubert dispute that assumption, for reasons discussed infra. In this article, we express no view on the question of Bendectin's safety. Our observations are directed solely at the evidence in the record and how the legal system responds to such evidence.Google Scholar
See, for example, Wagner, Wendy, “Trans-Science in Courts,” Yale L.J., 96 (1986): 431, note 20. The parties' briefs understandably were driven by the effort to prevail in this particular case, not to address systemic problems with the use of science in courts. The amici likewise may have had similarly immediate objectives, which would explain the failure to focus on the larger issues exemplified by the case, although the absence of such a focus nonetheless is regrettable.Google Scholar
See Gold, Steve, “Causation in Toxic Torts: Burdens of Proof, Standards of Persuasion, and Statistical Evidence,” Yale L. J., 96 (1986): 376. Notwithstanding the difficulties inherent in tort litigation as a source of compensation and a way of deterring wrongful conduct, injured individuals will continue to seek legal redress, and the stakes in the outcome of personal injury cases will remain high, unless and until there is a uniform system of compensation or coverage for serious injuries. In the interim, however, there are approaches that would likely diminish the perception, often accurate, that litigation is a high-priced game of chance in which only the lawyers win.CrossRefGoogle Scholar
It may take a considerable period of time to “quantify the hazard,” especially if courts demand positive epidemiology to prove causation. Wagner, supra note 6, at 429 and notes 11–12. Although reliance on epidemiology to prove causation, to the exclusion of other types of proof, has been criticized, it is common. Gold, supra note 7, at 392. The Supreme Court in Daubert was invited to adopt such a restrictive approach, but declined to do so, leaving courts with the discretion to accept valid and relevant experimental evidence.Google Scholar
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A “no-fault” approach to recovery for personal injuries would also avoid the problem. Such an approach has much to recommend it, if it avoids the expensive litigation that now characterizes many tort actions. Limiting the amount of recovery in exchange for the assurance that all basic needs (income replacement, medical care, and so forth) will be met, would seem an appropriate trade-off. Unfortunately, the experience with the workers' compensation system, which was to effect a similar sort of trade-off, makes some suspicious that such a system would not dispose of victims' claims fairly.Google Scholar
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This rule is derived from Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), in which a prosecutor in a criminal case sought to introduce scientific testimony about a rudimentary type of lie detector test. Evidence used to obtain a conviction, of course, must be highly reliable, since potential loss of liberty is involved.Google Scholar
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Compare Lynch v. Merrell-National Laboratories, 830 F.2d 1190 (1st Cir. 1987) and Richardson v. Richardson-Merrell, 857 F.2d 823 (D.C. Cir. 1988), cert. denied, 493 U.S. 882 (1989) with Brock v. Merrell Dow Pharmaceuticals, 874 F.2d 307, modified, 884 F.2d 166 (5th Cir. 1989), cert. denied, 494 U.S. 1046 (1990). And see DeLuca v. Merrell Dow Pharmaceuticals, 911 F.2d 941 (3d Cir. 1990) (expert testimony admissible; sufficiency to be determined on remand); Turpin v. Merrell Dow Pharmaceuticals, 959 F.2d 1349 (6th Cir.), cert. denied, 113 S. Ct. 84 (1992) (evidence insufficient to establish causation); Wilson v. Merrell Dow Pharmaceuticals, 893 F.2d 1149 (10th Cir. 1990) (summary judgment inappropriate); In re Richardson-Merrell, Inc. “Bendectin” Products Liability Litigation, 857 F.2d 290 (6th Cir. 1988), cert. denied, 488 U.S. 1006 (1989) (jury verdict for defendant after full trial); In re Bendectin Products Liability Litigation, 732 F. Supp 744 (E.D. Mich 1990) (denying defendant's motion for summary judgment); and Oxendine v. Merrell Dow Pharmaceuticals, 506 A.2d 1100 (D.C. 1986) and 563 A.2d 330 (D.C. 1989), cert. denied 110 S. Ct. 1121 (1990) (jury verdict in the plaintiff's favor reinstated by appellate court). The Oxendine case, the only verdict for the plaintiff upheld on appeal, has had a tortured history, which is traced in Sanders, supra note 4. Defendants are currently seeking a new trial. Id. at 29.Google Scholar
509 U.S. at ___, 125 L.Ed.2d at 484.Google Scholar
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Some data and analyses created for litigation would not be appropriate for publication, nor would there be time to publish them prior to use in the legal proceeding for which they were undertaken. Examples include statistical analyses of employment patterns in employment discrimination cases or reviews of medical histories of all individuals exposed to a chemical spill in a personal injury case. The rule in the lower courts in Daubert was so broad that it would have barred all kinds of expert testimony.Google Scholar
For example, the Brief Amicus Curiae of Bloembergen, Nicolaas et al., In Support of Respondents in Daubert et al. v. Merrell Dow Pharmaceuticals, Inc. (U.S. No. 92–102) at 22, states:Google ScholarGoogle ScholarGoogle Scholar
509 U.S. at ___, 125 L.Ed.2d at 476. The claim that “junk science” has pervaded and corrupted the legal system is reflected in Huber, Peter, Galileo's Revenge: Junk Science in the Courtroom (New York: Basic Books, 1991). But see Chesebro, K., “Galileo's Retort: Peter Huber's Junk Scholarship,” Am. U. L. Rev., 42 (1993): 1637, for a refutation of Huber's thesis.Google Scholar
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This concern is real but should not be limited to legal proceedings. Many forces threaten scientific objectivity. For example, the source of a scientist's funding may influence the topics of research or the analysis of data; concerns about potential liability may influence both research and treatment; personal and professional investment in the validity of particular theories may blind scientists to flaws in their analyses, and so forth. Many academic scientists also hold positions in corporations or own their own consulting companies.Google Scholar
This consists of interrogatories (written questions answered under oath), document production, and depositions (questions, usually oral, under oath).Google Scholar
The amici stressed the need for scientific evidence to be valid and reliable. This is essentially what lawyers mean when they refer to credibility. Scientific evidence is only credible if it is valid and reliable.Google Scholar
One brief cited a case in which a jury refused to accept valid and conclusive scientific testimony that should have disposed of a particular claim. This example contradicts the premise that juries are unduly swayed by experts, but reinforces the dim view of a system in disarray. Brief Amicus Curiae of the American College of Legal Medicine In Support of Respondent in Daubert et al. v. Merrell Dow Pharmaceuticals, Inc. (U.S. No. 92–102), at 8, note 7.Google Scholar
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Brief Amici Curiae of Rothman, Professors Kenneth, Weiss, Noel, Robins, James, Neutra, Raymond, Stellman, Steven In Support of Petitioners in Daubert et al. v. Merrell Dow Pharmaceuticals, Inc. (U.S. No. 92–102).Google Scholar
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See, e.g., Cook, D. J. et al., “Should Unpublished Data Be Included in Meta-analyses? Current Convictions and Controversies,” JAMA, 269, no. 21 (1993): 2749–53; Mills, J.L., “Data Torturing,” N. Engl. J. Med., 329, no. 16 (1993): 1196–99. Most amici conceded that meta-analysis is not per se “unscientific,” but that its validity depends on how it is performed. Because there is no discussion of specific flaws or deficiencies in the methodology employed by the experts in this case, the disagreement often appeared to relate more to the results than to the methods by which they were obtained.CrossRefGoogle Scholar
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Indeed, litigation since the Daubert opinion was issued confirms this. See the discussion of In Re Joint Eastern and Southern District Asbestos Litigation, infra.Google Scholar
Accord Black, B., Singer, J.A., “From Frye to Daubert: A New Test for Scientific Evidence,” Shepard's Expert and Scientific Evidence Quarterly, 1 (1993): 40. The article also observes that the Supreme Court's disposition may “eliminate the extremes of hair trigger exclusion and mindless admission of evidence.”Google Scholar
For example, the judge can appoint experts, make credibility determinations, issue instructions to the jury, grant summary judgment or judgment notwithstanding the verdict, and so forth.Google Scholar
The adversary system creates additional disincentives to speedy resolution: Culpable defendants have nothing to lose and everything to gain from delay, parties with greater financial resources may use delay and expense to exert pressure on their opponents, lawyers profit by expending more hours, and lack of cooperation sometimes is employed in the war of nerves that too often accompanies litigation. These faults must be laid primarily at the feet of lawyers, although clients themselves often encourage or demand dilatory tactics.Google Scholar
Anyone can file an action by paying the filing fees and submitting the appropriate forms. Legal checks protect against frivolous claims and dilatory tactics. Sanctions can be imposed; inadequate complaints are subject to early dismissal; summary judgment is available to expedite cases that involve only legal, not factual, issues; motions in limine limit the triable issues; and so forth. See Fed. R. Civ. Pro., Rules 11, 12(b)(6), 56.Google Scholar
Especially if the calculation includes time expended to compile information for discovery, the savings could be substantial. Attorneys fees and costs of litigation often outstrip amounts paid in settlement.Google Scholar
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Questions raised during the course of litigation and congressional inquiries stimulated research into the effects of exposure to Agent Orange. Five such studies and an editorial were reported in a single issue of Environmental Research in 1988. See, e.g., Stellman, S.D., Stellman, J.M., Sommer, J.F., “Health and Reproductive Outcomes among American Legionnaires in Relation to Combat and Herbicide Exposures in Vietnam,” Envir. Res., 47 (1988): 150–74; and Gochfield, M., Editorial: “New Light on the Health of Vietnam Veterans,” Envir. Res., 47 (1988): 109-11.CrossRefGoogle Scholar
Liability is not generally imposed for injuries from socially useful, but unavoidably unsafe, products such as drugs, if reasonable care has been exercised and warnings have been provided. Restatement (Second) of Torts, § 402A comment k (1965).Google Scholar
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Id. at 1046. As this case indicates, extremely difficult proof problems arise when there is only a weak association between cause and effect, or when the event is uncommon. In such cases, it may be nearly impossible to demonstrate causation in an individual case, even though the effect may exist. For a review of the cases decided after the Supreme Court opinion in Daubert, see Black, B., “The Judicial Reaction to Daubert,” Shepard's Expert and Scientific Evidence Quarterly, 1 (1993): 319–35.Google Scholar
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