Basic Federal Evidentiary Jurisprudence after Daubert–the judge/court as gatekeeper to keep junk science out

I have pasted here below a book review I did for the Journal of the American Association of Physicians and Surgeons (JPANDS) on the jurisprudence of evidentiary admissibility decisions that follows on the Supreme Court opinion written by Justice Harry Blackmun in Daubert v Merrill Dow 509 U.S 579 (1993)–a case involving a claim that Bendectin, a very popular and widely used drug for nausea and vomiting in pregnancy, made by Merrill Dow, caused birth defects.

The Trial court in Daubert created the new jurisprudence by, on its initiative, applied a more stringent admissibility standard for scientific testimony and evidence and denied the Daubert plaintiff’s experts an opportunity to testify and make claims about the alleged teratogenic toxicity of Bendectin. The trial court ruled against admitting the evidence for jury consideration because the experts had cobbled together scientific claims, not published in the scientific literature, and the claims appeared to be as effort to make a case based on the ipse dixit statement opinions of the experts without demonstrating reliable scientific methods. The Daubert Plaintiffs were relying on the old “generally accepted” rule that allowed experts with proper credentials to say what they wanted without proving up their evidence of reliability or providing good arguments for complying with acceptable scientific practice.

At the intermediate appellate level the Federal Circuit reversed and restated the Frye case (1929) that allowed testimony that was presented by “generally acceptable” scientific authority.

So it went to the Supremes and Blackmun, who was general counsel for the Mayo clinic during his private practice career, wrote the opinion.

Daubert It changed the nature of science advocacy in Federal Courtrooms, and was even imitated by many States, even though judges have been running away from it ever since. I would add that in civil tort cases toxic tort cases Daubert is very important. HOWEVER, IN ADMINISTRATIVE LAW CASES, INVOLVING CHALLENGES TO AGENCIES AND APPLICATION OF THE ADMINISTRATIVE PROCEDURE ACT TO STOP AGENCY RULES OR PRESCRIPTIVE ACTIONS, DAUBERT HAS BEEN NEUTRALIZED BY THE CHEVRON JURISPRUDENCE ALLOWING FEDERAL AGENCIES GREAT LATITUDE AND DISCRETION–TODAY WE PAY THE PRICE FOR THAT CHEVRON NONSENSE WHICH VIOLATES THE CONSTITUTIONAL PROHIBITIONS INHERENT IN THE SEPARATION OF POWERS.

Please see the JunkScience archives on Daubert and Chevron jurisprudence if you really want to get into the weeds:

http://junkscience.com/?s=DAUBERT

http://junkscience.com/?s=Chevron+

In my opinion the best book written about Daubert and Science for a non legal audience appeared in 1997, 4 years after Daubert. Judging Science by Foster and Huber (MIT press 1997).

The best book for judges and lawyers is the Reference Manual on Scientific Evidence (National Academies Press 2011) authored and supervised by the Federal Judicial Center–the educational entity for Federal Judges.

Heres my book review of Judging Science and you can see it’s easy to sound smart if you are reviewing a book by smart authors.

Book Review
Judging Science: Scientific Knowledge and the Federal Courts

Foster and Peter W. Huber, 352 pp,
paperback, $32.00, ISBN-13 978-
0262561204, Cambridge, Mass., MIT
Press, 1997.

Judging Science concerns the implications
of the opinion of the U.S. Supreme Court in Daubert v Merrill Dow 509 U.S.
579 (1993), which changed the way science would be dealt with in U.S. courts
of law. In the case, the trial court granted
summary judgment and threw out the plaintiff’s expert testimony on the drug
Bendectin, made by Merrell Dow, which the plaintiff Daubert asserted caused his
birth defects. The trial court said the experts did not meet the standards for
good scientific testimony. The circuit court reversed the ruling
on appeal, holding that the old standard for scientific evidence admissibility
articulated in the case of Frye v. United States 293 F. 1013 (D.C. Cir. 1923), a less
stringent rule, allowed “generally accepted”scientific testimony. Then the U.S.
Supreme Court majority opinion, written by Justice Blackmun, affirmed the trial
court ruling, discarded the old
Frye rule, and substituted more rigorous tests for
admissibility of science testimony and evidence under the Federal Rules of
Evidence (1975).

Federal Rule of Evidence 702, Testimony by Experts, states: “If scientific,
technical, or other specialized knowledge will assist the Trier of Fact to understand
the evidence or to determine a fact in issue (Rule 104 test) a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto
in the form of an opinion or otherwise.”

Justice Blackmun gave great deference to Karl Popper, a strong advocate of deductive
processes of scientific inquiry that depend on verification, testing, and evidence. Popper
condemned the inductive scientific method, in which observations are used to develop
theories or rules, as uncertain and too easily influenced by bias. He asserted that if a
theory was not falsifiable—if it couldn’t be tested in a way that could prove it wrong—it
was not science.

Blackmun wrote that in applying Daubertthe judge must use four tests: (1)
whether the theory or technique can be and has been tested; (2) whether the
theory or technique has been subjected to peer review and publication (this test is
not dispositive, only additive); (3) whether
the technique or method has a known or potential rate of error; and (4) whether the
theory or technique is accepted within a relevant scientific community of scholars.

After a basic introduction to the scientific method and practice, the
authors discuss the legal concepts that surround what the authors call “fit,” but
what most people are familiar with as “material and relevant.” Science may be
reliable and correct, but may be immaterial or irrelevant because it doesn’t help
the fact finder determine the issues in the case. The applicability of evidence cannot
be ignored, but it is secondary or tertiary to reliability and credibility.

The authors discuss errors, fallacies, reliability, validity, and the process of peer
review. The final chapters focus on the social factors in scientific communities
and peer review, and how science can be misused to deceive or mislead. The book
cites original essays by many of the important figures in the philosophy and
the practice of science.

One example of Alvin Weinberg’s concept of trans-science, which is not
practically verifiable and may exceed the sensitivity of the instruments and methodology,
is epidemiology in the range below proof of effect, i.e. a relative risk of
less than 2. Another concept of transscience that is rhetorically in widespread
use is the challenge to prove no risk, to prove the negative. It is a nonscientific sort
of challenge, a rhetorical ploy, not science.

The authors explain how reliability and validity are not the same. Validity
errors due to confounders are the reason observational studies require effects of
100 percent. The authors list many confounders, including migrations or
maturation of the study group, attrition, selection, regression to the mean,
sequence of effects, and experimenter and subject biases. A measure of
reliability is the confidence interval. A confidence interval that includes 1.0
shows a null effect.

Other sources of error, confusion, and deception in research reports include:
signal (results) in the range of the noise (background natural variability); confirmation
bias or tunnel vision, often related to commitment to a result that involves a
political agenda; and reliance on authority or consensus.

The authors identify the following characteristics of sick science: (1) The
maximum effect is produced by a phenomenon of barely detectable intensity. (2)
Observations are made near the threshold of visibility of the eyes or instruments.
(3) There are claims of great accuracy (and significance). (4) Ad hoc excuses are used
to nullify any dissent or criticism. (5) The supporters rise and then fall.
Sick science creates the cargo cult syndrome—a pretense of scientific methodology
that has no substance.

Judging Science is an exceptional effort by extraordinary authors. It is an
excellent resource for the student of science and philosophy and legal analysis
of science, and anyone compelled to learn the intricacies of legal management
of scientific evidence and the theories of science that underlie any reasonable
discussion of scientific reliability and veracity.

John Dale Dunn MD JD
Brownwood, Texas

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