Professor Aaron D. Twerski teaches torts and products liability at the Brooklyn Law School. Along with a graduating student, Lior Sapir, Twerski has published an article in which the authors mistakenly asseverate that “[t]his is not another article about Daubert.” Aaron D. Twerski & Lior Sapir, “Sufficiency of the Evidence Does Not Meet Daubert Standards: A Critique of the Green-Sanders Proposal,” 23 Widener L.J. 641, 641 (2014) [Twerski & Sapir].
A few other comments.
1. The title of the article. True, true, and immaterial. As Professor David Bernstein has pointed out many times, Daubert is no longer the law; Federal Rule of Evidence 702, a statute, is the law. Just as the original Rule 702 superseded Frye in 1975, a revised Rule 702, in 2000, superseded Daubert in 1975. See David E. Bernstein, “The Misbegotten Judicial Resistance to the Daubert Revolution,” 89 Notre Dame L. Rev. 27 (2013).
2. Twerski and Sapir have taken aim at a draft paper by Professors Green and Sanders, who also presented similar ideas at a workshop in March 2012, in Spain. The Green-Sanders manuscript is available on line. Michael D. Green & Joseph Sanders, “Admissibility Versus Sufficiency: Controlling the Quality of Expert Witness Testimony in the United States,” (March 5, 2012) <downloaded on March 25, 2012>. This article appears to have matured since spring 2012, but it has never progressed to parturition. Professor Green’s website suggests a mutated version is in the works: “The Daubert Sleight of Hand: Substituting Reliability, Methodology, and Reasoning for an Old Fashioned Sufficiency of the Evidence Test.”
Indeed, the draft paper is a worthwhile target. See “Admissibility versus Sufficiency of Expert Witness Evidence” (April 18, 2012). Green and Sanders pursue a reductionist approach to Rule 702, which is unfaithful to the letter and spirit of the law.
3. In their critique of Green and Sanders, Twerski and Sapir get some issues wrong. First they insist upon talking about Daubert criteria. The “criteria” were never really criteria, and as Bernstein’s scholarship establishes, it is time to move past Daubert.
4. Twerski and Sapir assert that Daubert imposes a substantial or heavy burden of proof upon the proponent of expert witness opinion testimony:
“The Daubert trilogy was intended to set a formidable standard for admissibility before one entered the thicket of evaluating whether it was sufficient to serve as grounds for recovery.”
Twerski & Sapir at 648.
Daubert instituted a “high threshold of reliability”.
Twerski & Sapir at 649.
“But, the message from the Daubert trilogy is unmistakable: a court must have a high degree of confidence in the integrity of scientific evidence before it qualifies for consideration in any formal test to be utilized in litigation.”
Twerski & Sapir at 650.
“The Daubert standard is anything but minimal.”
Twerski & Sapir at 651.
Twerski and Sapir never explain whence comes “high,” “formidable,” and “anything but minimal.” To be sure, the Supreme Court noted that “[s]ince Daubert . . . parties relying on expert evidence have had notice of the exacting standards of reliability such evidence must meet.” Weisgram v. Marley Co., 528 U.S. 440, 455 (2000) (emphasis added). An exacting standard, however, is not necessarily a heavy burden. It may be that the exacting standard is infrequently satisfied because the necessary evidence and inferences, of sufficiency quality and validity, are often missing. The truth is that science is often in the no-man’s land of indeterminate, inconclusive, and incomplete. Nevertheless, Twerski and Sapir play into the hands of the reductionist Green-Sanders’ thesis by talking about what appears to be a [heavy] burden of proof and the “weight of evidence” needed to sustain the burden.
5. Twerski and Sapir obviously recognize that reliability is different from sufficiency, but they miss the multi-dimensional aspect of expert witness opinion testimony. Consider their assertion that:
“[t]he Court of Appeals for the Eleventh Circuit in Joiner had not lost its senses when it relied on animal studies to prove that PCBs cause lung cancer. If the question was whether any evidence viewed in the light most favorable to plaintiff supported liability, the answer was probably yes.”
Twerski & Sapir at 649; see Joiner v. Gen. Electric Co., 78 F.3d 524, 532 (11th Cir. 1996) rev’d, 522 U.S. 136 (1997).
The imprecision in thinking about expert witness testimony obscures what happened in Joiner, and what must happen under the structure of the evidence statutes (or case law). The Court of Appeals never relied upon animal studies; nor did the district court below. Expert witnesses relied upon animal studies, and other studies, and then offered an opinion that these studies “prove” PCBs cause human lung cancer, and Mr. Joiner’s lung cancer in particular. Those opinions, which the Eleventh Circuit would have taken at face value, would be sufficient to support submitting the case to jury. Indeed, courts that evade the gatekeeping requirements of Rule 702 routinely tout the credentials of the expert witnesses, recite that they have used science in some sense, and that criticisms of their opinions “go to the weight not the admissibility” of the opinions. These are, of course, evasions used to dodge Daubert and Rule 702. They are evasions because the science recited is at a very high level of abstraction (“I relied upon epidemiology”), because credentials are irrelevant, and because “weight not the admissibility” is a conclusion not a reason.
Some of the issues obscured by the reductionist weight-of-the-evidence approach are the internal and external validity of the studies cited, whether the inferences drawn from the studies cited are valid and accurate, and whether the method of synthesizing conclusion from disparate studies is appropriate. These various aspects of an evidentiary display cannot be reduced to a unidimensional “weight.” Consider how many observational studies suggested, some would say demonstrated, that beta carotene supplements reduced the risk of lung cancer, only to be pushed aside by one or two randomized clinical trials.
6. Twerski and Sapir illustrate the crucial point that gatekeeping judges must press beyond the conclusory opinions by exploring the legal controversy over Parlodel and post-partum strokes. Twerski & Sapir at 652. Their exploration takes them into some of the same issues that confronted the Supreme Court in Joiner: extrapolations or “leaps of faith” between different indications, different species, different study outcomes, between surrogate end points and the end point of interest, between very high to relatively low therapeutic doses. Twerski and Sapir correctly discern that these various issues cannot be simply subsumed under weight or sufficiency.
7. Professors Green and Sanders have published a brief reply, in which they continue their “weight of the evidence” reductionist argument. Michael D. Green & Joseph Sanders, “In Defense of Sufficiency: A Reply to Professor Twerski and Mr. Sapir,” 23 Widener L.J. 663 (2014). Green and Sanders restate their position that courts can, should, and do sweep all the nuances of evidence and inference validity into a single metric – weight and sufficiency – to adjudicate so-called Daubert challenges. What Twerski and Sapir seem to have stumbled upon is that Green and Sanders are not engaged in a descriptive enterprise; they are prescribing a standard that abridges and distorts the law and best practice in order to ensure that dubious causal claims are submitted to the finder of fact.
