By Thomas J. Graves, American Coatings Association

“There is something fascinating about science. One gets such wholesale
returns of conjecture out of such a trifling investment of fact.”

—Mark Twain, Life on the Mississippi (1874) 

With the emergence of a professional, entrepreneurial plaintiff attorney bar in the wake of huge financial paydays in asbestos litigation, the nature of personal injury and environmental lawsuits in this country fundamentally changed. In the vast majority of cases, lawsuits are no longer the result of an individual who believes he has been harmed contacting an attorney in the first instance. Rather, most such lawsuits now are the result of a business decision by plaintiffs’ attorneys, who identify a potential corporate target and then launch massive advertising campaigns on late night television, radio, and the internet for individuals whose illnesses the plaintiffs’ counsel believe can be blamed on the corporation.

Although there are situations (such as asbestos) in which the plaintiffs’ claims are backed by strong scientific evidence, in all too many cases, these claims are supported solely by anecdote and speculative studies that would never be accepted as reliable evidence by scientists in the ordinary course of their work outside the courtroom. To protect against the use of such “junk science” in the courtroom, the United States Supreme Court issued a series of rulings in the 1990s—known as the Daubert trilogy—instructing trial courts to act as gatekeepers so as to only allow relevant and reliable scientific evidence to be presented to a jury. As Supreme Court Justice Stephen Breyer explained: “[M]odern life, including good health as well as economic well-being, depends upon the use of artificial or manufactured substances, such as chemicals. And it may, therefore, prove particularly important to see that judges fulfill their Daubert gatekeeping function, so that they help assure that the powerful engine of tort liability, which can generate strong financial incentives to reduce, or to eliminate, production, points to the right substances and does not destroy the wrong ones.” Following the Daubert trilogy, the Federal Judicial Center, which is charged with writing the rules of evidence that govern federal courts, revised Federal Rule of Evidence 702 in 2000 to make certain that trial courts fulfilled their gatekeeping responsibility.

“. . . the need for proper Rule 702 gatekeeping
against unreliable scientific evidence
should not be a partisan issue.”

Fifteen years have passed, and it is now apparent that the 2000 amendments to Rule 702 have not succeeded in entrenching this responsibility. Many courts apply Rule 702 and the Daubert trilogy faithfully, and in those courtrooms, jurors are properly equipped to reach for the truth without being subject to what the Supreme Court characterized as “powerful and quite misleading” expert testimony. In other courts, however, judges continue to leave the gate open to such testimony, relying on little more than an expert’s “say so” that his testimony is scientifically reliable. These judges argue that courts are not equipped to look behind an expert’s professed weighing of scientific evidence, even if each individual piece of evidence purportedly being weighed is unreliable in itself to support the expert’s opinions. Or they argue that a court can only look to see whether an expert has used a reliable methodology in reaching his/her opinion, and cannot consider that the expert applied that methodology in an improper manner or founded the use of the methodology on data that would not be considered scientifically reliable or relevant by experts outside the courtroom. And these courts simply ignore the scientific method by allowing experts to base their testimony on studies designed solely to raise questions rather than studies designed to test those hypotheses through objective and replicable science.

As part of its Civil Justice Reform Initiative, the American Coatings Association is taking the lead in fighting this flood of junk science in the courtroom. In an article published in the October 2015 issue of the William & Mary Law Review, ACA’s outside counsel, Eric Lasker of the Washington, DC law firm, Hollingsworth LLP, and George Mason University Foundation Professor David Bernstein argue that it is time for the Judicial Conference to amend Federal Rule 702 once again to bring these wayward courts back in line with the principle of sound science in the courtroom established in the Daubert trilogy. Messrs. Lasker and Bernstein review the history both of the Supreme Court’s Daubert trilogy and the legislative history behind the 2000 amendments to Rule 702 and point to specific areas in which courts have either misunderstood or willfully ignored their responsibility to protect jurors from junk science.

“The Daubert  trilogy . . . has greatly improved the quality
of  the evidence upon which  juries base their verdicts.”

As these authors explain, the need for proper Rule 702 gatekeeping against unreliable scientific evidence should not be a partisan issue. Some of the earliest calls for a crackdown on dubious expert testimony came from editorials in perceived left-leaning publications, such as The New York Times and The New England Journal of Medicine. Moreover, although the debate over admissibility often plays out in the arena of toxic tort litigation, with corporate defendants challenging the reliability of testimony proffered by plaintiffs’ experts, the Federal Rules also govern criminal proceedings in which a number of recent, high profile investigations have indicated that defendants are often imprisoned based upon faulty forensic science. The temptation of many judges to abdicate their gatekeeping responsibility is in some ways understandable. Most judges, one can assume, did not reach their position based upon a background steeped with scientific training. As one appellate court explained, however, in a case handled by Lasker’s firm, “although making determinations of reliability may present a court with the difficult task of ruling on matters that are outside of its field of expertise, this is less objectionable than dumping a barrage of scientific evidence on a jury, who would likely be less equipped than the judge to make reliability and relevance determinations.” The court continued: “The Daubert trilogy, in shifting the focus to the kind of empirically supported, rationally explained reasoning required in science, has greatly improved the quality of the evidence upon which juries base their verdicts.”

For the American Coatings Association and its member companies, this is a cause worth fighting for.