Fw: Courting Reliable Science

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----- Original Message ----- From: Kathi

Sent: Monday, August 05, 2002 1:03 PM

Subject: Courting Reliable Science

Courting Reliable Science (Review of an article in Science News, Vol 153, page 249) By C. Soderberg, RPR, STAR President Complexity of science and scientific methods and variability threaten to unravel the sanctified way courts have handled cases since the birth of America. Indeed, juries of our peers, and sometimes judges, are simply unqualified to render informed opinions on cases involving scientifically and medically complicated testimony. Cases like silicone gel breast implants, asbestos, toxic shock syndrome, Agent Orange, lead poisoning, tobacco, blood evidence—and the impending fenphen—where even well-qualified experts can and often do disagree, are examples on point. Such so-called toxic torts now threaten the integrity of our legal system. Not only is evidence in these cases difficult to understand, but it is exacerbated by the increasingly scientifically illiterate general population of America. Today, high school education turns out citizens without the most basic knowledge of science, biology, chemistry and statistics. Our children don’t read a daily newspaper and prefer to learn and read about rock and movie stars rather than the exciting frontiers of science and medicine. Their interest in space rests on dubious UFO kidnappings, and they can’t balance a checkbook, much less understand statistical analysis and its pitfalls. Some lawyers have seized upon this scientific illiteracy and manipulate well-meaning and often thoughtful juries with scurrilous pseudoexperts and suspect science for the benefit of their most endangered clients. Blood evidence and the science behind it bedazzle lawyers and juries alike. In the case of Agent Orange and Gulf War Syndrome, the entire nation becomes embroiled and embittered because the medical and scientific evidence is either misunderstood or twisted beyond recognition to suit plaintiffs’ purposes. In the past, science and the courts enjoyed a better relationship because toxic tort cases usually arose only after a body of solid scientific evidence had accumulated. Asbestos cases and those involving the Dalkon Shield were brought only after scientific studies demonstrated the clear hazards. But the sequence of events has reversed in the last two decades, making adjudication more difficult. High-profile defendants with deep pockets motivate cases being filed before the science is clearly established. Today, however, learned judges on the highest benches are recognizing their own difficulties with forensic and statistical evidence and are asking for help. In Alabama, Judge Sam C. Pointer, Jr., has appointed a panel of four independent scientists—an epidemiologist, an immunologist, a rheumatologist and a toxicologist—to examine the available evidence in a silicone breast implant case and assess the state of the science and validity of dissenting opinions. Justice G. Breyer of the U.S. Supreme Court even wrote a concurring opinion supporting the use of such expert advisory panels in General Electric Co. v. Joiner. In 1993, the U.S. Supreme Court held that judges must assess whether the reasoning or methodology underlying any proposed testimony is scientifically reliable and relevant (Daubert v. Merrell Dow Pharmaceuticals, Inc.) In a recent Philadelphia convention, the American Association for the Advancement of Science (AAAS) convened a session entitled "Disorder in the Courts." Joe S. Cecil, a lawyer and psychologist who conducts research for the Federal Judicial Center in Washington, D.C., told AAAS members, "The information the courts must consider is so inherently complex that even the best efforts by skilled advocates to educate the court often fall short of the mark." Identifying appropriate impartial experts remains a hurdle. Panels of special masters have been appointed to simply identify neutral experts, and some judges have relied on their own relatives, who just happened to be noted scientists. The AAAS and the American Bar Association have convened a joint committee called the National Conference of Lawyers and Scientists. That committee has proposed a five-year demonstration project to help courts identify appropriate scientists and engineers to serve as court-appointed experts. Funding sources are scarce, butJustice Breyer’s opinion in Joiner has raised the profile of this issue, and the project hopes to be underway soon. As you might suspect, the idea of court-appointed experts does not get a warm welcome from many lawyers. At the Philadelphia AAAS conference, some lawyers pointed out that even independent experts have biases, and they have tremendous power over juries. However, Cecil noted, "Experts are frequently appointed where the adversarial process has failed to provide information that’s necessary for a reasoned and principled resolution of the dispute. In those instances, it’s not surprising that a court-appointed expert would be influential." It is clear that the trial record in these cases will be an essential element for future decisions. Court reporters today often must become semi-experts in their own right in order to provide transcripts that reflect not only the facts but the science behind them. As such, reporters are an integral element in the forces at work in science and technology well beyond our stenotypes and computer systems. We work in interesting times and cases! http://www.staronline.org/newssummer98/courting.htm