Role of Scientific Method in Public Policy Analysis The Admissibility of Scientific Evidence & Expert Witnesses

Varying Roles of Expertise LegislationRegulationLitigation

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 …

Frye v. U.S. Facts: 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

Frye v. U.S. Frye general acceptance standard: ID witnesses’ expertise in particular field of science (education, experience, contribution) Determine whether expert’s methods, theories & conclusions satisfy general acceptance standard

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

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

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?

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

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

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

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

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

#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

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

#2: Varying Roles of Expertise LegislationRegulationLitigation

#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

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

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

Focci of Tort Reforms  Plaintiff  Injuries  Defendant  Duties  Counsel  Forum  Proofs

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