Reconstructing Professor Sanders on Expert Witness Gatekeeping

Last week, I addressed two papers from a symposium organized by the litigation industry to applaud the First Circuit’s decision in Milward v. Acuity Products Group, Inc., 639 F.3d 11 (1st Cir. 2011), cert. denied, 132 S.Ct. 1002 (2012).  Professor Joseph Sanders also contributed to the symposium, in a paper that is a bit more measured, scholarly, and disinterested than the other papers in the group.  Joseph Sanders, “Milward v. Acuity Specialty Products Group: Constructing and Deconstructing Sciences and Law in Judicial Opinion,3 Wake Forest J. L & Policy 141 (2013).  PDF  Still, the industry sponsor, the so-called Center for Progressive Reform, has reasons to be satisfied with the result.

Sanders argues that the Milward opinion is important because it highlights what he characterizes as a “rhetorical conflict that has been ongoing, often below the surface, since the United States Supreme Court’s 1993 opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc.”  Id. at 142.  The argument is overly kind to the judiciary.  There has not been so much as a rhetorical conflict as a reactionary revolt against evidence-based decision making in the federal courts.  Milward simply represents the highwater mark of this revolt against law and science.  See, e.g., David Bernstein on the Daubert Counterrevolution (April 19, 2013).

Sanders invokes the ghost of Derrida and his black brush of deconstruction to suggest that the Daubert process is nothing more than the unraveling of the scientific enterprise, with the goal of showing that it is arbitrary and subjective.  Sanders at 143-44.  According to Sanders, radical deconstruction pushes towards a leveling of “distinctions between fact and faction … more akin to poetry and music than to evidence and argument.” Id. at 145 (citing Stephan Fuchs & Steven Ward, “What Is Deconstruction and Where and When Does It Take Place? Making Facts in Science, Building Cases in Law,” 59 Am. Soc. Rev. 481, 482-83 (1994)).

Lawyers sometimes realize the cost of radical deconstruction is a nihilism that undermines their own credibility and their ability to claim or defend factual assertions.  Sometimes, of course, lawyers ignore these considerations and talk out of both sides of their mouths. In re Welding Fume Prods. Liab. Litig., No. 1:03-CV-17000, MDL 1535, 2006 WL 4507859, *33 (N.D. Ohio 2006) (“According to plaintiffs, the rate of PD [Parkinson’s disease] mortality is so poor a proxy for measuring the rate of overall PD incidence, that the Coggon study proves nothing. In the next breath, however, plaintiffs set forth an unpublished statistical analysis (by Dr. Wells) of PD mortality data collected by the National Center for Health Statistics, arguing it proves that welders, as a group, suffer earlier onset of PD than the general population.77 Of course, the devil is in the details, discussion of which is beyond the scope of this opinion (and perhaps beyond the scope of understanding of the average juror),78 but this example shows how hard it is to tease out whether the limitations of a given study make it unreliable under Daubert.”).

Sanders gives a nod to Sheila Jasanoff, whom he quotes with apparent approval:

“[t]he adversarial structure of litigation is particularly conducive to the deconstruction of scientific facts, since it provides both the incentive (winning the lawsuit) and the formal means (cross-examination) for challenging the contingencies in their opponents’ scientific arguments.”

Sanders at 147 (quoting Shelia Jasanoff, “What Judges Should Know About the Sociology of Science,” 32 Jurimetrics J. 345, 348 (1992)).

With his acknowledgment that adversarial litigation of scientific issues involves  “deconstruction,” or just good, old-fashioned rhetorical excess, Sanders points to the Daubert trilogy as the Supreme Court’s measured response to the problem.

Sanders is, however, not entirely happy about the judiciary’s attempt to rein in the rhetorical excesses of adversarial litigation of scientific issues. Daubert barely scratched the surface of the scientific validity and reliability issues in the Bendectin record, but Sanders asserts that Chief Justice Rehnquist went too far in looking under the hood of the lemon that Joiner’s expert witnesses were trying to sell:

“perhaps Chief Justice Rehnquist erred in the other direction in Joiner when he systematically reviewed the animal studies and four separate epidemiological studies cited by the plaintiff as supporting the position that exposure to PCBs either caused or ‘promoted’66 the plaintiff’s lung cancer.67

Sanders at 154.  Horrors!  A systematic review!! Perish the thought.

Sanders seems to fault the Chief Justice’s approach of picking off “one-by-one” the studies relied upon by Joiner’s expert witnesses as a deconstructive exercise.  Id. at 154 – 55.  As Sanders notes, the Court’s opinion delved into the internal and external validity of the four cited epidemiologic studies to recognize that the:

“studies did not support the plaintiff’s position because the authors of the study said there was no evidence of a relationship, the relationship was not statistically significant, the substance to which the subjects were exposed was not the same as that to which Mr. Joiner was exposed, and the subjects were simultaneously exposed to other carcinogens.70

Id. at 155.  To be fair, not all of these were dispositive considerations, but they represent a summary of a district court’s extensive consideration of the scientific record.

Channeling Susan Haack, Sanders argues that the one-by-one approach (which Professor Green pejoratively called a “Balkanized” approach, and Sanders calls “atomistic”) ignores that a wall is made up of constituent bricks.  Sanders might have done better to study a more accomplished philosopher-scientist:

“[O]n fait la science avec des faits comme une maison avec des pierres; mais une accumulation de faits n’est pas plus une science qu’un tas de pierres n’est une maison.”

Jules Henri Poincaré, La Science et l’Hypothèse (1905) (chapter 9, Les Hypothèses en Physique)(“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.”).  Poincaré’s metaphor is more powerful and descriptive than Sander’s because it acknowledges that interlocking pieces of evidence may cohere as a building, or they may be no more than a pile of rubble.  Deeper analysis is required. Poorly constructed walls revert to the pile of bricks from which they came.  Furthermore, the mason must look at the individual bricks to see whether they are cracked, crumbling, or crooked before building a wall that must endure. We want a wall that will endure at least long enough to stand on, or put a roof on. Much more is required than simply invoking “mosaics,” “walls from bricks,” or “crossword puzzles” to transmute a pile of studies into a “warranted” claim to knowledge. Litigants, either plaintiff or defendant, should not be allowed to pick out isolated findings in a variety of studies, and throw them together as if that were science.  This is precisely the rhetorical excess against which Rule 702, with its requirement of “knowledge,” should protect judges, juries, and litigants.

Indeed, as Sanders eventually concedes, the Joiner Court noted the appropriateness of considering the four relied-upon epidemiologic studies, individually or collectively:

“We further hold that, because it was within the District Court’s discretion to conclude that the studies upon which the experts relied were not sufficient, whether individually or in combination, to support their conclusions that Joiner’s exposure to PCB’s contributed to his cancer, the District Court did not abuse its discretion in excluding their testimony.71

General Elec. Co. v. Joiner, 522 U.S. 136, 146-47 (1997).

Professor Sanders might have raised a justiciable argument against the gatekeeping process in Joiner if he had shown, or if he had adverted to other analyses, that the four relied-upon studies collectively meshed to overcome each other’s clear inadequacies.  The silence of Sanders, and other critics, on this score is telling.  Was Rabbi Teitelbaum (one of the Joiners’ expert witnesses) simply insightful or prescient in reading the early returns on PCBs and lung cancer?  What has happened subsequently?  Has the IARC embraced PCBs as a known cause of lung cancer?  Have well-conducted studies and meta-analyses vindicated Teitelbaum’s claims, or have they further confirmed that the gatekeeping in Joiner successfully excluded witnesses who were advancing pathologically weak, specious claims, by pushing and squeezing data until they fit into a pre-determined causal conclusions.

The complaints about judicial “deconstruction” are unfair and empty without looking at these details.  It behooves evidence scholars who want to write in this area to roll up their sleeves and look at the evidence that was in front of the courts, and to learn something about science.  Of course, scientists did not stop exploring the PCB/lung cancer hypothesis after Joiner was decided.  See, e.g, Avima Ruder, Misty Hein, Nancy Nilsen, et al., “Mortality among Workers Exposed to Polychlorinated Biphenyls (PCBs) in an Electrical Capacitor Manufacturing Plant in Indiana: An Update,” 114 Envt’l Health Perspect. 18 (2006) (study by National Institute for Occupational Safety and Health, showing reduced rates of respiratory cancer among PCB-exposed workers, with age-standardized risk ratio of 0.85, and a 95% confidence interval, 0.6 to 1.1)

Stevens’ partial dissent in Joiner of course invested deeply in the mosaic theory, which we now know was the brainchild of plaintiffs’ counsel, Barry Nace. Michael D. Green, “Pessimism about Milward,” 3 Wake Forest J. L & Policy 41, 63 (2013) (reporting that Barry Nace acknowledged having “fed” this rhetorical device to expert witness Alan Done to support arguments for manufacturing certainty in the face of an emerging body of exonerative evidence).  Justice Stevens also cited the EPA as employing “weight of the evidence,” which simply makes the point that WOE is a precautionary approach to scientific evidence, not one for serious causal determinations.  Justice Stevens, and Professor Sanders, might have done better to have looked at what the FDA requires for health claims.  See, e.g., FDA, Guidance for industry evidence-based review system for the scientific evaluation of health claims (2009) (articulating an evidence-based approach). Justice Stevens’ argument fundamentally misconstrues the scientific enterprise of determining causation of health outcomes by reducing it to a precautionary enterprise of regulating possible harms.  Professor Sanders is unclear whether he is restating Justice Stevens’ view, or his own, when he writes:

“Chief Justice Rehnquist was wrong to show the flaws of individual bricks, because it is the wall as a whole that makes up the plaintiff’s case.74

Sanders at 157 (citing Stevens’ opinion in Joiner, 522 U.S. 136, 153n.5  (1997).  If this is Professor Sanders’ view, it is profoundly wrong.  Looking at the individual bricks is necessary to determine whether it can support the plaintiff’s case.  Of course, to the extent it was Justice Stevens’ view, it was a dissent, not a holding, and it was superseded by a statute when Rule 702 was revised in 2000.


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