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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]

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ralph:
But those poor people are suffering.....
10.3.2006 11:04am
Anderson (mail) (www):
A good article, but "majority troika" is unnecessary. I wouldn't try that in any briefs.
10.3.2006 11:04am
MnZ (mail):
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.


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.
10.3.2006 11:32am
Rich B. (mail):

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."


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:


Here, Dr. Neugebauer, one of the expert epidemiologists, analyzed two studies performed by City experts, and he conducted his own study to determine whether there was an increased incidence of acute lymphoid leukemia in the area closest to the Pelham Bay landfill. While the City's studies and Dr. Neugebauer's study came to opposite conclusions, the methodology used in conducting the epidemiological studies was in strict conformity with the dictates of this field of science and the studies are properly admissible evidence.


I see no problem with a jury seeing all three studies.
10.3.2006 11:43am
Boxer (mail):
"Cross examination is the greatest engine for the discovery of truth devised in our courts of law...." I may not have the quote correct word for word - or remember its proper attribution - but the essence of the point remains the same. The whole notion of "junk science" persuading juries is - to use the technical legal term -poppycock.

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
10.3.2006 12:35pm
JohnAnnArbor:

The whole notion of "junk science" persuading juries is - to use the technical legal term -poppycock.

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.
10.3.2006 12:41pm
Houston Lawyer:
Juries should not be allowed to determine questions that are a matter debated among scientists. Just look at the billions of dollars coughed up by the makers of breast implants because plaintiff's attorneys were able to convince juries that they were bad. The conclusive scientific studies later showing no causation based upon breast implants were of little use to those successfully sued based upon faulty "science". And how is a jury supposed to determine that Vioxx contributed to someone's death, when a trained physician couldn't determine that?
10.3.2006 12:58pm
Fub:
David Bernstein wrote:
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).
If your objection is to the general acceptance of high dosage lab rat studies to establish lower dosage effects in humans, there may be a considerable body of accepted practice to overcome. I am not expert on the matter by any means, but I believe that some accepted analytical rationales as well as results of actual testing do offer support for the method. I also agree that the method seems counterintuitive at first glance, but its use is very widespread.

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.
10.3.2006 1:38pm
Jeff R.:
As long as Chiropractors retain equal status in courts to, you know, actual medical doctors, it'll be hard to believe that there's any real interest in reforms in this area...
10.3.2006 2:01pm
Jeremy T:
Couldn't agree more about chiropracters, Jeff.

I think Daubert is too liberal... always been more of a Frye guy.
10.3.2006 2:16pm
Tareeq (www):
As long as Chiropractors retain equal status in courts to, you know, actual medical doctors, it'll be hard to believe that there's any real interest in reforms in this area...

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.
10.3.2006 2:29pm
Bryan DB:
Houston Lawyer:
Just how many issues do you think are *not* "debated among scientists?"
10.3.2006 2:42pm
NickM (mail) (www):
Without expert testimony as to causation, as opposed to statistically significant increase in the neighborhood, why is this case even in front of a jury? Some substance found outside the landfill could very well be responsible for the additional cancers, and this is not a proper situation to apply res ipsa loquitur. It is only speculation that the jury was presented with.

Nick
10.3.2006 3:06pm
MnZ (mail):
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.


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.
10.3.2006 3:50pm
MnZ (mail):
Without expert testimony as to causation, as opposed to statistically significant increase in the neighborhood, why is this case even in front of a jury? Some substance found outside the landfill could very well be responsible for the additional cancers, and this is not a proper situation to apply res ipsa loquitur. It is only speculation that the jury was presented with.


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.
10.3.2006 3:55pm
Boxer (mail):
I have looked at the comments - and it makes me wonder if anyone arguing for further assault on the right to trial by jury (a niggling little notion that gained some attention by means of its inclusion in trifling little documents like the Delcaration of Independence and the Constitution of the United States of America) and it makes me wonder if those we need more big governement because the people are stupid - advocates have looked at any of the - errrr - sorry - scientific studies on jury verdicts, jury persuasion and the real world.
10.3.2006 4:27pm
MnZ (mail):
Boxer,

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.
10.3.2006 6:03pm
MnZ (mail):
Oops...make that "hearsay."
10.3.2006 6:06pm
JohnAnnArbor:
Boxer's just stomping his/her/its foot, trying to change the subject. Trial lawyers like the system they have now: If the facts go your way, fine. If not, obscure the facts as much as possible with emotion, ideally with a few pet "experts" who will take any position for the right cut.

Remember, those Lexuses don't pay for themselves!
10.3.2006 6:18pm
bruce (mail):
If a judge can act as a "gatekeeper" and decide which experts to keep out, a jury can do the same thing an decide which experts are unreliable and should not be listened to. I'll never understand why any half-decent lawyer would be afraid of letting the opposing side call an unqualified expert touting flawed research/methadoloty to the stand. Why keep out an opposing witness who can be so thoroughly cross-examined? The mere act of trying to keep out such a witness, in my opinion, implicitly concedes at least some validity in what the expert wants to testify about.
10.3.2006 11:53pm
bruce (mail):
In addition, and as a prime example, you didn't see Clarence Darrow try to prevent WJ Bryan from testifying as a "bible" expert in Scopes. Heck, it was Darrow's idea to call him as such an expert. Granted this was before Daubert, but the point remains.
10.3.2006 11:55pm
ray_g:
If you are interested in a book on this subject, I recommend "Galileo's Revenge: Junk Science in the Courtroom" by Peter W. Huber. It is on Amazon.

"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.
10.4.2006 11:14am
Boxer (mail):
Two quick points:

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.
10.4.2006 12:35pm
Luke 1152 (mail):

junk science still plagues American courtrooms.

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.

"Then why do trial lawyers like you routinely throw engineers and scientists out of jury pools?"

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.
10.4.2006 1:41pm
William Oliver (mail) (www):
The problem with Daubert is that it makes a very bad assumption -- that judges are competent at deciding what is and is not "good" science. As a person who has had to face a number of Daubert hearings, I concur with Rhenquist and Steven's dissent in that case:

"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.
10.5.2006 10:37am
William Oliver (mail) (www):
Correction! I've just been informed (by email) that in fact after being remanded, the lower court again refused to allow the the bizarre statistical argument. I was under the impression that the lower court refused to allow the testimony, and the Supreme Court, in Daubert, told them they had to admit it. I'm glad to be corrected.

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.
10.5.2006 5:23pm