Expert Witnessing

Explaining and Understanding Science

Carl Meyer

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000144314
• Edition: 1
• Topic: Derecho
• Subtopic: Ciencias forenses

Communication problems between science and the courts are widely deplored and sometimes exploited by a variety of groups. The U.S. Supreme Court has twice tightened the law of evidence to control the flow of information, but amazingly little has been written to analyze the nature of the problem and reduce the barriers. Expert Witnesses: Explaining and Understanding Science results from the first-hand experience of the contributors-who include scientists, expert witnesses, litigators, and a judge-that the cultural and interdisciplinary communications barriers between science and the law can be greatly reduced to everybody's advantage if the parties understand and respect each other's needs and positions.

1 Science, Medicine and the U.S. Common Law Courts

Carl Meyer

CONTENTS

Introduction

A Brief Historic Perspective

What Triggered the Daubert Decision?

What Makes the Daubert Decision Unusual?

What Judges, Scientists, Engineers, Physicians and Other Experts Should Know About Each Other

What Makes an Expert “Scientific?”

Science, Law, Politics and the Public Interest

Science in the Courtroom Arena

What Determines Whether Evidence is Admissible?

What Type of Testimony is Permitted?

When is Science Respected in Court, and When is it Rejected?

The Role of Authority

Experts Have to Communicate with Different Audiences

Communications with Attorneys for Whom the Expert Testifies

Communications with Fellow Experts and Opposing Experts

The Expert Deposition

Pretrial Hearings Before the Judge

The Role of Evidence Rules

Testimony Before the Jurors

Conclusions

INTRODUCTION

Two recent U.S. Supreme Court decisions in Daubert v. Merrell Dow Pharmaceutical, Inc.¹ and General Electric v. Joiner² have given federal trial judges the power to determine the reliability of scientific opinions and have strengthened their discretion as gatekeepers of scientific evidence.³ The Federal Judicial Center has provided a reference manual to assist trial judges with the implementation.⁴

The stated purpose of these cases is clear and laudable – namely, to make it harder for forensic experts to present pseudo-scientific opinions to juries. The unstated purpose is more controversial – namely to make it harder for plaintiffs to win. The Daubert criteria are effective in achieving the latter, but the conflict between the two goals makes it difficult for trial judges to justify their decisions in terms of the first. Accordingly, the application of Daubert has been inconsistent, and the federal appellate circuits have been almost evenly split on where the border lies between scientific and non-scientific experts, whether Daubert applies to medical experts,⁵ and whether clinical physicians can be evaluated with the help of the Daubert criteria. The U.S. Supreme Court has granted certiorari to resolve this matter.⁶ In a parallel move, the National Conference of Commissioners on Uniform State Laws (NCCUSL) has submitted a proposed, revised version of Federal Rule of Evidence 702 to the federal judicial council,⁷ but it will likely take several years before a new rule has been finalized and can be uniformly applied. In the meantime, the admissibility of scientific and other expert evidence will not be fully predictable. This uncertainty threatens an important purpose of law, namely, toS provide a predictable outcome.

It is now more important than ever that judges, experts and litigators better understand the strengths and limits of their own and each other’s fields.

A BRIEF HISTORIC PERSPECTIVE

The first documented forensic expert was Antistius. He was asked to examine the corpse of Julius Caesar to determine the cause of his death and opined that only one of the 24 sword wounds was deadly, namely the one perforating his thorax.⁸ Experts have been used in English courts since the 14th century, and in the common law courts of North America for more than two hundred years.^9,10

The relationship between scientists and lawyers has always been uneasy, and scientific expert testimony has long been a thorn in the side of the courts, because experts are not only allowed to explain fact, but to express opinions, even when they concern the ultimate issues at trial. Many litigators and judges have long complained that some experienced expert witnesses have shamelessly abused this power. In fact, Wigmore, the father of much of our evidentiary law, is quoted as stating in the early 1920s that the admission of expert opinions did more than any other rule of procedure to turn trials into a state of legalized gambling.¹¹ However, the nature of frictions has changed substantially.

Two hundred years ago it was still possible for an educated person to gain a satisfactory overview of the cultural world of his own society. Since the dawn of modern chemistry and physics, at the end of the 18th century, the amount of knowledge and the sophistication of tools have increasingly forced scientists to specialize and choose subfields of science, such as chemistry, or physics or biology. The scientific world is now so large that despite the intimate international contact among specialist groups, it is no longer feasible for a university professor or a head of an industrial laboratory to keep fully abreast in all subfields of his own academic specialty. Since the middle of the 20th century the rapid progress in the sciences has led to the proliferation of an increasing number of subspecialties which have only partly clustered into new interdisciplinary fields, such as the health sciences, the environmental sciences and science policy. Furthermore, in recent years, much of the research initiative has shifted back to industry, where public access is restricted for proprietary reasons.

Despite the tremendous scientific and social changes that have altered the practice of science, professionals still depend on close and regular personal consultation with their peers, to whose opinion they pay deference.

The same is true in the health care professions,^12,13 but progress has been slower. While fifty years ago, medicine was still primarily an art rather than a science, medicine is now interlinked with a plethora of technical and scientific occupations. The proliferation of information and specialties has become such that large health care providers now employ specialists in primary care, and farm out patients for further specialized treatment. In fact, some specialties have become so compartmentalized that surgeons, chemotherapists and radiation specialists no longer feel comfortable weighing the advantages of competing treatment modalities for certain types of diseases, such as cancer of the uterus or prostate gland.^14,15

Furthermore, even though clinical training increasingly adopts international standards, the practicing physician has become so overburdened with paper work and information about new treatment modalities that he defers to the authority of oral, local peer consensus to make treatment decisions.

Another complicating factor is that clinicians are licensed by the State, and are subject to the jurisdiction of the State Board of Medical Examiners, and are disciplined if they do not follow the local standard of care. The difference between local standards of care is often substantial, because the State Boards of Medical Examiners belong to a privately operated Federation¹⁶ that jealously promotes the independence of these State Agencies, and there is no formal mechanism for coordinating the standard of care between the local clinical community, academic medicine, the State medical licensing board and the American Medical Associations. A similar situation also exists in the other health care professions,¹⁷ that are regulated by virtually autonomous state licensing boards whose members are usually appointed by the state governor.

In law the trend has been different. While scientific and medical research are truly international, law has retained its national origin. Attempts to unify the common law of North America and Great Britain with the civil law of continental Europe move slowly, and even though the European Union has harmonized a substantial part of its laws, the legislative trend in the U.S. has been towards increased delegation of legislative and regulatory power to State and local jurisdictions. The trend has not only affected procedural matters, which have proliferated to such an extent that many local courts, and even individual departments, set their own procedural rules, but also affects many important substantive matters, such as whether certain crimes should be punished with the death penalty, and whether the death penalty will be enforced.

What triggered the Daubert decision

The current attitude toward expert testimony reflects the uncertainty that has been created by the rapid implementation of progress in science and technology. The U.S. Supreme Court decisions in Joiner and Daubert reflect the efforts of industry to change public policy and reduce the liability of manufacturers for defective products. This battle is being conducted in the media, the legislatures, the public arena and the courts, and has already significantly reduced the consumer rights that were promulgated during the more prosperous post-World War II period. This backlash is partly due to economic forces and partly due to the unfulfilled and exaggerated promise that science, if lavishly funded, would rapidly produce cures for all types of cancer and other diseases. This uncertainty is being further fueled by sensationalism in the media, especially television, which currently selects news reports primarily on the basis of their entertainment value,¹⁸ rather than their accuracy¹⁹ or relevancy²⁰ to the public.

Furthermore, many of the tensions between science and the courts are due to tensions between science and the underlying legislation or regulation.²¹

Among the factors that shape current changes are:

• Experts occupy an unique position among witnesses, because the Rules of Evidence allow experts to interpret data and express opinions, even if these opinions address the ultimate issues that are in dispute.

• Science has occupied a unique position in modern society in that it is embraced as a point of reference in many areas of activity which are not themselves scientific. The power of science can be compared to that of the medieval church,²² because many of those who now invoke the power of science, including most politicians, do not understand science, but call upon it as a matter of faith. Many believe that science has become too powerful, and blame science, scientists and experts for problems that have nothing or little to do with science.

• The overwhelming majority of legislators, and the public, including business leaders, lack the mathematical and scientific foundation that is necessary to recognize the difference between science and pseudo-science.

• Business leaders, the chemical industry and many manufacturers feel that environmental law and product liability law have given consumers too much power and have unduly restricted industry’s freedom. Some would like to return to the principle of “caveat emptor,” i.e., consumers should be responsible for the products they use.

• While science, medicine and law depend on each other, because their issues frequently overlap,²³ each of these fields obeys different laws and has different goals. Each of these fields has areas in which it commands priority over the others. This leads to a power struggle.

• Law, science and medicine are large and increasingly complex fields that not only require extensive education and training but extensive practical experience. Even some of the most outstanding attorneys are functionally illiterate in medicine and law,²⁴ and most scientists and physicians are functionally illiterate in law. This leads to communication problems.

While most litigators and judges readily admit that they lack the basic scientific training necessary to decide technical issues that come before them,²⁵ many judges do not recognize it when decisions involve scientific issues.

• Considering the differential skills and conflicting cultures, it is not surprising that lawyers, scientists and physicians do not feel comfortable when dealing with each other.²⁶

• Communication between science and law does not take place in a vacuum, but is influenced and moderated by vested interest groups, such as trade associa...

Table of contents

• Cover
• Title Page
• Copyright Page
• Preface
• Biographies
• Table of Contents
• 1. Science, Medicine and the U.S. Common Law Courts
• 2. Are Jurors Smart Enough to Understand Scientific Evidence?
• 3. The Fundamental Differences Between Science and Law
• 4. The End of Splendid Isolation: Tensions Between Science and Clinical Practice
• 5. Expert Testimony Involving Chemists and Chemistry
• 6. The Role of Experts in German Environmental Law
• 7. Distinguishing Good Science, Bad Science and Junk Science
• 8. The Five Dimensions of Scientific Testimony
• 9. Presenting Sophisticated Scientific Evidence Persuasively: The Role of the Scientific Expert and the Attorney at Trial
• 10. Forensic Techniques for Establishing the Origin and Timing of a Contaminant Release
• 11. Using Epidemiology to Explain Disease Causation to Judges and Juries
• 12. Medical and Scientific Evidence of Causation: Guidelines for Evaluating Medical Opinion Evidence
• 13. Explaining Toxic Chemical Risk in the Courtroom – Authority, Storytelling, and Science
• 14. Science in the Patent Infringement Decision-Making Process: Problems and Proposed Reforms
• Author Index
• Subject Index
• Case Index