The Supreme Court’s Unsteady Gatekeeping Pre-Daubert

Some writers assert that the United States Supreme Court did not wade into the troubled waters of medical causation and expert witness testimony until it decided Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).  Actually, the Court swam in these stormy waters in admiralty and FELA cases, at least up through the 1950’s.

In 1953, Mr. Sentilles, a marine engineer, was thrown to the deck of his ship, and washed off deck, by a wave.  He became ill with tuberculosis, and he brought a person injury action (for “maintenance and cure”) against vessel owner.  Inter-Caribbean Shipping Corp. v. Sentilles, 256 F.2d 156 (5th Cir. 1958).  The vessel owner defended on the theory that the plaintiff’s diabetes pre-disposed him to TB, and that the plaintiffs’ expert witnesses were equivocal in their conclusions of causality or aggravation.  The jury nonetheless found for the plaintiff.

The judgment entered on a jury verdict for the seaman was reversed by the Fifth Circuit, which found the plaintiffs’ expert witnesses’ testimony inadequate to support submission of the case to the jury:

“The rule as to the medical testimony respecting causation which is required to take a case to a jury has been thus stated:

It appears to be well settled that medical testimony as to the possibility of a causal relation between a given accident or injury and the subsequent death or impaired physical or mental condition of the person injured is not sufficient, standing alone, to establish such relation. By testimony as to possibility is meant testimony in which the witness asserts that the accident or injury `might have’, `may have’, or `could have’ caused, or `possibly did’ cause the subsequent physical condition or death or that a given physical condition (or death) `might have,’ `may have,’ or `could have’ resulted or `possibly did’ result from a previous accident or injury — testimony, that is, which is confined to words indicating the possibility or chance of the existence of the causal relation in question and does not include words indicating the probability or likelihood of its existence.”

Id. (internal citations omitted).

The Supreme Court granted a writ of certiorari, heard argument, and reversed the Court of Appeals.  Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107 (1959).  In announcing the Court’s opinion, Justice Brennan voiced the remarkable doctrine that the jury could find reasonable probability when the expert witnesses could not:

“The jury’s power to draw the inference that the aggravation of petitioner’s tubercular condition, evident so shortly after the accident, was in fact caused by that accident, was not impaired by the failure of any medical witness to testify that it was in fact the cause.  Neither can it be impaired by the lack of medical unanimity as to the respective likelihood of the potential causes of the aggravation, or by the fact that other potential causes of the aggravation existed and were not conclusively negated by the proofs.  The matter does not turn on the use a of particular form of words by the physicians in giving their testimony.  The members of the jury, not the medical witnesses, were sworn to make a legal determination of the question of causation.  They were entitled to take all the circumstances, including the medical testimony into consideration.  Though this case involves a medical issue, it is no exception to the admonition that, ‘It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences.  The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. * * * The very essence of its function is to select from conflicting inferences and conclusions that which it considers most reasonable.  * * * Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.’”

Id. at 109-10.  Justice Brennan thus ignored equally venerable precedent that juries are not free to speculate, and he failed to consider how the jury in this case could reach a determination in the face of conflicting evidence, and without ruling out alternative causes.

Sentilles was decided before the enactment of the Federal Rules of Evidence, and there was no challenge to the plaintiff’s expert witnesses’ testimony under the Frye doctrine.  Another crucial difference, of course, is that Sentilles was an isolated case, not likely to recur frequently in the federal courts.  With the rise of product liability law, and the emergence of epidemiology as a basis for inferring causality, the federal courts would soon see mass exposure situations resulting in mass torts.  Dubious expert witness testimony resulting in dubious judgments of causation would attain much greater notoriety, for the expert witnesses, for the trial bar, and for the courts that tolerated the results.

 

 

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