Scientists And Lawyers: Projects Aim To Bridge Gap Between The Traditionally Contentious Professions

Between The Traditionally Contentious Professions Author: FRANKLIN HOKE, pp.1 Date: June 27,1994 Cooperative efforts seek to develop bases for agreement and a vocabulary to be shared by two influential cultures Editor's Note: This second part of a two-part series looks at several ongoing efforts aimed at establishing better communication between the scientific and legal professions. With court cases increasingly relying on sophisticated scientific evidence, the importance of such cooperative efforts is growing. The first part of this series, which appeared in the June 13 issue, explored some of the questions concerning the admissibility of scientific evidence raised in a landmark liability case heard by the Supreme Court last year. The cultures of science and law both seek their own versions of truth. But their purposes differ in important ways, as do their methods. Partly as a result, interactions between the two historically have been fraught with misunderstandings and, at times, mutual suspicion. Today, however, a number of projects are under way to bring the scientific and legal professions into greater alignment. These projects seek to increase the insight members of both groups have into the processes of the other and to develop something like a shared vocabulary of ideas. For example, a reference manual to help judges manage scientific evidence is being developed at the Federal Judicial Center in Washington, D.C., a research, education, and planning arm of the federal judiciary, with help from the Carnegie Corporation. Also, the National Conference of Lawyers and Scientists, a group sponsored by the American Association for the Advancement of Science (AAAS) and the American Bar Association (ABA), is working to identify mechanisms whereby the scientific community can identify potential candidates to serve as court-appointed scientific experts or so-called special masters, individuals designated by a judge to help assess the validity of scientific evidence. The tasks are complex ones that attempt to bring closer the differing goals of these two groups, both of which are socially powerful. "Although both scientists and the courts say they are looking for truth, what they mean by that is very, very different," says Dan L. Burk, a molecular biologist and a visiting assistant professor of law at George Mason University in Arlington, Va. "When a scientist says that she's looking for the truth or she's looking for an understanding of how the universe works, she's working inside a very definite kind of empirical and social framework. When the law says they're after truth, they're after something completely different, which is that they're trying to help people live together in society. They're trying to resolve conflicts. The debate over the role of science in the courts, although lately active, is not entirely new. Beginning in the 1960s, different groups have suggested the formation of court-like institutions to settle disputes that revolve around scientific evidence. Sometimes these are suggested as adjunct to the court system but with scientists as both advocates and adjudicators; sometimes the recommendation is that they be part of the scientific community with an advisory role to the courts. These ideas have been discussed seriously at times, but have never emerged as likely alternatives either to peer review within science or to the judicial process. "There have been proposals for special science courts from time to time," says Richard A. Meserve, a lawyer with the Washington, D.C.-based firm of Covington and Burling. "But that's never gone very far, nor is it likely to." "The problem," says Dan L. Burk, a molecular biologist and a visiting assistant professor of law at George Mason University in Arlington, Va., "is that it's extremely difficult to untangle the fact-finding function from the legal questions. You end up having scientists making legal determinations, which I don't think the scientists want to be doing. And there are also potential legal and even constitutional problems with having that happen." "You seldom would see a scientific issue in isolation from everything in a case," Meserve says. "To try to isolate some component of a case [for decision] does not reflect the way decisions are made." Some observers have suggested that a group like the National Research Council could attempt to clarify the relevant science in contentious areas such as forensic DNA analysis. "That would be like an informal science court," says Burk. "It wouldn't actually be an arm of the courts; it would just be a scientific society or scientific body offering helpful suggestions in a report of some kind. The problem with that is that you get a snapshot of science at that time. Things change even within six months, especially in these very frontier-science kinds of questions." --F.H. "That may mean that the courts come to a decision that completely flies in the face of the scientific evidence," Burk adds. "The scientists have one particular worldview, and the lawyers really have a very different one. And each one is well adapted to what that community is trying to accomplish. But when you get on the interface between them, you're going to get some conflict of priorities." That conflict was clearly drawn in the landmark Supreme Court ruling in Daubert et al. v. Merrell Dow Pharmaceuticals, a product-liability case originally decided in Merrell Dow's favor in the U.S. District Court for the Southern District of California in 1989. In the Daubert case, two children, Jason Daubert and Eric Schuller, and their parents contended that Bendectin, a drug marketed by Merrell Dow (now Marion Merrell Dow Inc., Kansas City, Mo.) and taken by the mothers while pregnant to avert morning sickness, had caused the children's birth defects. The twin questions of what should qualify as minimally admissible scientific evidence and who should make that decision were at the heart of the case, scientists and lawyers say. In 1991, the U.S. Court of Appeals for the Ninth Circuit in San Francisco upheld the summary judgment in the case that the more stringent standards of the scientific community--in this case, reliance on peer- reviewed research--should outweigh other considerations in evaluating the admissibility of such evidence. But in the Supreme Court's June 28, 1993, decision, written by Justice Harry A. Blackmun, the Court allowed for more judicial latitude and called on judges to take a more active, "gatekeeping role" in screening scientific evidence. In determining the admissibility of such evidence, the Court said, judges should use only relevance and reliability as their guides, rather than rely on the peer-reviewed status of the work, for example, as some scientists had advised. The decision has led judges to a greater appreciation of the methods of science, scientists and legal scholars say, and, perhaps ironically, findings in cases since Daubert appear to conform at least as closely with scientific consensus views as before. "The courts are very conscious of their role now," says Richard A. Meserve, a lawyer with the Washington, D.C.-based firm of Covington and Burling. Meserve, who holds a Ph.D. in applied physics and once served as clerk to Justice Blackmun, is also cochairman of the National Conference of Lawyers and Scientists. "The Supreme Court has told judges that their obligation is to police scientific evidence. They're supposed to look at these matters closely, and they're doing it." "The Daubert opinion is saying to judges, `Don't let in junk science,'" says David Kaye, a professor at the Center for the Study of Law, Science, and Technology at Arizona State University, Tempe, and editor of Jurimetrics Journal, a science-and-law publication affiliated with ABA. "Be vigorous." The purpose of the reference manual under development at the Federal Judicial Center is to help judges more effectively assess scientific evidence and to do so as early in the legal process as possible, according to project director Joseph A. Cecil. "It is intended to advise on the management of expert testimony and the use of extraordinary procedures--like use of court-appointed experts and special masters--in cases that pose difficult science problems," Cecil says. The manual, scheduled to be published in November 1995, will contain a series of "reference guides," or overview papers, in areas of science that have proved troublesome to the courts, according to Cecil. Information provided about such areas as epidemiology and toxicology will enable a judge to engage in a meaningful conversation with the attorneys and experts for each side about the basis of the expert opinions. Other areas to be covered in the manual are forensic analysis of DNA, survey research, inferential statistics, and multiple-regression analyses. "The guides are written not to tell judges what evidence is admissible," Cecil says, "but to explain to judges how [scientists in] these disciplines go about determining their findings. For example, in the epidemiology paper, there's an explanation of case-control research designs and cohort research designs, so that when judges hear these terms, they'll understand exactly what kind of research design was used. In the toxicology paper, there's a discussion about in vitro and in vivo studies, and the issues that arise among toxicologists when discussing extrapolation of findings of animal research to humans." Advice on what role peer review should play in deciding the admissibility of scientific evidence will be part of the handbook, too, according to Steven G. Gallagher, a senior staff associate of 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. The importance of peer review is not simply a matter of asking whether or not a study has been peer reviewed, he says. A more subtle approach to the question is needed. "For example, how long has it been between the study or the other background work and its presentation to the court?" Gallagher says. "If the study was just done last year, there may not have been time for peer review. If the study was done 20 years ago and there's no peer review, then you might need to ask more questions." Also, scientific journals differ in their level of scholarly credibility, Gallagher says. "There are allegations that some people have set up journals just to publish and validate their studies," Gallagher says. According to Burk, publications in the area of clinical ecology might fit this description. "Most members of the scientific community view clinical ecologists with a great deal of suspicion," Burk says. "These are people saying the immune system [can be] irreparably damaged by almost undetectable amounts of formaldehyde coming off the carpets and drapes." The manual will strongly urge judges to make their assessments of scientific evidence at the pretrial stages of a case, according to Gallagher, a goal also emphasized by the Supreme Court in Daubert. "Why go through three or four years of discovery, empanel a jury, start the expert testimony, and then have the testimony ruled inadmissible?" Gallagher asks. "If the testimony is going to be inadmissible, why not find that out earlier and save everybody heartache? If it is inadmissible, that then gives the plaintiff the opportunity to go back and try to find better evidence." "The science community has long been critical of the kind of testimony that is presented in court," says Cecil. "And one of the consequences of the Daubert case is that federal judges, at least, are instructed to look into the scientific validity of the information. So, this manual will, to an extent, address what has been a long-standing complaint among scientists about the way information that they have developed is being used in a public-policy arena." Margaret A. Berger, associate dean and a professor at the Brooklyn School of Law in New York, is playing a central role in preparing materials for the Federal Judicial Center manual. Berger was also the primary author of the Carnegie Commission report. Berger says that judges are reluctant to use court-appointed nonpartisan experts, despite existing powers that allow them to do so, even in cases with complex scientific or technical issues. Among the concerns of judges, Berger says, are ensuring neutrality of the expert and maintaining judicial independence, especially in areas in which their own expertise is likely to be limited. The judicial reference manual, she says, should encourage judges and give them guidance in how to use such court-appointed experts for help in understanding the methodology used by a given scientific expert, whether proffered by the plaintiff or the defendant, rather than for findings of fact. "A court might be more willing to use an expert," Berger says, "if the expert were called upon to advise the court more on [questions such as]: How do you set up an epidemiological study correctly? Were the number of subjects adequate to reach the conclusions that were reached? Were confounding factors taken into account?" Finding ways for judges to make better use of nonpartisan experts is also one of the aims of the National Conference of Lawyers and Scientists. The conference organized a November 1993 meeting of judges, attorneys, scientists, and others in Washington, D.C., to discuss establishing a demonstration project in which the professional scientific and engineering societies would create mechanisms to identify appropriate experts that judges could call on for help. "The attitude of the judges was that this was something that they would only apply rarely," says Meserve. "It would be an extraordinary case in which they would be prepared to consider calling their own experts, chiefly because judges are accustomed to the adversarial system and want to have each party have the responsibility to present its case. But, then, they were prepared to believe that, in extraordinary cases, it might well be useful and were very interested in seeing how their ability to identify experts could be improved." "Several of the judges said they would like their courts to be included in the demonstration project," says Deborah Runkle, associate staff officer for the conference and a senior program associate at AAAS. "We're going to try to have coordinating mechanisms that the federal judges can use when they would like to use a court-appointed expert in any of a number of capacities. We will work with, probably, the scientific and technical societies, but will not be limited to that. We might work with universities, for example, to help get experts in a timely fashion." Some attendees at the conference say that judges' concerns over the impartiality of court-appointed experts are only one set of difficulties to be overcome. "The judges were more interested than the attorneys [in introducing such experts]," says one meeting participant, speaking on condition of anonymity. "Attorneys who actually try cases are a little bit more wary, particularly--but not exclusively--the plaintiffs' [attorneys]. They don't see this working to their advantage." One reason for this is that it is often the plaintiff's side that introduces novel scientific ideas of injury or disease causation by, for example, pesticides or electromagnetic fields. "It is more often seen as being in the [defense's] interests to go with consensus or established science," this source says. "Also, who is neutral? Where do these scientists get their money? Who pays them? Where do they get their grants? Often the scientists who know the most about a particular thing work for industry. Who knows more about pesticides than the people who make them?" If the process of selecting nonpartisan experts can be done in such a way that the concerns of judges and the attorneys who try cases can be answered, some observers see expanding roles for scientists in the courtroom. "There may be more call on the scientific community, not to render ultimate opinions in the case about the issue that's being disputed, but rather to serve as experts who would advise the court about whether the opinions were reached in accordance with the scientific method," Berger says. "So, there might really be more of a role for scientists."

Scientists And Lawyers: Projects Aim To Bridge Gap Between The Traditionally Contentious Professions

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