Frederick Leatherman Law Blog

Junk science and the charlatans for sale who rely on it while masquerading as objective experts above the fray of litigation constitute a serious and continuing problem to the fair administration of justice in our legal system.

The Federal Rules of Evidence (FRE) distinguish between ordinary witnesses and expert witnesses. With a few exceptions, such as whether a person appeared to be intoxicated or how fast someone was driving, ordinary witnesses are supposed to restrict their testimony to facts they perceive through their five senses. Experts are permitted to express opinions that are typically expressed to a “reasonable scientific (or medical) certainty.” A major part of the problem for indigent and poor plaintiffs is lack of sufficient funds to hire sufficiently qualified experts. Plaintiffs personal injury lawyers usually advance the costs of such witnesses and reimburse themselves out of a favorable money judgment. In practice, this means that they will not agree to take a case unless they are virtually certain they will win. It also means that the lawyer or firm that takes the case must have a big war chest and there are not very many who do. Meanwhile, corporations and insurance companies have virtually unlimited funds available to retain multiple experts and they routinely subject plaintiffs to delays and hurdles to leap until money runs out and they settle the case for less than it is worth or they drop out.

Fortunately, in criminal cases, an indigent defendant has a Sixth Amendment right to have the court appoint and compensate an expert when an expert’s assistance is “reasonably necessary” to present a defense. Ake v. Oklahoma, 470 U.S. 68 (1985).

There are any number of urban legends about undeserving plaintiffs who won multiple million dollar judgments against ‘poor’ corporations and insurance companies, but I doubt that any of the stories are true. Even if some of them are true, they pale when considering the following studies.

When considering whether there should be limits on tort liability for damages due to personal injury, keep in mind that, according to HealthGrades’ fifth annual Patient Safety in American Hospitals Study, patient safety incidents cost the federal Medicare program $8.8 billion and resulted in 238,337 potentially preventable deaths during 2004 through 2006.

This study followed HealthGrades’ studies in 2000-2002 that reported 195,000 preventable deaths per year in U.S. hospitals.

Here are the applicable rules regarding ordinary and expert witness testimony.

As you read the rules and my discussion of Daubert v. Merrell Dow Pharmaceuticals that follows, keep in mind that one of the many evidence-based debates that we should be having as an educated democratic society, but tragically are not having, is what should we do to reform these rules and other practices to assure fair and equitable results to economically disadvantaged people who suffer personal injury.

Rule 701 provides:

If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are

(a) rationally based on the perception of the witness,

(b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and

(c) not based on scientific, technical, other specialized knowledge within the scope of Rule 702.

Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion, or otherwise, if

(1) the testimony is based upon sufficient facts or data,

(2) the testimony is the product of reliable principles and methods, and

(3) the witness has applied the principles and methods reliably to the facts of the case.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the United States Supreme Court reversed the Ninth Circuit Court of Appeals decision affirming the trial court’s dismissal of the plaintiffs’ lawsuit against Merrell Dow Pharmaceuticals for birth defects allegedly caused by Bendectin, a drug manufactured by Merrell Dow to prevent pregnant women from suffering morning sickness. The plaintiffs had relied on in vitro and in vivo animal studies, pharmacological studies, and reanalysis of other published studies to show that Bendectin could have caused the birth defects. Nevertheless, trial court had dismissed their lawsuit based on the Frye Rule, which prohibits the use of evidence that has been obtained from using a scientific methodology or process that has not been generally accepted in the scientific community.

The United States Supreme Court rejected the Frye Rule in Daubert as unnecessarily restrictive of new discoveries in science because it amounted to little more than counting heads in the scientific community to determine if a principle or methodology was generally accepted rather than evaluating the merits of the new principle or methodology. Therefore, even though the scientific community had not yet generally accepted that Bendectin caused birth defects, the Court concluded that the studies relied on by the plaintiffs were sufficient such that they should have been been permitted to present them to a jury to consider.

In Daubert the Court basically appointed trial judges to function as gatekeepers in determining whether to admit evidence based on novel scientific principles or methodologies. The Court set forth a non-exclusive checklist for trial judges to apply in assessing the reliability of scientific evidence. The specific factors the Court mentioned are:

(1) whether the expert’s technique or theory can be or has been tested according to some objective process,

(2) whether the technique or theory has been subjected to peer review and publication,

(3) whether there was a known or potential rate of error for the technique or theory and, if so, whether it was applied,

(4) whether applicable laboratory standards and controls were used, and

(5) whether the technique or theory used has been generally accepted in the scientific community (which is the Frye Rule downgraded from an outcome-determinative rule to one of several factors that should be considered).