February 1995 No. 4
Assessing The Impact of the Daubert Decision*
Junk Science: A Turnaround in the Courts?
Readers who've been to law school may remember the chestnut known as the "Case of the Kettle." A man is charged with borrowing a kettle and breaking it. His reply is that, first, he never borrowed it; second, it was already broken when he borrowed it; third, it was intact when he returned it. The technique is called “arguing in the alternative."
These days we're reminded of the Case of the Kettle by the arguments put forth by some of our friends in the plaintiff s bar. One, in a recent New York Times oped, declared that, first, there was never any boom in litigation; second, the litigation boom has ended because judges and juries have accepted legal reformers' arguments, so that legislation on the subject would be redundant; and third, we must resist any legislation on the subject because it would plunge us back to the Dark Ages before the litigation boom.
We will pass over the first and third points in all mercy, but the second point is of some interest. Are the courts recognizing the excesses of recent years and trying to rein them in? If so, how successful are their efforts?
It's a big question, which we plan to look at in more detail in coming months, but one aspect of it keeps cropping up in the headlines: the turn of judicial sentiment against what our Peter Huber was one of the first to characterize as "junk science." In the following piece, Peter, with his usual pungency, reports on a powerful new opinion written by the Ninth Circuit's Judge Alex Kozinski.* Kozinski's panel dismissed the case of Daubert v. Merrell Dow, the same case that reached the U.S. Supreme Court in 1993 and prompted a landmark decision instructing lower courts to protect litigants, and themselves, from the introduction of mere speculation passing as science.
A pessimist might observe that one opinion like Kozinski's, for all its stirring language (and citations of Peter's work), will hardly be enough to shoo junk science from the courthouse door, given how much money is to be obtained by its use: just last year breastimplant manufacturers agreed to fork over $4 billion on claims that were soon demolished by carefully conducted medical studies. For that matter, Bendectin itself, despite its vindication, is still off the market.
Let us venture a prediction as to what the organized plaintiff's bar will say next on the subject of scientific evidence. On the one hand, it will complain that Kozinski's opinion went miles beyond what the Supreme Court intended in Daubert and should be disregarded by other courts. On the other, it will argue that decisions like Kozinski's make it completely unnecessary for Congress to lend judges a hand by giving them more powerful ways of excluding junk science, as one of the planks in the "Contract with America" Common Sense Legal Reform Act would do. That's "arguing in the alternative" again. And by the way, my client never touched the kettle.
* United States Court of Appeals for the Ninth Circuit (on remand from the United States Supreme Court). Opinion dated January 4, 1995, San Francisco, California; Judge Alex Kozinski.
Bringing Real Science Back into the Courtroom
When the Supreme Court decided its landmark junk science case in June 1993, lawyers all around claimed victory. On January 4, 1995, one client finally won for real—the defendant, Merrell Dow Pharmaceuticals. The losers were Jason Daubert, his family and, most especially, their contingency fee lawyers who claimed Jason suffered birth defects after his mother took the morning sickness drug Bendectin.
The opinion by Judge Alex Kozinski for a federal appellate court in California is probably the last word in this landmark case. And the case was not won by a lawyer, but by the great philosopher of science Karl Popper, who in the 1950s developed a seminal theory about the nature of science.
As Judge Kozinski dryly observed, the Food and Drug Administration, though "not known for its promiscuity in approving drugs," still approves Bendectin; "apart from the small but determined group of scientists testifying on behalf of the Bendectin plaintiffs . . . there doesn't appear to be a single scientist who has concluded that Bendectin causes limb reduction defects." Yet the drug has been embroiled in endless litigation ever since these scientistsforhire began claiming that Bendectin is like Thalidomide.
They never dared put it quite that strongly. Daubert's statistical experts would only say that "Bendectin could possibly have caused plaintiffs' injuries." A federal trial judge threw them out. The Supreme Court responded in 1993 with a sober discussion of when expert testimony is solid enough to present to a jury. Then it sent the case back to the lower courts.
The appellate court's opinion dissects the fringe epidemiology, animal studies, and chemicalstructure analysis offered by the plaintiffs. After a decade of litigation, Judge Kozinski notes, "the only review the plaintiffs' experts' work has received has been by judges and juries, and the only place their theories and studies have been published is in the pages of federal and state reporters. . . . [N]o one in the scientific community—except defendants' experts—has deemed these studies worthy of verification, refutation or even comment."
This alone was enough to disqualify much of what Daubert's experts offered. But their ostensibly scientific testimony had a more fundamental defect. "Scientific methodology," the Supreme Court had declared, "is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry. . . . The statements constituting a scientific explanation must be capable of empirical test. . . . The criterion of the scientific status of a theory is its falsifiability, or refutability, or testability." The Court was quoting secondary authorities here. The last sentence, from which the others all derived, was Karl Popper's.
This may seem pretty opaque. Chief Justice Rehnquist reacted tartly in his Daubert dissent. "I am at a loss to know what is meant when it is said that the scientific status of a theory depends on its 'falsifiability,"' he wrote. But Judge Kozinski nails Daubert's experts precisely because their claims were not "tested or testable." Their assertions took the form of "could possibly," not "did probably." They didn't quantify the hazard they claimed to have discovered. No matter how many users of Bendectin you study, these "experts" win always be able to say the risk lies just over your statistical horizon.
Real scientists put enough muscle in their conclusions to be proved wrong if in fact they are. Litigation scientists don't. Bendectin "could possibly" cause anything. The tooth fairy "could possibly" too.
In the world of entertainment, "could possibly" mush substitutes for real scientific expression all the time. But federal judges can do better, and now are required to. The federal rules of evidence, Judge Kozinski concludes, operate "to ensure that junk science is kept out of the federal courtroom."
In June 1993, Barry J. Nace, one of Daubert's lawyers and presidentelect of the Association of Trial Lawyers of America, announced that the Supreme Court's ruling "allows the jury to hear all relevant views." This statement about the law was at least concrete enough to be tested and falsified. On January 4, 1995, it was.
Nace was wrong about the science of Bendectin too, but in a different way. As the great, irascible physicist Wolfgang Pauli once remarked about a report he had read: "That paper isn't even good enough to be wrong." That's what Judge Kozinski concluded about Nace's nonscience, too. Karl Popper would be smiling.
Barry Nace isn't. He denounces the opinion as "the height of judicial arrogance," and says he'll appeal.
About the Authors
Walter Olson is a Senior Fellow at the Manhattan Institute. He is the author of THE LITIGATIONEXPLOSION: What Happened When America Unleashed The Lawsuit, published by Truman Talley BooksDutton in 1991, and currently available in a paperback edition by Plume for $13.00. He has written extensively on law and regulation and was the editor of New Directions in Liability Law, published by the Academy of Political Science in 1988, and Historical Roots of the Litigation Crisis, a symposium published in the Cardozo Law Review in 1989. His next book, to be published by The Free Press in 1996, will be on employment law.
Peter Huber is a Senior Fellow at the Manhattan Institute and the author of ORWELL'S REVENGE: The 1984 Palimpsest, published by The Free Press in 1994. His earlier books include LIABILITY: The Legal Revolution and Its Consequences, published by Basic Books in 1988, and GALILEO'S REVENGE: Junk Science in the Courtroom, published by Basic Books in 1991, both currently available in paperback. He edited, with Kenneth Foster and David Bernstein, PHANTOM RISK: Science Inference and the Law, published by MIT Press in 1993. Huber has written extensively for scientific and legal journals and is a contributor to Forbes magazine, where his column, "Insights: Science and Technology," is a regular feature.