Daubert’s Silver Anniversary – Retrospective View of Its Friends and Enemies

Science is inherently controversial because when done properly it has no respect for power or political correctness or dogma or entrenched superstition. We should thus not be surprised that the scientific process has many detractors in houses of worship, houses of representatives, and houses of the litigation industry. And we have more than a few “Dred Scott” decisions, in which courts have held that science has no criteria of validity that they are bound to follow.

To be sure, many judges have recognized a different danger in scientific opinion testimony, namely, its ability to overwhelm the analytical faculties of lay jurors. Fact-finders may view scientific expert witness opinion testimony as having an overwhelming certainty and authority, which swamps their ability to evaluate the testimony.1

One errant judicial strategy to deal with their own difficulty in evaluating scientific evidence was to invent a fictitious divide between a scientific and legal burden of proof:2

Petitioners demand sole reliance on scientific facts, on evidence that reputable scientific techniques certify as certain. Typically, a scientist will not so certify evidence unless the probability of error, by standard statistical measurement, is less than 5%. That is, scientific fact is at least 95% certain. Such certainty has never characterized the judicial or the administrative process. It may be that the ‘beyond a reasonable doubt’ standard of criminal law demands 95% certainty. Cf. McGill v. United States, 121 U.S.App. D.C. 179, 185 n.6, 348 F.2d 791, 797 n.6 (1965). But the standard of ordinary civil litigation, a preponderance of the evidence, demands only 51% certainty. A jury may weigh conflicting evidence and certify as adjudicative (although not scientific) fact that which it believes is more likely than not.”

By falsely elevating the scientific standard, judges see themselves free to decide expeditiously and without constraints, because they are operating at much lower epistemic level.

Another response advocated by “the Lobby,” scientists in service to the litigation industry, has been to deprecate gatekeeping altogether. Perhaps the most brazen anti-science response to the Supreme Court’s decision in Daubert was advanced by David Michaels and his Project on Scientific Knowledge and Public Policy (SKAPP). In its heyday, SKAPP organized meetings and conferences, and cranked out anti-gatekeeping propaganda to the delight of the litigation industry3, while obfuscating and equivocating about the source of its funding (from the litigation industry).4

SKAPP principal David Michaels was also behind the efforts of the American Public Health Association (APHA) to criticize the judicial move to scientific standards in gatekeeping. In 2004, Michaels and fellow litigation industrialists prevailed upon the APHA to adopt a policy statement that attacked evidence-based science and data transparency in the form of “Policy Number: 2004-11 Threats to Public Health Science.”5

SKAPP appears to have gone the way of the dodo, although the defunct organization still has a Wikipedia­ page with the misleading claim that a federal court had funded its operation, and the old link for this sketchy outfit now redirects to the website for the Union of Concerned Scientists. In 2009, David Michaels, fellow in the Collegium Ramazzini, and formerly the driving force of SKAPP, went on to become an under-secretary of Labor, and OSHA administrator in the Obama administration.6

With the end of his regulatory work, Michaels is now back in the litigation saddle. In April 2018, Michaels participated in a ruse in which he allowed himself to be “subpoenaed” by Mark Lanier, to give testimony in a cases involving claims that personal talc use caused ovarian cancers.7 Michaels had no real subject matter expertise, but he readily made himself available so that Mr. Lanier could inject Michaels’ favorite trope of “doubt is their product” into his trial.

Against this backdrop of special pleading from the litigation industry’s go-to expert witnesses, it is helpful to revisit the Daubert decision, which is now 25 years old. The decision followed the grant of the writ of certiorari by the Supreme Court, full briefing by the parties on the merits, oral argument, and twenty two amicus briefs. Not all briefs are created equal, and this inequality is especially true of amicus briefs, for which the quality of argument, and the reputation of the interested third parties, can vary greatly. Given the shrill ideological ranting of SKAPP and the APHA, we might find some interest in what two leading scientific organizations, the American Association for the Advancement of Science (AAAS) and the National Academy of Science (NAS), contributed to the debate over the proper judicial role in policing expert witness opinion testimony.

The Amicus Brief of the AAAS and the NAS, filed in Daubert v. Merrell Dow Pharmaceuticals, Inc., U.S. Supreme Court No. 92-102 (Jan. 19, 1993), was submitted by Richard A. Meserve and Lars Noah, of Covington & Burling, and by Bert Black, of Weinberg & Green. Unfortunately, the brief does not appear to be available on Westlaw, but it was republished shortly after filing, at 12 Biotechnology Law Report 198 (No. 2, March-April 1993) [all citations below are to this republication].

The amici were and are well known to the scientific community. The AAAS is a not-for-profit scientific society, which publishes the prestigious journal Science, and engages in other activities to advance public understanding of science. The NAS was created by congressional charter in the administration of Abraham Lincoln, to examine scientific, medical, and technological issues of national significance. Brief at 208. Meserve, counsel of record for these Amici Curiae, is a member of the National Academy, a president emeritus of the Carnegie Institution for Science, and a former chair of the U.S. Nuclear Regulatory Commission. He received his doctorate in applied physics from Stanford University, and his law degree from Harvard. Noah is now a professor of law in the University of Florida, and Black is still a practicing lawyer, ironically for the litigation industry.

The brief of the AAAP and the NAS did not take a position on the merits of whether Bendectin can cause birth defects, but it had a great deal to say about the scientific process, and the need for courts to intervene to ensure that expert witness opinion testimony was developed and delivered with appropriate methodological rigor.

A Clear and Present Danger

The amici, AAAS and NAS, clearly recognized a threat to the integrity of scientific fact-finding in the regime of uncontrolled and unregulated expert witness testimony. The amici cited the notorious case of Wells v. Ortho Pharmaceutical Corp.8, which had provoked an outcry from the scientific community, and a particularly scathing article by two scientists from the National Institute of Child Health and Human Development.9

The amici also cited several judicial decisions on the need for robust gatekeeping, including the observations of Judge Jack Weinstein that

[t]he uncertainty of the evidence in [toxic tort] cases, dependent as it is on speculative scientific hypotheses and epidemiological studies, creates a special need for robust screening of experts and gatekeeping under Rules 403 and 703 by the court.”10

The AAAS and the NAS saw the “obvious danger that research results generated solely for litigation may be skewed.” Brief at 217& n.11.11 The AAAS and the NAS thus saw a real, substantial threat in countenancing expert witnesess who proffered “putatively scientific evidence that does not in fact reflect the application of scientific principles.” Brief at 208. The Supreme Court probably did not need the AAAS and the NAS to tell them that “[s]uch evidence can lead to incorrect decisions and can serve to discredit the contributions of science,” id., but it may have helped ensure that the Court articulated meaningful guidelines to trial judges to police their courtrooms against scientific conclusions that were not reached in accordance with scientific principles. The amici saw and stated that

[t]he unique persuasive power of scientific evidence and its inherent limitations requires that courts engage special efforts to ensure that scientific evidence is valid and reliable before it is admitted. In performing that task, courts can look to the same criteria that scientists themselves use to evaluate scientific claims.”

Brief at 212.

It may seem quaint to the post-modernists at the APHA, but the AAAS and the NAS were actually concerned “to avoid outcomes that are at odds with reality,” and they were willing to urge that “courts must exercise special care to assure that such evidence is based on valid and reliable scientific methodologies.” Brief at 209 (emphasis added). The amici also urged caution in allowing opinion testimony that conflicted with existing learning, and which had not been presented to the scientific community for evaluation. Brief at 218-19. In the words of the amici:

Courts should admit scientific evidence only if it conforms to scientific standards and is derived from methods that are generally accepted by the scientific community as valid and reliable. Such a test promotes sound judicial decisionmaking by providing workable means for screening and assessing the quality of scientific expert testimony in advance of trial.”

Brief at 233. After all, part of the scientific process itself is weeding out false ideas.

Authority for Judicial Control

The AAAS and NAS and its lawyers gave their full support to Merrill Dow’s position that “courts have the authority and the responsibility to exclude expert testimony that is based upon unreliable or misapplied methodologies.” Brief at 209. The Federal Rules of Evidence, and Rules 702, 703, and 403 in particular, gave trial courts “ample authority for empowering courts to serve as gatekeepers.” Brief at 230. The amici argued what ultimately would become the law, that judicial control, in the spirit and text of the Federal Rules, of “[t]hreshold determinations concerning the admissibility of scientific evidence are necessary to ensure accurate decisions and to avoid unnecessary expenditures of judicial resources on collateral issues. Brief at 210. The AAAS and NAS further recommended that:

Determinations concerning the admissibility of expert testimony based on scientific evidence should be made by a judge in advance of trial. Such judicial control is explicitly called for under Rule 104(a) of the Federal Rules of Evidence, and threshold admissibility determinations by a judge serve several important functions, including simplification of issues at trial (thereby increasing the speed of trial), improvement in the consistency and predictability of results, and clarification of the issues for purposes of appeal. Indeed, it is precisely because a judge can evaluate the evidence in a focused and careful manner, free from the prejudices that might infect deliberations by a jury, that the determination should be made as a threshold matter.”

Brief at 228 (internal citations omitted).

Criteria of Validity

The AAAS and NAS did not shrink from the obvious implications of their position. They insisted that “[i]n evaluating scientific evidence, courts should consider the same factors that scientists themselves employ to assess the validity and reliability of scientific assertions.” Brief at 209, 210. The amici may have exhibited an aspirational view of the ability of judges, but they shared their optimistic view that “judges can understand the fundamental characteristics that separate good science from bad.” Brief at 210. Under the gatekeeping regime contemplated by the AAAS and the NAS, judges would have to think and analyze, rather than delegating to juries. In carrying out their task, judges would not be starting with a blank slate:

When faced with disputes about expert scientific testimony, judges should make full use of the scientific community’s criteria and quality-control mechanisms. To be admissible, scientific evidence should conform to scientific standards and should be based on methods that are generally accepted by the scientific community as valid and reliable.”

Brief at 210. Questions such as whether an hypothesis has survived repeated severe, rigorous tests, whether the hypothesis is consistent with other existing scientific theories, whether the results of the tests have been presented to the scientific community, need to be answered affirmatively before juries are permitted to weigh in with their verdicts. Brief at 216, 217.

The AAAS and the NAS acknowledged implicitly and explicitly that courtrooms were not good places to trot out novel hypotheses, which lacked severe testing and sufficient evidentiary support. New theories must survive repeated testing and often undergo substantial refinements before they can be accepted in the scientific community. The scientific method requires nothing less. Brief at 219. These organizational amici also acknowledged that there will be occasionally “truly revolutionary advances” in the form of an hypothesis not fully tested. The danger of injecting bad science into broader decisions (such as encouraging meritless litigation, or the abandonment of useful products) should cause courts to view unestablished hypotheses with “heightened skepticism pending further testing and review.” Brief at 229. In other words, some hypotheses simply have not matured to the point at which they can support tort or other litigation.

The AAAS and the NAS contemplated that the gatekeeping process could and should incorporate the entire apparatus of scientific validity determinations into Rule 104(a) adjudications. Nowhere in their remarkable amicus brief do they suggest that if there some evidence (however weak) favoring a causal claim, with nothing yet available to weigh against it, expert witnesses can declare that they have the “weight of the evidence” on their side, and gain a ticket to the courthouse door. The scientists at SKAPP, or now those at the Union for Concerned Scientists, prefer to brand gatekeeping as a trick to sell “doubt.” What they fail to realize is that their propaganda threatens both universalism and organized skepticism, two of the four scientific institutional norms, described by sociologist of science Robert K. Merton.12

1 United States v. Brown, 557 F.2d 541, 556 (6th Cir. 1977) (“Because of its apparent objectivity, an opinion that claims a scientific basis is apt to carry undue weight with the trier of fact”); United States v. Addison, 498 F.2d 741, 744 (D.C. Cir. 1974) (“scientific proof may in some instances assume a posture of mystic infallibility in the eyes of a jury of laymen”). Some people say that our current political morass reflects poorly on the ability of United States citizens to assess and evaluate evidence and claims to the truth.

2 See, e.g., Ethyl Corp. v. EPA, 541 F.2d 1, 28 n.58 (D.C. Cir.), cert. denied, 426 U.S. 941 (1976). See also Rhetorical Strategy in Characterizing Scientific Burdens of Proof(Nov. 15, 2014).

3 See, e.g., Project on Scientific Knowledge and Public Policy, “Daubert: The Most Influential Supreme Court Ruling You’ve Never Heard Of(2003).

4 See, e.g., SKAPP A LOT(April 30, 2010); “Manufacturing Certainty(Oct. 25, 2011);David Michaels’ Public Relations Problem(Dec. 2, 2011); Conflicted Public Interest Groups (Nov. 3, 2013).

7 Notes of Testimony by David Michaels, in Ingham v. Johnson & Johnson, Case No. 1522-CC10417-01, St. Louis Circuit Ct, Missouri (April 17, 2018).

8 788 F.2d 741, 744-45 (11th Cir.), cert. denied, 479 U.S. 950 (1986). Remarkably, consultants for the litigation industry have continued to try to “rehabilitate” the Wells decision. SeeCarl Cranor’s Conflicted Jeremiad Against Daubert” (Sept. 23, 2018).

9 James L. Mills & Duane Alexander, “Teratogens and Litogens,” 315 New Engl. J. Med. 1234, 1235 (1986).

10 Brief at n. 31, citing In re Agent Orange Product Liab. Litig., 611 F. Supp. 1267, 1269 (E.D.N.Y. 1985), aff’d, 818 F.2d 187 (2th Cir. 1987), cert. denied, 487 U.S. 1234 (1988).

11 citing among other cases, Perry v. United States, 755 F.2d 888, 892 (11th Cir. 1985) (“A scientist who has a formed opinion as to the answer he is going to find before he even begins his research may be less objective than he needs to be in order to produce reliable scientific results.”).

12 Robert K. Merton, “The Normative Structure of Science,” in Robert K. Merton, The Sociology of Science: Theoretical and Empirical Investigations, chap. 13, at 267, 270 (1973).

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