Professor Haack is a Professor of philosophy and of law, at the University of Miami, Florida. She has written widely on the philosophy of science, in the spirit of pragmatism and C.S. Peirce. Much of what she has written has been a useful corrective to formalistic writings on “the scientific method,” and are worthy of study by lawyers interested in the intersection of science and the law. We lawyers need to develop a better (more accurate, both in explaining and predicting) theory of what science is to better accommodate our procedural rules to scientific inquiry. Haack’s writings on science, are a helpful corrective.
A recent article by Professor Haack, provides a helpful précis of her views on science in the courtroom, but also reveals robust biases and prejudices that should raise red flags about her objectivity in commenting on the legal process. Susan Haack, “Irreconcilable Differences? The Troubled Marriage of Science and Law,” 72 Law & Contemporary Problems 1 (2009).
Haack’s paper grew out of a presentation at the Fourth Coronado Conference, organized by SKAPP (The Project on Scientific Knowledge and Public Policy). Haack provides no information about the provenance of SKAPP, and the funding sources for SKAPP have been suppressed by its principals. At the time of the Conference, SKAPP was headed by Dr David Michaels, who was a hired expert witness for plaintiffs’ counsel in tort litigation. Dr Michaels is now the head of OSHA. Michaels founded SKAPP with funding by plaintiffs’ counsel from monies left over from the silicone gel breast implant litigation.
Ironically, the litigation shut down by Daubert has given rise to enough “left over” walking-around money to fund anti-Daubert writings and activities. As in most multi-district litigations, the plaintiffs’ counsel set up a common benefit fund, which received a fixed percentage of every settlement, ostensibly to cover the costs of developing the plaintiffs’ case against the defendants. Perversely, plaintiffs’ counsel have sufficient money on their hands, years after the silicone litigation is over, to fund conferences that help develop their case against the sort of gatekeeping that shut down their litigation machine. People who have taken SKAPP money might ask why the money has not been distributed to claimants.
SKAPP’s hostility to expert witness gatekeeping is fairly obvious even if it had not been funded by the lawyers who sponsored such dubious evidence in the implant litigation. See SKAPP A LOT (posted April 30, 2010). I am not suggesting that Haack’s paper was slanted to please the behind-the-scenes financial sponsors of the Coronado Conference. I am, however, suggesting that the money went to SKAPP because of its ideological proclivities, and that Haack may well have been selected, in part, because of her anti-industry views. The drumbeat for transparency and disclosures from authors affiliated with industry sounds out for transparency and disclosures from authors who want to speak out against that industry. One could only imagine the hue and cry if a scholarly conference had been funded by an organization that had in turn been set up by, say, the tobacco industry.
In keeping with SKAPP’s priorities, Haack does not like the Daubert decision or its incorporation into statutory law by Federal Rule of Evidence 702. Haack is critical of courts for excluding expert witnesses from testifying. She anguishes for witnesses who have been “dauberted out,” and warns us that the consequences for such witnesses can be serious, and even disasterous. Id. at 7 & n.48. There is no such sympathy for the victims of unreliable expert witness testimony.
Haack sets out to characterize the differences between the scientific and legal enterprises, which make for a troubled “marriage.” The sexual relational metaphor is Haack’s, and it fails. Although Haack offers some important insights into science and scientific methodology, there are some significant problems, especially with her amateur marriage counseling.
Haack identifies six “irreconcilable differences” in a “not-so-tidy list.” Id. at 15 – 21. The differences ultimately, however, prove more insubstantial than Haack claims.
(i) “Because its business is to resolve disputed issues, the law very often calls on those fields of science where the pressure of commercial interest is most severe.” Id. at 15.
True that, but Haack illustrates the pressure only with examples of industries that conduct research “for marketing purposes” or “with an eye to protecting itself against litigation.” Id. Haack, for instance, gives an example of this difference in the form of Merck’s clinical trials of Vioxx. Surely anyone familiar with the landscape of recent American tort law might think of examples from the claimants’ side. The breast implant litigation spawned fraudulent studies on immunogenicity of silicone, by plaintiffs’ expert witnesses, who hoped to commercialize test kits for “silicone sensitivity.” Fenfluramine litigation showcased collateral litigation for fraud by plaintiffs’ counsel. Silica litigation, based upon dubious medical screenings, resulted in fraudulent filings supported by fraudulent expert witness reports. It would not have been difficult for Haack to find some examples of not just pressure, but criminal malfeasance, on the plaintiffs’ side of litigation, to illustrate where the “commercial interest is most severe.” Perhaps Haack understood that the organizers of SKAPP wanted to keep the focus on industry.
(ii) “Because the legal system aspires to resolve disputes promptly, the scientific questions to which it seeks answers will often be those for which the evidence is not yet in. Id. at 16.
This difference between science and law is real, although scientists themselves often overstate the certainty of their conclusions for which the evidence is not yet sufficiently complete. This is hardly the stuff of an “irreconcilable difference,” because science, as Haack herself acknowledges, provides the reconciliation:
“Moreover, at any time there are many scientific questions to which there is no warranted answer, and to which scientists can only say, ‘at the moment, we just don’t know; we’re working on it, but we can’t tell you when we will have it figured out.’”
Id. at 12. There are times that the law must await an answer as well. Expert witnesses are under no compulsion to offer an opinion that is not ready to be couched as a scientific conclusion.
(iii) “Because of its case-specificity, the legal system often demands answers of a kind science is not well-equipped to supply; for related reasons, the legal system constitutes virtually the entire market for certain fields of forensic science (or quasi-science), and for certain psychiatric specialties.” Id. at 16.
Although Haack’s characterization of the legal system’s demands is correct, she fails to explain why the legal system should countenance pseudo-science simply because real science is silent. In looking at the Joiner litigation, which of course ended in the United States Supreme Court, Haack complains, no – whines, that specific causation of Mr. Joiner’s lung cancer was “an almost impossibly difficult question.” Id. at 16, discussing General Elec. Co. v. Joiner, 522 U.S. 136, 139 – 40 (1997). If so, then why should we allow a jury to speculate upon what is essentially a scientific issue? Such speculative judgments are what led to the felt need for gatekeeping in the first place.
Haack goes on to complain further that the toxicity of PCB is “well-establish.” Toxicity for what end point? The Joiner case, however, involved challenges to the general causation question of lung cancer, on which the “well-established” toxicity of PCBs was quite irrelevant. Good grief, water and oxygen are toxic at sufficiently large doses, but that does not mean we can attribute all diseases to them.
(to be continued)
