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]
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).
Reprinted with permission of The Wall Street Journal (c) 2006 Dow Jones & Company.
All rights reserved.
In science, reasonable sounding but largely untestable hypotheses are useless. In NY court, they are golden.
Just as long as those suffering people get their money, it doesn't matter from whom it comes.
For those who do not wish to read the full opinion:
1. The City provided two studies showing the landfill did not cause the cancer.
2. Dr. Richard Neugebauer, an epidemiologist, provided an affidavit FOR THE CITY saying the studies showed the landfill did not cause cancer.
3. Two scientific agencies found methodological problems with the two studies.
4. Dr. Richard Neugebauer, seeking to correct the methodological problems, performed his own study.
5. Based on those different result, Dr. Neugebauer became an expert for the PLAINTIFFS, disavowing his previous affidavit, and finding that the previous studies wer wrong, and that there WAS a cancer cluster.
The dissent sees no problem with the two reports that Dr. Neugebauer supported and then later disavowed as scientifically flawed. They challenge, however, Dr. Neugebauer's updated report as scientifically unsound.
Looks to me like a case of dueling experts, except that its the same expert on both sides. The majority concludes:
I see no problem with a jury seeing all three studies.
As a trial lawyer - I would rather the other side pick an expert - [and the less solid the basis for his/her conclusions the better] because a trial lawyer has more latitude and the witness is getting paid.
I have to confess that I am uttterly amazed that anyone is left still whining about expert testimony
Then why do trial lawyers like you routinely throw engineers and scientists out of jury pools? Sounds like you guys prefer people who are NOT trained to think critically about the problem.
That leads to lawyer scum like John Edwards channeling babies during arguments to sway emotional juries to award damages, and never mind the doctor did everything right.
Among the rationales are that, between lab animals and humans the relative metabolic rate differences, relative aging rates (~dog years versus human years for aging), relative surface area to mass or volume ratios, and other such scaling factors are used justify the practice.
Or maybe I have read your objection incorrectly. In any case, extrapolation of lab rat results to predict likelihood of human results is both a widespread practice and sufficiently complicated that truly qualified experts can differ on its applicability in any given situation.
I think Daubert is too liberal... always been more of a Frye guy.
They don't. In most states a chiropractor can testify about chiropractic, which is to say the neck and back, and the cheap treatments they provide. They can't speculate about surgery, can't address neurological issues except in the most cursory way, and anecdotes aside, most jurors are quite aware of where chiropractors are coming from.
My experience with the plaintiff's bar (from the opposite side of the bar in North Carolina) is that the better lawyers don't want chiropractic cases, certainly not to try, and the poorer lawyers don't expect much from these cases anyway.
Which is as it should be. A chiropractor can provide valuable treatment for minor injuries, and his testimony generally leads to minor compensation.
Just how many issues do you think are *not* "debated among scientists?"
Nick
No, no, no. The scientific studies in question are sufficient to show correlation, not causation. Correlation is a necessary (but not sufficient) condition to show causation. Dr. Neugebauer's first two studies were evidence against causation, because they did not show correlation. However, his last study was evidence of correlation, which neither proves nor rules out causation.
In other words, a innocent party could find itself liable for injuries caused by another party simply because it was proximate to the injuring party at the time of the injury.
I am not sure if I understand you. However, if you equate inadmissibility of evidence with denial of the right to a jury, then exclusion of expert witness testimony is single tree in the forest. Heresay evidence comes immediately to mind.
Remember, those Lexuses don't pay for themselves!
"Then why do trial lawyers like you routinely throw engineers and scientists out of jury pools?"
I'd like some of the lawyers here to comment on this. I live in a community with a high percentage of engineers and scientists, and I hear a lot of anecdotal evidence that this routinely happens (usually followed by a complaint about why bother to show up for jury duty). Does anyone wish to dispute this? I'm not snarking, I'm sincerly curious about whether this is true.
1. The relationship between the right to trial by jury and the exclusion of evidence seems obvious. The more evidence one excludes - the less the province of the jury. Granted, the Rules of Evidence have for centuries now wrestled with the question of how to balance competing interests involved in the admission of any evidence. However, my point is this - Daubert and its progeny are judge made law - invented whole cloth by judicial activists who argue that judges are more qualilfied to serve as gatekeepers than juries do as evaluaters of evidence (with not a shred of evidence to support that breathtaking assumption - other than sheer judicial hubris). Most chilling to me is the assumption that underlies this notion - which is that the jury system is flawed - that this precious right for which so many patriots have fought is fulfilled by too many emotion driven less intelligent people to be allowed to hear "expert" testimony. Onward glorious comrades.
2. It is my experience that no trial lawyer that actually talks to a potential panel would ever seek to make a strike decision based only on a job description. If I have a case where an engineer screwed up - but the nature of the screw up would be most obvious to another engineer - then I want an engineer on the panel. My rule is to try to pick jurors who are fair and willing to listen and who believe in America.
And proof of this plague is the one case discussed?
Asserting that one bad result amounts to a plague sounds like "junk science" to me.
I can't speak for all lawyers, but I have three reasons. First, engineers tend to think they are smarter than they really are and - if the case involves technical or scientific information - feel free to disregard the evidence and just try to reason out the case for themselves. (No offense intended, my undergraduate training was in engineering.)
To give one example: in a case where there was a dispute regarding the cause of an explosion and fire, an electrical engineer on the jury made it onto the jury. (The fact that we burned through our challenges before we could exclude him tells you how terrible the jury pool was.) We had our theory re what caused the fire and the other side had their theory. We both had multiple experts. The engineer came up with his own theory of what happened. He simply chose not to believe the opinion testimony that was presented to him. As it happened, his theory also led him to vote for a plaintiff's verdict. Defense experts submitted declarations post-verdict stating that the engineer's theory was impossible. It was impossible - we had considered proposing it as an alternate theory but decided not to do so because we thought it was so flawed that we would lose credibility.
Reason two: for some reason that baffles me engineers tend to resent lawyers - almost as much as doctor's do. And not lawyers in general, of course, but plaintiff's lawyers. So they often walk into the courtroom hating plaintiff's lawyers before they know a single thing about the case.
Reason three: serious cases seldom last less than 2 or 3 weeks. Despite the fact that they generally have a much higher income and greater resources than the population in general, engineers (and other professionals, too) believe that they cannot posibly miss 3 weeks of work (and burn that vacation time, if their employer doesn't have paid jury duty benefits [few do]) so if there were selected to serve on a jury they would really, really resent it and, odds are, that anger would be directed toward plaintiff, not defendant.
"I defer to no one in my confidence in federal judges; but I am at a loss to know what is meant when it is said that the scientific status of a theory depends on its "falsifiability," and I suspect some of them will be, too.
I [do not doubt that Rule 702 confides to the judge some gatekeeping responsibility] in deciding questions of the admissibility of proffered expert testimony. But I do not think it imposes on them either the obligation or the authority to become amateur scientists in order to perform that role..."
And, in fact, judges make pretty poor amateur scientists. One study in 2001 of 400 judges found that as few as 6% could demonstrate a command of the suggested Daubert criteria. (Asking the Gatekeepers: A National Survey of Judges on Judging Expert Evidence in a Post-Daubert World," Law and Human Behavior, Oct. 2001)
Further, legal analysts tend to ignore the *medical* effects of the disastrous Daubert decision. The Daubert decision, one must remember, had the effect of *allowing* bad psuedoscience into a trial that resulted in a bad decision that resulted in the removal of an important and useful medicine from the United States. Because of the Daubert decision, pregnant women suffered greater morbidity, increased hospital stays, and increased complications of pregnancy. This result has been documented in multiple studies contrasting the care of pregnant women in the US and other countries. More recently the drug has been re-introduced, without fanfare and women are now able to get the care that Daubert denied them for so long.
The blind faith in the omniscience of judges is poorly placed, and has resulted in bad decisions regarding science, bad trial outcomes, and bad medicine.
I am still sad, however, that the result of these trials was to remove a useful drug from the market for over a decade, with the resulting damage to women's health. I suppose I can think the trial lawyers, and not SCOTUS for it, though.
My apologies for the error. And thanks for the kind email.