The Volokh Conspiracy - WSJ Op-ed on State Courts and Daubert:

As noted previously, my op-ed on this topic appeared in the Wall Street Journal Saturday. Since there is no free link, I'm reprinting it below, with permission.

Rule of Law Quackspertise By David E. Bernstein 30 September 2006 The Wall Street Journal A9

A recent decision by a New York court is a stark reminder that, despite far-reaching reforms, junk science still plagues American courtrooms.

The case, Nonnon v. City of New York, involves a group of plaintiffs claiming that exposure to toxic substances in New York City's Pelham Bay landfill caused their cancers. They presented no study to the trial court showing that any substance found in the landfill causes their types of cancer; and the testimony of their expert witnesses was speculative and based on a single methodologically deficient study. When one of these experts was challenged, he "persisted in providing insufficient information about his methods and incomplete information about his analysis," wrote two judges of the intermediate-level appellate division. His conclusions were at odds with the conclusion of the city's expert, who used "explicit, detailed, generally accepted methods."

Should the trial judge have approved this dodgy testimony? The two judges quoted above said no, but were outvoted by three colleagues in June. New York has a rule for excluding unsound scientific evidence, but the majority troika refused to apply it — on the question-begging grounds that it would deprive plaintiffs "suffering the ill effects . . . of environmental contaminants" from obtaining compensation.

The outcome would likely have been different had the suit been brought in federal court. That's because cases based on the sorts of "quackspertise" that once led to multimillion dollar payouts for trial lawyers — claims that breast implants cause immune-system disease, power lines cause leukemia, vaccines cause autism, and the like — now routinely get dismissed before trial. The reason is a strict reliability test for expert testimony first announced by the U.S. Supreme Court in the 1993 case of Daubert v. Merrell Dow Pharmaceuticals. But Daubert's reliability test, codified in Federal Rule of Evidence 702, only governs federal trials.

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Plaintiffs with personal injury claims backed by dubious (or worse) expert testimony have thus become ever more determined to keep their lawsuits in state courts — where, naturally, plaintiff attorneys have fought every effort to adopt Daubert and Rule 702. The trial lawyers have inertia on their side; and Daubert's reception has been particularly unfriendly in some of the most populous and influential states. California, Florida, Illinois, New York, New Jersey and Pennsylvania, for example, have all refused to follow the federal lead.

The result is a hodgepodge. At one extreme, some states such as Wisconsin apply a qualifications-only test, meaning that any marginally qualified expert can testify to just about anything without meaningful judicial oversight. Most other non-Daubert states, including New York, apply the older "general acceptance" test (Frye v. U.S.), which requires that expert testimony be generally accepted in the relevant scientific community. Unfortunately, in most jurisdictions Frye is not a significant barrier to the admissibility of junk science.

In Nonnon, for example, the majority limited the application of the Frye rule by applying it only to "novel" forms of expertise. Courts in other states have held that Frye only applies to "scientific" expertise, and then define such expertise extremely narrowly.

The Kansas Supreme Court (Kuhn v. Sandoz Pharmaceuticals Corp.) even held that a physician's testimony — claiming that ingestion of the drug Parlodel caused a woman's death — was exempt from Frye because it was not based on scientific evidence but was instead his "pure opinion." This peculiar outcome seems to suggest that the less objective the basis for an expert's scientific opinion, the less judicial scrutiny it should receive!

Even when courts do apply Frye, experts can usually evade the rule by claiming reliance on a "generally accepted" scientific methodology (such as high-dose animal studies to find suspected carcinogens) and then using it in a generally unaccepted way (extrapolating from the results of such a study to proving cancer causation in a human exposed to a much lower dose). In contrast, under Rule 702, federal judges are required to ensure that the expert "has applied the principles and methods reliably to the facts of the case."

A corporate defendant wanting to flee to a federal court has limited options. Generally it can "remove" a tort case filed in state court only if no defendants named in the lawsuit reside in the same state as the plaintiff. A plaintiff's attorney can defeat the federal court's "diversity jurisdiction" simply by adding an in-state party to his list of defendants. That's easy: For example, a plaintiff alleging that Vioxx caused his heart attack can just sue the prescribing physician or even the dispensing pharmacy, in addition to Merck.

Congress could ameliorate the situation by liberalizing the requirements for federal court diversity jurisdiction — and last year's Class Action Fairness Act was a tentative step in that direction. CAFA gives federal courts jurisdiction over class actions claiming more than $5 million in damages, unless all plaintiffs and defendants are from the same state.

Meanwhile, the situation in the states is not entirely bleak. Some legislatures are taking matters into their own hands: Georgia, Mississippi and Michigan have adopted Rule 702 by statute. And next year several states, including Florida and Virginia, are expected to consider a bill drafted by the American Legislative Exchange Council incorporating Rule 702 and Daubert. But the primary responsibility for maintaining the integrity of the civil justice system lies with state judges.

State courts need not precisely adopt the Rule 702/Daubert standard; once the highest level New York Court of Appeals reviews Nonnon v. City of New York, for example, it could endorse opinions, like those of the appellate division's dissenters, who have applied a rigorous version of the Frye test to personal injury claims. State judges have the tools to ban junk science and quackspertise. It's time for them to follow the federal lead and start using them.

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Mr. Bernstein teaches at George Mason University School of Law and is the co-author of "The New Wigmore: Expert Evidence" (Aspen, 2003).

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	[David Bernstein, October 3, 2006 at 8:08am] Trackbacks WSJ Op-ed on State Courts and Daubert: As noted previously, my op-ed on this topic appeared in the Wall Street Journal Saturday. Since there is no free link, I'm reprinting it below, with permission. Rule of Law Quackspertise By David E. Bernstein 30 September 2006 The Wall Street Journal A9 A recent decision by a New York court is a stark reminder that, despite far-reaching reforms, junk science still plagues American courtrooms. The case, Nonnon v. City of New York, involves a group of plaintiffs claiming that exposure to toxic substances in New York City's Pelham Bay landfill caused their cancers. They presented no study to the trial court showing that any substance found in the landfill causes their types of cancer; and the testimony of their expert witnesses was speculative and based on a single methodologically deficient study. When one of these experts was challenged, he "persisted in providing insufficient information about his methods and incomplete information about his analysis," wrote two judges of the intermediate-level appellate division. His conclusions were at odds with the conclusion of the city's expert, who used "explicit, detailed, generally accepted methods." Should the trial judge have approved this dodgy testimony? The two judges quoted above said no, but were outvoted by three colleagues in June. New York has a rule for excluding unsound scientific evidence, but the majority troika refused to apply it — on the question-begging grounds that it would deprive plaintiffs "suffering the ill effects . . . of environmental contaminants" from obtaining compensation. The outcome would likely have been different had the suit been brought in federal court. That's because cases based on the sorts of "quackspertise" that once led to multimillion dollar payouts for trial lawyers — claims that breast implants cause immune-system disease, power lines cause leukemia, vaccines cause autism, and the like — now routinely get dismissed before trial. The reason is a strict reliability test for expert testimony first announced by the U.S. Supreme Court in the 1993 case of Daubert v. Merrell Dow Pharmaceuticals. But Daubert's reliability test, codified in Federal Rule of Evidence 702, only governs federal trials. [click to continue reading] (show) Plaintiffs with personal injury claims backed by dubious (or worse) expert testimony have thus become ever more determined to keep their lawsuits in state courts — where, naturally, plaintiff attorneys have fought every effort to adopt Daubert and Rule 702. The trial lawyers have inertia on their side; and Daubert's reception has been particularly unfriendly in some of the most populous and influential states. California, Florida, Illinois, New York, New Jersey and Pennsylvania, for example, have all refused to follow the federal lead. The result is a hodgepodge. At one extreme, some states such as Wisconsin apply a qualifications-only test, meaning that any marginally qualified expert can testify to just about anything without meaningful judicial oversight. Most other non-Daubert states, including New York, apply the older "general acceptance" test (Frye v. U.S.), which requires that expert testimony be generally accepted in the relevant scientific community. Unfortunately, in most jurisdictions Frye is not a significant barrier to the admissibility of junk science. In Nonnon, for example, the majority limited the application of the Frye rule by applying it only to "novel" forms of expertise. Courts in other states have held that Frye only applies to "scientific" expertise, and then define such expertise extremely narrowly. The Kansas Supreme Court (Kuhn v. Sandoz Pharmaceuticals Corp.) even held that a physician's testimony — claiming that ingestion of the drug Parlodel caused a woman's death — was exempt from Frye because it was not based on scientific evidence but was instead his "pure opinion." This peculiar outcome seems to suggest that the less objective the basis for an expert's scientific opinion, the less judicial scrutiny it should receive! Even when courts do apply Frye, experts can usually evade the rule by claiming reliance on a "generally accepted" scientific methodology (such as high-dose animal studies to find suspected carcinogens) and then using it in a generally unaccepted way (extrapolating from the results of such a study to proving cancer causation in a human exposed to a much lower dose). In contrast, under Rule 702, federal judges are required to ensure that the expert "has applied the principles and methods reliably to the facts of the case." A corporate defendant wanting to flee to a federal court has limited options. Generally it can "remove" a tort case filed in state court only if no defendants named in the lawsuit reside in the same state as the plaintiff. A plaintiff's attorney can defeat the federal court's "diversity jurisdiction" simply by adding an in-state party to his list of defendants. That's easy: For example, a plaintiff alleging that Vioxx caused his heart attack can just sue the prescribing physician or even the dispensing pharmacy, in addition to Merck. Congress could ameliorate the situation by liberalizing the requirements for federal court diversity jurisdiction — and last year's Class Action Fairness Act was a tentative step in that direction. CAFA gives federal courts jurisdiction over class actions claiming more than $5 million in damages, unless all plaintiffs and defendants are from the same state. Meanwhile, the situation in the states is not entirely bleak. Some legislatures are taking matters into their own hands: Georgia, Mississippi and Michigan have adopted Rule 702 by statute. And next year several states, including Florida and Virginia, are expected to consider a bill drafted by the American Legislative Exchange Council incorporating Rule 702 and Daubert. But the primary responsibility for maintaining the integrity of the civil justice system lies with state judges. State courts need not precisely adopt the Rule 702/Daubert standard; once the highest level New York Court of Appeals reviews Nonnon v. City of New York, for example, it could endorse opinions, like those of the appellate division's dissenters, who have applied a rigorous version of the Frye test to personal injury claims. State judges have the tools to ban junk science and quackspertise. It's time for them to follow the federal lead and start using them. --- Mr. Bernstein teaches at George Mason University School of Law and is the co-author of "The New Wigmore: Expert Evidence" (Aspen, 2003). Reprinted with permission of The Wall Street Journal (c) 2006 Dow Jones & Company. All rights reserved. (hide)