Part Two. (Professor Haack presents six “irreconcilable differences” between science and the law. In the first part, I looked at the first three of these six differences. The remaining three are discussed below.)
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(iv) “Because of its adversarial character, the legal system tends to draw in as witnesses scientists who are in a sense marginal more willing than most of their colleagues to give an opinion on the basis of less-than-overwhelming evidence; moreover, the more often he serves as an expert witness, the more unbudgeably confident a scientist may become in his opinion.” Id. at 16.
Haack’s point appears unexceptional, although in my experience defendants typically cannot risk sponsoring “marginal” witnesses. Plaintiffs’ counsel, however, do sponsor marginal witnesses because they know that the jury system gives them a sympathy boost from the emotions aroused in a serious injury case.
Haack provides examples of “marginal” science and witnesses that are disturbing for the biases and prejudices that she exhibits. Haack focuses upon Dr Robert Brent, a toxicologist, who seems to pop into her mind as Merrell Dow’s expert witness “always ready to testify that Bendectin does not cause birth defects.” Id. at 17. Really? Haack presents no evidence or suggestion that Brent was wrong, and indeed, Brent published widely on his views of the subject. Wide publication does not necessarily mean Brent was right, but at least he was willing to subject himself to professional peer review, and post-publication, professional challenges. Still, Haack is distressed that Dr Robert Brent opines with “unwarranted certainty” that Bendectin does not cause birth defects, but she offers no suggestion or support that his certainty was or is misplaced.
In stark contrast, Haack expresses no discomfort with Bendectin plaintiffs’ expert witness, Dr Done, and with the facile ease with which he opined with certainty that Bendectin does cause birth defects. Here there really is a great deal of empirical evidence, and it has largely vindicated Dr Brent’s views on the safety and efficacy of Merrell Dow’s medication. Dr Done’s subjective appreciation of “flaws” in some clinical trials does not transmute criticism into affirmative evidence in favor of the opinion that he so zealously, and overzealously, advocated in many Bendectin cases, for his own substantial pecuniary benefit. What is remarkable about Haack’s article is that she singles out Dr Brent in the context of a discussion of “marginal” and “willing” testifying scientists, but she omits any mention of the plaintiffs’ cadre of ready, willing, and somewhat disreputable testifiers. Perhaps even more remarkable is that Haack overlooks that Dr Done was essentially fired from his university for his entrepreneurial testimonial activities of dubious scientific worth, and that he may well have lied about his credentials. See M. Green, Bendectin and Birth Defects: The Challenges of Mass Toxic Substances Litigation 280 – 82 (Philadelphia 1996) (citing decisional law in which Done’s lack of veracity was judicially noted).
Haack offers the silicone breast implant litigation as another example of legal proceedings that may have been based upon adversarial posturing, but she equivocates by suggesting that the litigation may have been based upon a “(mis?)perception.” Id. at 17. Haack’s question mark is telling. Was the public’s (mis?)perception that silicone implants caused connective tissue diseases “generated in part by the legal system”?
Here Haack is reluctant to come to terms with the reality that that the public really was misled by the legal system’s willingness to enter judgments upon verdicts for plaintiffs, based upon weak and bogus science. These verdicts were returned, of course, before the spirit of Daubert helped cleanse the courtroom of the plaintiffs’ expert witnesses recently described by Judge Jack Weinstein as “medical charlatans”:
“[t]he breast implant litigation was largely based on a litigation fraud. … Claims—supported by medical charlatans—that enormous damages to women’s systems resulted could not be supported.”
Haack’s brief narrative also misses the true origins of the silicone controversy. The misleading started with scientists who had genuine “enthusiasm” for the causal hypothesis and exuberant, perhaps all-too-human, but unscientific excitement that an exogenous cause for autoimmune disease had been discovered. The press and the Sidney Wolfes of the world then stirred the pot before the plaintiffs’ lawyers pounced on such an enticing opportunity. Dr Kessler’s moratorium at FDA ultimately forced plaintiffs’ counsel to file cases (if for no other reason than to protect the clients against the statute of limitations). Between Dr Kessler’s moratorium and the pronouncements of the IOM and Judge Pointer’s panels, there were jury verdicts in favor of plaintiffs (and many in favor of defendants), all signifying the waste of tremendous resources.
Haack’s observation that law relies on adversarial procedure, is hardly newsworthy, at least in common-law countries. This reliance is not a strongly distinguishing feature, however, between law and science. Haack expresses a concern that some of our scientific knowledge base is developed by industry, which even in the communist world, is motivated by an adversarial spirit to capture markets and profits. Money, however, is but one motive and inducement to adversity. Surely, university professors are often locked in heated, adversarial disputes and debates over arcane scholarly issues. Are full professorships, tenure, endowments, and funding mere bagatelles? Sure, there are paeans to sharing data and collaborative scientific enterprises, but what is the empirical evidence that these lofty sentiments are followed in practice? Perhaps most persuasive is the testimony of scientists themselves, who acknowledge the presence and value of adversity in science:
“[One] way of dealing with errors is to have friends who are willing to spend the time necessary to carry out a critical examination of the experimental design beforehand and the results after the experiments have been completed. An even better way is to have an enemy. An enemy is willing to devote a vast amount of time and brain power to ferreting out errors both large and small, and this without any compensation. The trouble is that really capable enemies are scarce; most of them are only ordinary. Another trouble with enemies is that they sometimes develop into friends and lose a good deal of their zeal. It was in this way the writer lost his three best enemies. Everyone, not just scientists, need a few good enemies!”
George Olah, “My Search for Carbocations and Their Role in Chemistry; Nobel Lecture (Dec. 8, 1994), quoting George von Bekessy (Nobel prize winner in medicine, 1961).
The differentiation between law and science in terms of adversity fails. Indeed, Haack herself notes an “erosion in the ethos of science. Id. at 9n.54, and notes that scientists, like all human beings, sometimes act from mixed or dubious motives. Id. at 9. This concession alone is enough to support the legal procedures of expert witness opinion gatekeeping.
(v) “Legal rules can make it impossible to bring potentially useful scientific information to light; and the legal penchant for rules, “indicia,” and the like sometimes transmutes scientific subtleties into formulaic legal shibboleths.” Id. at 18.
One of Haack’s concerns is that a scientific conclusion may be built from many different pieces of evidence, and that the Daubert process “atomizes” the overall evidence by looking at one witness’s opinions at a time. She points out that a conclusion may be based upon toxicology, epidemiology, or clinical medicine, none of which is alone sufficient to warrant a causal conclusion. Id. at 18. This concern is rarely realized in practice because the witnesses always remain in control of their opinions. They need not articulate the “bottom-line” conclusion; they can limit their opinion to a foundational opinion, which another expert witness will incorporate into a conclusion. Once a witness, however, voices the ultimate causal conclusion, that witness will have to identify all the pieces and lines of supporting evidence. The Daubert process can then proceed to ask whether the epistemic warrant is present in that witness’s opinion. Haack’s misplaced concern appears to arise out of her unfamiliarity with how expert witness opinions are tendered, challenged, and reviewed.
Haack’s concern also ignores that regardless of the possibility of “interlocking pieces of evidence,” sometimes the evidence does not cohere sufficiently to warrant the conclusion. “Science is built up with facts, as a house is with stones. But a collection of facts is no more a science than a heap of stones is a house.” Jules Henri Poincaré, La Science et l’hypothèse (1905)
(vi) “Both because of its concern for precedent, and because of the desideratum of finality, the legal system has a tendency to inertia, and sometimes lags behind science.” Id. at 20.
Like many naïve commentators, Haack seems perplexed and perhaps disturbed that the Daubert decision, which held that Rule 702 did not incorporate the Frye rule, led to more restrictive judicial gatekeeping of scientific opinion testimony. Id. at 6. Haack simply is unaware of the judicial legacy of Frye, which led to exclusion of evidence based upon novel scientific devices, but which was often feckless against expert witnesses who outran their headlights. Before Daubert, there often was no standard; the epistemic anarchy of Ferebee ordained that expert witnesses had free-rein to reek and wreak.
Of course, “law lags science,” and for the good reasons explained by Judge Posner. Rosen v. Ciba Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996).
Curiously, Haack expresses dismay that law is overly concerned with precedent, but at the same time notes that the admission and exclusion of expert witness opinion testimony is reviewed for abuse of discretion, and that in some instances, courts could rule either way and still be sustained on appeal.
Haack’s writings on science recognize that the core activity of science is inquiry, which is judged pragmatically as successful or not in terms of whether its answers have predictive and explanatory power. For Haack, the legal system “could hardly be more different, with its emphasis on adversarial procedure, promptness and finality, case-specific fact finding, precedent, and policy considerations. Id. at 12. As discussed above, Haack overstates and misstates the differences.
The key to Haack’s conception of the legal side of the “marriage” is her insistence that the legal system exists to resolve disputes by making determinations of liability, not to find out whether a defendant is really liable. Id. There are certainly judges, who unduly impressed with their own procedural efficiency, and unconcerned with the truth-finding function of trials, who would agree with Haack’s rhetoric, but many judges, lawyers, and scholars would disagree. A trial is a search for the truth, even if under time and procedural constraints. The legal system suffers when judgments in court turn on scientific findings that diverge too much from good scientific practice. This is the ultimate provenance of, and lesson from, the Supreme Court’s decision in Daubert.
