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Role of Scientific Method in Public Policy Analysis The Admissibility of Scientific Evidence & Expert Witnesses
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Varying Roles of Expertise LegislationRegulationLitigation
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Some Rules of Evidence Burden of proof & going forward Relevance (to proposition) Material (to issue at trial) Hearsay exclusion & exceptions Business records, admissions, excited/dying utterances, learned treatises …Business records, admissions, excited/dying utterances, learned treatises … Best Evidence Foundation: chain of custody Other issues: criminal vs. civil, demonstrative, judicial notice, impeachment, confrontation/cross-exam & impeachment, privelege …
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Frye v. U.S. Facts: 1923 2 nd degree murder defense offered expert to validate polygraph (blood pressure-type) to exonerate defendant Issue: What constitutes acceptable scientific methodology to support expert testimony? Holding: methodology underlying expert’s evidence must be sufficiently established to gain general acceptance in the particular field
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Frye v. U.S. Frye general acceptance standard: 1. 1. ID witnesses’ expertise in particular field of science (education, experience, contribution) 2. 2. Determine whether expert’s methods, theories & conclusions satisfy general acceptance standard
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Frye’s Implications Experts & scientific evidence excluded unless expert qualified & testimony satisfies general acceptance standard Consensus of scientific community required from peer review, pubs, criticism, replication & reliability Novel theories generally inadmissible Judges relieved of deep analysis Still valid standard in dozen states +/- & continuing role in ’90s Daubert trilogy
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Daubert v. Merrell Dow Pharma Facts: Admissibility of 8 experts re-analysis of epidemiological statistics as well as animal & toxicological studies linking Bendectin to birth defects Issue: Are un-published expert analyses admissible to show scientific causation? Holding: reversed & remanded Discussion: Frye rejected as sole admissibility standard
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Daubert v. Merrell Dow Pharma Discussion: Judges must serve as ad hoc admissibility reliability gatekeepers Is/can the science (be) tested? Subjected to peer review & publication What is known or potential error rate What is general acceptance (FRYE lives) in relevant scientific community?
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GE v. Joiner Facts: GE electrician claimed lung cancer resulted from jobsite PCB exposure Issue: Is there analytical gap? YES Holding: Expert’s conclusions & basis for judgment must flow rationally from purported methodology Discussion: Expert’s insistence of causation must be demonstrated with full explication of logic, premises, studies, links shown in studies: expert report susceptible to support, explanation & defense
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Carmichael v. Kumho Tire Facts: Kumho blewout on Ford mini-van causing overturn, death, injuries Issue: Tire failure analysis sufficiently scientific Holding: Trial judge excluded tire expert testimony Discussion: Daubert applies to all experts (technical, specialized knowledge) not just “scientists;” increases judge’s scrutiny of experts & methodologies; Daubert applies more flexibly – not checklist; appeal of trial judge allowance tested by “abuse of discretion” not “de novo” std
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Trilogy Observations Jury, not judge, must evaluate conflicting expert & scientific evidence Judge is gatekeeper on rigor, cross- exam, judge instr. & BofP also key Formal Daubert hearings not always necessary Kumho too difficult for judges to distinguish scientific from other technical disciplines
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Some key emerging expertises Statistics, multiple-regression Survey Research Estimation of economic damages Epidemiology Toxicology Engineering practice DNA Medical diagnosis & treatment Environmental & workplace exposure Employment issues
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(@ least) Three Challenges Dissemination of Tort databases ventilates experts’ views Expertise assumes varying roles in law & regulation Reform of tort/product liability/regulation could undercut many key
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#1: Dissemination National Tort Data Project NAS/NRC funded, field & empirical methodsNAS/NRC funded, field & empirical methods Database for defensive use by AGs, DOTsDatabase for defensive use by AGs, DOTs Traditionally rare & reputational: only secret files from insurance & class actionTraditionally rare & reputational: only secret files from insurance & class action Major push to profile expertsMajor push to profile experts Increasingly well-organized, exhaustiveIncreasingly well-organized, exhaustive Largely intended for risk mgt feedback Grave fears that plaintiff’s bar might access
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Dissemination Scrutiny of prior testimony arms X- exam to effectively depose, disparage Increases stakes of 1 st testimony Every negative X-exam impacts future fees Eventually IDs potentially adverse experts Reduces ranks of all expertsReduces ranks of all experts Isolates ideological foesIsolates ideological foes Polarizes experts, not unlike plaintiff- defense barPolarizes experts, not unlike plaintiff- defense bar
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#2: Varying Roles of Expertise LegislationRegulationLitigation
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#3: Reform Could Undercut Need for Expertises Continuing drive towards reform of tort, product liability & regulatory programs likely to reduce needs for well-paid experts (also: plaintiff’s bar, defense bar, judges, catastrophic insurance coverage) 80s tort crisis is an instructive history Deserves serious scholarly focus!Deserves serious scholarly focus! Competition lowered premiums, investment returns covered payouts until stk mkt diveCompetition lowered premiums, investment returns covered payouts until stk mkt dive Coverages w/drawnCoverages w/drawn
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Tort Law is a Pendulum 19 th Century: many limiting principles prevented liability Fellow servant, proximate cause, privityFellow servant, proximate cause, privity Post 1920 torts & product liability experienced steady expansion New liability theoriesNew liability theories New tortfeasor dutiesNew tortfeasor duties ID new risksID new risks
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More 20 th Century Expansion Recognize scientific causal links to injury New forms of injury Economic damagesEconomic damages Non-economic damagesNon-economic damages Economists forcing a merger?Economists forcing a merger? New theories of injury valuation Public opinion expanding acceptability
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Focci of Tort Reforms Plaintiff Injuries Defendant Duties Counsel Forum Proofs
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Future of Reform? Slow, pragmatic identification of liability risks & connection to a litigation process Significant federalism overtones Preemption: “It only takes 270!”Preemption: “It only takes 270!” Conservative S.Ct. states rightersConservative S.Ct. states righters Many reforms invalidated in 1990s Over 1/2 States Courts Invalidate Some ReformsOver 1/2 States Courts Invalidate Some Reforms State & Federal Constitutional Bases for Invalidation:State & Federal Constitutional Bases for Invalidation: Right to remedy, court open Due process, equal protection Most Vulnerable Reforms: Damage caps, statutes of repose, collateral source rule, specific industry exemptionsMost Vulnerable Reforms: Damage caps, statutes of repose, collateral source rule, specific industry exemptions
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