Role of Scientific Method Role of Scientific Method in Public Policy Analysis in Public Policy Analysis

The Admissibility of Scientific The Admissibility of Scientific Evidence & Expert Witnesses Evidence & Expert Witnesses

Varying Roles of ExpertiseVarying Roles of Expertise

LegislationLegislation

RegulationRegulation

Litigation Litigation

Some Rules of EvidenceSome Rules of Evidence Burden of proof & going forwardBurden of proof & going forward Relevance (to proposition)Relevance (to proposition) Material (to issue at trial) Material (to issue at trial) Hearsay exclusion & exceptions Hearsay exclusion & exceptions

• Business records, admissions, excited/dying utterances, Business records, admissions, excited/dying utterances, learned treatises …learned treatises …

Best EvidenceBest Evidence Foundation: chain of custody Foundation: chain of custody Other issues: criminal vs. civil, demonstrative, Other issues: criminal vs. civil, demonstrative,

judicial notice, impeachment, confrontation/cross-judicial notice, impeachment, confrontation/cross-exam & impeachment, privelege … exam & impeachment, privelege …

Frye v. U.S. Frye v. U.S.

FactsFacts: 1923 2: 1923 2ndnd degree murder defense offered degree murder defense offered expert to validate polygraph (blood pressure-expert to validate polygraph (blood pressure-type) to exonerate defendant type) to exonerate defendant

IssueIssue: What constitutes acceptable scientific : What constitutes acceptable scientific methodology to support expert testimony?methodology to support expert testimony?

HoldingHolding: methodology underlying expert’s : methodology underlying expert’s evidence must be sufficiently established to evidence must be sufficiently established to gain general acceptance in the particular gain general acceptance in the particular fieldfield

Frye v. U.S.Frye v. U.S.

Frye Frye general acceptancegeneral acceptance standard standard: : 1. ID witnesses’ expertise in particular

field of science (education, experience, contribution)

2. Determine whether expert’s methods, theories & conclusions satisfy general acceptance standard

Frye’s ImplicationsFrye’s Implications

Experts & scientific evidence excluded Experts & scientific evidence excluded unless expert qualified & testimony unless expert qualified & testimony satisfies general acceptance standard satisfies general acceptance standard

Consensus of scientific community Consensus of scientific community required from peer review, pubs, criticism, required from peer review, pubs, criticism, replication & reliability replication & reliability

Novel theories generally inadmissibleNovel theories generally inadmissible Judges relieved of deep analysisJudges relieved of deep analysis Still valid standard in dozen states +/- & Still valid standard in dozen states +/- &

continuing role in ’90s continuing role in ’90s DaubertDaubert trilogy trilogy

Daubert v. Merrell Dow PharmaDaubert v. Merrell Dow Pharma

FactsFacts: Admissibility of 8 experts re-analysis : Admissibility of 8 experts re-analysis of epidemiological statistics as well as of epidemiological statistics as well as animal & toxicological studies linking animal & toxicological studies linking Bendectin to birth defects Bendectin to birth defects

IssueIssue: Are un-published expert analyses : Are un-published expert analyses admissible to show scientific causation? admissible to show scientific causation?

HoldingHolding: reversed & remanded : reversed & remanded

DiscussionDiscussion: Frye rejected as sole : Frye rejected as sole admissibility standardadmissibility standard

Daubert v. Merrell Dow PharmaDaubert v. Merrell Dow Pharma

DiscussionDiscussion: Judges must serve as ad : Judges must serve as ad hoc admissibility reliability gatekeepershoc admissibility reliability gatekeepers

Is/can the science (be) tested?Is/can the science (be) tested? Subjected to peer review & publication Subjected to peer review & publication What is known or potential error rate What is known or potential error rate What is What is general acceptancegeneral acceptance ( (FRYE FRYE

lives) lives) in relevant scientific community?in relevant scientific community?

GE v. JoinerGE v. Joiner

FactsFacts: GE electrician claimed lung cancer : GE electrician claimed lung cancer resulted from jobsite PCB exposureresulted from jobsite PCB exposure

IssueIssue: Is there : Is there analytical gapanalytical gap? ? YESYES HoldingHolding: Expert’s conclusions & basis for : Expert’s conclusions & basis for

judgment must flow rationally from judgment must flow rationally from purported methodology purported methodology

DiscussionDiscussion: Expert’s insistence of causation : Expert’s insistence of causation must be demonstrated with full explication must be demonstrated with full explication of logic, premises, studies, links shown in of logic, premises, studies, links shown in studies: expert report susceptible to studies: expert report susceptible to support, explanation & defense support, explanation & defense

Carmichael v. Kumho TireCarmichael v. Kumho Tire

FactsFacts: Kumho blewout on Ford mini-van causing : Kumho blewout on Ford mini-van causing overturn, death, injuries overturn, death, injuries

IssueIssue: Tire failure analysis sufficiently scientific : Tire failure analysis sufficiently scientific HoldingHolding: Trial judge excluded tire expert testimony: Trial judge excluded tire expert testimonyDiscussionDiscussion: : DaubertDaubert applies to all experts applies to all experts

(technical, specialized knowledge) not just (technical, specialized knowledge) not just “scientists;” increases judge’s scrutiny of experts “scientists;” increases judge’s scrutiny of experts & methodologies; & methodologies; DaubertDaubert applies more flexibly – applies more flexibly – not checklist; appeal of trial judge allowance not checklist; appeal of trial judge allowance tested by “abuse of discretion” not “de novo” stdtested by “abuse of discretion” not “de novo” std

Trilogy ObservationsTrilogy Observations

Jury, not judge, must evaluate Jury, not judge, must evaluate conflicting expert & scientific evidence conflicting expert & scientific evidence

Judge is gatekeeper on rigor, cross-Judge is gatekeeper on rigor, cross-exam, judge instr. & BofP also key exam, judge instr. & BofP also key

Formal Formal DaubertDaubert hearings not always hearings not always necessary necessary

KumhoKumho too difficult for judges to too difficult for judges to distinguish scientific from other distinguish scientific from other technical disciplines technical disciplines

Some key emerging expertisesSome key emerging expertises Statistics, multiple-regressionStatistics, multiple-regression Survey ResearchSurvey Research Estimation of economic damagesEstimation of economic damages EpidemiologyEpidemiology ToxicologyToxicology Engineering practiceEngineering practice DNADNA Medical diagnosis & treatment Medical diagnosis & treatment Environmental & workplace exposureEnvironmental & workplace exposure Employment issues Employment issues

(@ least) Three Challenges(@ least) Three Challenges

Dissemination of Tort databases Dissemination of Tort databases ventilates experts’ views ventilates experts’ views

Expertise assumes varying roles in law Expertise assumes varying roles in law & regulation & regulation

Reform of tort/product Reform of tort/product liability/regulation could undercut liability/regulation could undercut many key many key

#1: Dissemination #1: Dissemination

National Tort Data ProjectNational Tort Data Project• NAS/NRC funded, field & empirical methodsNAS/NRC funded, field & empirical methods• Database for defensive use by AGs, DOTsDatabase for defensive use by AGs, DOTs• Traditionally rare & reputational: only secret Traditionally rare & reputational: only secret

files from insurance & class actionfiles from insurance & class action• Major push to profile experts Major push to profile experts • Increasingly well-organized, exhaustive Increasingly well-organized, exhaustive

Largely intended for risk mgt feedback Largely intended for risk mgt feedback Grave fears that plaintiff’s bar might Grave fears that plaintiff’s bar might

access access

DisseminationDissemination

Scrutiny of prior testimony arms X-exam Scrutiny of prior testimony arms X-exam to effectively depose, disparageto effectively depose, disparage

Increases stakes of 1Increases stakes of 1stst testimony testimony Every negative X-exam impacts future Every negative X-exam impacts future

feesfees Eventually IDs potentially adverse expertsEventually IDs potentially adverse experts

• Reduces ranks of all experts Reduces ranks of all experts • Isolates ideological foes Isolates ideological foes • Polarizes experts, not unlike plaintiff-defense Polarizes experts, not unlike plaintiff-defense

barbar

#2: Varying Roles of Expertise#2: Varying Roles of Expertise

LegislationLegislation

RegulationRegulation

Litigation Litigation

#3: Reform Could Undercut Need #3: Reform Could Undercut Need for Expertisesfor Expertises

Continuing drive towards reform of tort, Continuing drive towards reform of tort, product liability & regulatory programs product liability & regulatory programs likely to reduce needs for well-paid experts likely to reduce needs for well-paid experts (also: plaintiff’s bar, defense bar, judges, (also: plaintiff’s bar, defense bar, judges, catastrophic insurance coverage) catastrophic insurance coverage)

80s tort crisis is an instructive history 80s tort crisis is an instructive history • Deserves serious scholarly focus!Deserves serious scholarly focus!• Competition lowered premiums, investment Competition lowered premiums, investment

returns covered payouts until stk mkt dive returns covered payouts until stk mkt dive • Coverages w/drawn Coverages w/drawn

Tort Law is a Pendulum Tort Law is a Pendulum

1919thth Century: many limiting principles Century: many limiting principles prevented liabilityprevented liability• Fellow servant, proximate cause, privity Fellow servant, proximate cause, privity

Post 1920 torts & product liability Post 1920 torts & product liability experienced steady expansionexperienced steady expansion• New liability theoriesNew liability theories• New tortfeasor dutiesNew tortfeasor duties• ID new risksID new risks

More 20More 20thth Century Expansion Century Expansion

Recognize scientific causal links to Recognize scientific causal links to injuryinjury

New forms of injury New forms of injury • Economic damages Economic damages • Non-economic damagesNon-economic damages• Economists forcing a merger?Economists forcing a merger?

New theories of injury valuation New theories of injury valuation Public opinion expanding acceptability Public opinion expanding acceptability

Focci of Tort ReformsFocci of Tort Reforms

PlaintiffPlaintiff Injuries Injuries DefendantDefendant Duties Duties CounselCounsel Forum Forum Proofs Proofs

Future of Reform?Future of Reform?

Slow, pragmatic identification of liability Slow, pragmatic identification of liability risks & connection to a litigation process risks & connection to a litigation process

Significant federalism overtones Significant federalism overtones • Preemption: “It only takes 270!” Preemption: “It only takes 270!” • Conservative S.Ct. states righters Conservative S.Ct. states righters

Many reforms invalidated in 1990sMany reforms invalidated in 1990s• Over 1/2 States Courts Invalidate Some Reforms Over 1/2 States Courts Invalidate Some Reforms • State & Federal Constitutional Bases for Invalidation: State & Federal Constitutional Bases for Invalidation:

Right to remedy, court openRight to remedy, court open Due process, equal protection Due process, equal protection

• Most Vulnerable Reforms: Damage caps, statutes of Most Vulnerable Reforms: Damage caps, statutes of repose, collateral source rule, specific industry repose, collateral source rule, specific industry exemptionsexemptions