And Who Decides? Author: FRANKLIN HOKE, pp.1
Date: June 13,1994
|Some scientists say a Supreme Court decision to deemphasize peer review has led to better court science|
A landmark Supreme Court decision concerning the use of scientific evidence in legal proceedings--although handed down a year ago--is still a subject of vigorous debate among scientists and legal scholars. Observers say that one clear effect of the drug-liability case, Daubert et al. v. Merrell Dow Pharmaceuticals Inc., has been to spur a crucial dialogue between the institutions of science and law, contributing to a number of cooperative initiatives now under way in several settings.
Also, they say, judges in subsequent cases are expressing a new appreciation for the values and methods of science.
The appeals court's opinion served as one of the primary considerations in deciding admissibility of scientific evidence until the Daubert case.
The relevant portion of the Frye opinion, lawyers say, is a mere two sentences: "Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone, the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs."
In subsequent cases, the decision, which became known as the Frye test or the "general acceptance" rule, was interpreted by many--including the lower courts in Daubert--as a requirement for peer review of scientific evidence admitted into court.
In 1975, Congress enacted the Federal Rules of Evidence, Rule 702 of which governs expert testimony. It states: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."
Conflicts between the Frye test and the Federal Rules constituted one of the main legal difficulties in Daubert. In deciding Daubert, the Supreme Court found that the Federal Rules of Evidence, and not the Frye test, provide the standard for admitting scientific testimony.
"The rules--especially Rule 702--place appropriate limits on the admissibility of purportedly scientific evidence by assigning to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand," Justice Blackmun wrote.
"Faced with a proffer of expert scientific testimony ... the trial judge ... must make a preliminary assessment of whether the testimony's underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue," Blackmun wrote.
Blackmun recognized that asking judges to make such pretrial assessments of science entails costs.
"That even limited screening by the trial judge, on occasion, will prevent the jury from hearing of authentic scientific breakthroughs," Blackmun added, "is simply the consequence of the fact that the Rules are not designed to seek cosmic understanding but, rather, to resolve legal disputes."
"It's a question of institutional judgment," says David Kaye, a professor at the Center for the Study of Law, Science, and Technology at Arizona State University in Tempe, and editor of Jurimetrics Journal, a science-and-law publication affiliated with the American Bar Association (ABA). "Who's competent to decide what minimally acceptable science is?"
Daubert exposed important tensions at the intersection of science and law, two powerful voices of authority in society. The case drew extraordinary attention from scientists, a number of whom were among the 22 parties who filed friend-of-the-court briefs on both sides. Scientists saw in the case a rare opportunity to weigh in directly, through the briefs, on the way their profession is represented in the courts.
In the Daubert case, two children, Jason Daubert and Eric Schuller, and their parents contended that Merrell Dow's anti-nausea drug Bendectin, taken by the mothers while pregnant, had caused the children's birth defects. Each side marshaled its experts to interpret research on the drug, but only the evidence put forth by Merrell Dow (now Marion Merrell Dow Inc., Kansas City, Mo.) was backed by peer review and publication. Noting, among other things, that the plaintiffs' scientific evidence was "unpublished," the United States Court of Appeals for the Ninth Circuit in San Francisco rejected their claim. The appeals court decision affirmed a U.S. District Court for the Southern District of California summary judgment for the drug maker, and prompted the plaintiffs to appeal to the Supreme Court.
In its June 28, 1993, decision, written by retiring Justice Harry A. Blackmun, the Supreme Court opted for the more "permissive" standard, remanding the case to the appeals court to be reargued. The Supreme Court also called on judges to play a more active, "gatekeeping role" in screening scientific evidence and, in doing so, for them to use only relevance and reliability as their guides (see story on page 5).
Among the joint projects in progress to help judges fulfill the new, more active role the Court's decision would have them take is a reference manual for judges under development at the Federal Judicial Center in Washington, D.C., a research, education, and planning arm of the federal judiciary. The manual is designed to help judges manage scientific evidence effectively. In another effort, the National Conference of Lawyers and Scientists, a group sponsored by the American Association for the Advancement of Science and ABA, is exploring ways that judges could better use court-appointed scientific experts and individuals called special masters, who are designated by a judge to help assess evidence.
For the courts and society generally, the need for reliable scientific evidence in deciding cases that will affect people's lives is perhaps self-evident. Also, the number of cases involving scientific evidence continues to grow each year, focusing more attention on this need. But why should scientists concern themselves with the question of what constitutes good science in the eyes of judges? Observers say that scientists, in fact, have a strong investment in how science is represented in the courts.
"Maybe scientists should just stick to the laboratories and forget how their work is used or abused," says Dorothy Nelkin, a professor of sociology and law at New York University in New York City. "But that [view] is kind of passe these days, because science is a public endeavor."
Scientists have a socially responsible role to play, others agree, and monitoring the uses of their work in the courts is one aspect of this.
"Scientists have to become better citizens," says Daryl Chubin, director of the research, evaluation, and dissemination division in the education and human resources directorate of the National Science Foundation. "They have to develop a larger sense of what they're all about and the various arenas that they're asked to play in. Being a research scientist doesn't exempt you from other kinds of responsibilities."
"And even for self-interested purposes, scientific funding depends on how the public sees science," says Nelkin. "The legal appropriation of scientific information is one of the ways in which science is visible."
"The fact that there has not been research into birth control for many years is due in large part to a fear of litigation, for example," says Steven G. Gallagher, a senior staff associate with the task force on science and technology in judicial and regulatory decision-making of the Carnegie Commission on Science, Technology, and Government, which produced the March 1993 report Science and Technology in Judicial Decision Making. "More and more science is industry-funded now, and if industry is looking over its shoulder at liability, that's driving their [research] decisions."
Scientists and lawyers have often viewed each other with suspicion, too, some say, a situation that exacerbates the questions surrounding the admissibility of scientific evidence in courts. Scientific expert witnesses are sometimes seen by lawyers and other scientists as mercenaries whose views are for hire.
"The involvement of scientists as experts is generally belittled, denigrated, or unpleasant," says Gilbert S. Omenn, dean and professor at the school of public health and community medicine at the University of Washington, Seattle. "There's a legacy which has to do with the clash of cultures and clash of jargon between scientists and lawyers."
Lawyers, Omenn says, are invested in the adversarial system of arguing legal cases, a system that tends to polarize the viewpoints of opposing parties.
"Scientists, although they engage in this sometimes, like more to build consensus and to try to find common positions," he says.
Partly as a result, lawyers are often seen by scientists as having no understanding of or regard for scientific findings.
"Many people in this society take a fairly dim view of law," says Chubin, a sociologist and science-policy analyst. Scientists do that at their peril. If anything, we have to engage with other kinds of specialists who are linked to very powerful professions."
Omenn says that scientists who serve as experts in court are involved in important work, despite its negative reputation. He also feels that if courts were to increase their use of scientists as nonpartisan advisers, more scientists would be willing to enter the courts.
"We just don't see it as a truly professional activity for which there could be training and preparation, and it shows," Omenn says. "But scientists, I think, would respond well to the court asking them to be a court-appointed expert." Assessing The Case Immediately after the Supreme Court's decision, some scientists worried publicly that Daubert, by not relying on the peer-review standard for science, opened the way for substandard scientific evidence to enter the courts. But how, in fact, has the relationship between science and the law fared in the year since the Daubert opinion was handed down? Perhaps surprisingly, the purportedly lower standards for evidence have had less impact than the directive to judges to be more active, according to some scientists and lawyers.
"This phrase that Blackmun used--the gatekeeper--has really empowered judges and made them feel very comfortable that they can exclude so-called junk science," says Dan L. Burk, a molecular biologist and a visiting assistant professor of law at George Mason University, Arlington, Va.
"All of the DNA identification-testing cases that have come up have passed through with flying colors," Burk says. "Judges are accepting DNA evidence, which has a strong scientific basis. Other kinds of things, including some claims of cancer caused by exposure to cathode ray tubes on computer monitors, are being thrown out. So, the practical effect of Daubert seems to be what the scientific community would want, even if the language of Daubert may not be everything that [some members of] the scientific community asked for."
Others agree that the impact of the case has been substantial, even in some cases not directly citing Daubert.
"Courts have become more aware of peer review as a phenomenon," says Arizona's David Kaye. "Many judges didn't have much sense of what scientists do and what creates prestige in the field."
For example, Kaye says, the number of opinions using the phrase "peer review" has jumped dramatically since Daubert. "Even though the Supreme Court said peer review wasn't an absolute requirement [for admissibility], Daubert raised the consciousness of courts about the role of peer-reviewed articles in the scientific community."
The fact that the court named peer review as only one factor for judges to consider when assessing scientific evidence is entirely appropriate, according to some observers.
NSF's Chubin coauthored Peerless Science (State University of New York Press, Albany, 1990), a book critical of the peer-review process, and also helped write a friend-of-the- court brief on behalf of the plaintiffs. Some scientists' efforts to defend peer review in their court briefs, he says, were little more than "tradition for tradition's sake."
"The significance of Daubert is that peer review is not going to carry the day," says Chubin. "Peer review can only take us so far."