Scientists Talk to Judges: Reflections on Daubert V. Merrell Dow

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. __, 125 L.Ed. 2d 469 (1993).

In this article, we address the arguments presented by scientists, doctors, and their representatives and organizations. The business community was also heavily involved in the litigation. Trade groups such as the Pharmaceutical Manufacturers' Association, the National Association of Manufacturers, The Chemical Manufacturers' Association, insurance industry groups, the Chamber of Commerce, the trial lawyers's association, and others expressed arguments reflecting their institutional interests in tort litigation of this sort. The United States Department of Justice and a group of law professors also filed briefs in the case.

727 F. Supp. 570, 572 (quoting United States v. Kilgus, 571 F.2d 508, 510 (9th Cir. 1978).) Because there was no trial, the factual record in the Supreme Court was extremely limited.

This rule is derived from Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), in which a prosecutor in a criminal case sought to introduce scientific testimony about a rudimentary type of lie detector test. Evidence used to obtain a conviction must, of course, be highly reliable, since potential loss of liberty is involved.

125 L.Ed. 2d at 484.

Id. at 485.

Sanders Joseph , The Bendectin Litigation: A Case Study in the Life Cycle of Mass Torts, 43 Hastings L. J. 301 (1992).

Green Michael D. , “Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent Orange and Bendectin Litigation,” 86 Northwestern L. Rev. 643 (1992).

Compare Lynch v. Merrell-National Laboratories, 830 F.2d 1190 (1st Cir. 1987) and Richardson v. Richardson-Merrell, 857 F.2d 823 (D.C.Cir. 1988), cert, denied, 493 U.S. 882 (1989) with Brock v. Merrell Dow Pharmaceuticals, 874 F.2d 307, modified, 884 F.2d 166 (5th Cir. 1989), cert, denied, 494 U.S. 1046 (1990). And see DeLuca v. Merrell Dow Pharmaceuticals, 911 F.2d 941 (3d Cir. 1990)(expert testimony admissible; sufficiency to be determined on remand); Turpin v. Merrell Dow Pharmaceuticals, 959 F.2d 1349 (6th Cir.), cert, denied, 113 S.Ct. 84 (1992)(evidence insufficient to establish causation); Wilson v. Merrell Dow Pharmaceuticals, 893 F.2d 1149 (10th Cir. 1990)(summary judgment inappropriate); In re Richardson-Merrell, Inc. “Bendectin” Products Liability Litigation, 857 F.2d 290 (6th Cir. 1988), cert, denied, 488 U.S. 1006 (1989)(jury verdict for defendant after full trial); In re Bendectin Products Liability Litigation, 732 F.Supp 744 (E.D.Mich 1990)(denying defendant's motion for summary judgment); Oxendine v. Merrell Dow Pharmaceuticals, 506 A.2d 1100 (D.C. 1986) (jury verdict in plaintiff's favor reinstated by appellate court).

For example, the brief of Bloembergen , states: “The issue in this case is quite simply whether the law should impose liability on the basis of testimony that states a conclusion on a scientific subject that is based on methodology and principles that are not generally accepted by other scientists …” (p. 22) The question before the Court, however, addresses only the kind of expert evidence that is admissible. Even if the plaintiffs' evidence were admitted, that would not ensure a judgment against the company, as evidenced by other cases in which the evidence, or similar types, were introduced and the plaintiffs still did not prevail. In addition to admissibility, the outcome depends on numerous other things, including credibility, sufficiency of evidence to meet the burden of proof (more probable than not), etc.

The Commission, an independent, bipartisan body, was established in 1988 to examine and recommend improvements in the mechanisms by which government and the judiciary incorporate scientific and technological knowledge into policy and decision making.

Other parties to the brief were Devra Lee Davis, Marvin S. Legator, Donald R. Mattison, Program on Gender, Science and Law of Columbia University School of Public Health, Allan Rosenfield, and Ellen K. Silbergeld.

The scientists were, in addition to Ronald Bayer, Stephen Jay Gould, Gerald Holton, Peter Infante, Philip Landrigan, Everett Mendelsohn, Robert Morris, Herbert Needleman, Dorothy Nelkin, William Nicholson, Kathleen Joy Propert and David Rosner.

Other parties to the brief were Hackett Edward J. Ozonoff David Michael Clapp Richard W. .

Chubin Daryl E. and Hackett Edward J. , Peerless Science: Peer Review and U.S. Science Policy (1990).

Other parties to the brief were Noell Weiss, Robins James Neutra Raymond , and Stellman Steven .

This expresses a policy judgment that the risk of non-recovery in a meritorious case that can be proved only through admission of unpublished data is less severe, less likely, or less important than the risks associated with admission of evidence that may be flawed.

The AAAS stated that it had preferred to file a neutral brief, in support of neither side, but had been unable to meet the time limits to do so. “Supreme Court to Weigh Science,” Science 259: 588–90 (Jan. 29, 1993).

The American Medical Association/Specialty Society Medical Liability Project and 15 national medical specialty societies joined the brief “to present the views of organized medicine on issues related to medical professional liability.” (p. 2)

Bloembergen , filed in response to the brief filed by Bayer , and Alvin Feinstein filed a brief in reply to Rothman .

See, for example, Cook 1993. “Should Unpublished Data Be Included in Meta-analyses? Current Convictions and Controversies.” JAMA 269(21): 2749–2753, and Mills J.L. . 1993. “Data Torturing.” New Eng. J. Med. 329(16): 1196–99. Most amici concede that meta-analysis is not per se “unscientific,” but that its validity depends on how it is performed. Because there is no discussion of specific flaws or deficiencies in the methodology employed by the experts in this case, the disagreement often appears to relate more to the results than the methods by which they were obtained.

125 L.Ed.2d at 476. The claim that “junk science” pervades the system see, Galileo's Revenge: Junk Science in the Courtroom (1991), has been disuted. See Chesebro , “Galileo's Retort: Peter Huber's Junk Scholarship,” 42 Am. U. L. Rev. 1637 (1993). 23. The amici stressed the need for scientific evidence to be valid and reliable. This is essentially what lawyers mean when they refer to credibility. Scientific evidence is only credible if it is valid and reliable. 24. 125 L.Ed.2d at 484.

Questions raised in the course of litigation and congressional inquiries stimulated research into the effects of exposure to Agent Orange. Five such studies and an Editorial were reported in a single issue of Environmental Research in 1988. See, for example, Stellman Stellman and Sommer . 1988. Health and Reproductive Outcomes among American Legionnaires in Relation to Combat and Herbicide Exposures in Vietnam. Envir. Res. 47: 150–174, and Gochfield . 1988. Editorial: New Light on the Health of Vietnam Veterans. Envir. Res. 47: 109–111.

125 L.Ed.2d at 482.

Unless and until there is a uniform system of compensation or coverage for serious injuries, injured individuals will turn to the tort law system, and the stakes in the outcome of personal injury cases will remain high.

Daubert v. Merrell Dow, First Amended Complaint, pp. 20–21.

There have been other attempts to grapple with proof of causation when standard analysis has failed to achieve equitable results. For example, the “enterprise liability” theory has been applied in cases in which women sued for injuries resulting from their mothers' exposure to diethylstilbestrol (DES) during pregnancy. See Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487 (1989). In such cases, the fact that all manufacturers of a defective product profitted from its sales, and that plaintiffs often could not identify the particular manufacturer whose product caused his/her injury, justified the imposition of liability based on the defendant's share of the market for the product.

Conversely, proof of causation standing alone would ordinarily be insufficient to establish liability if the defendant's conduct was blameless or irreproachable, the product is socially necessary or useful and could not be manufactured more safely, and adequate warnings were provided as to all foreseeable risks.