(originally posted on www.masstortsstateoftheart.com on October 4, 2011)
Well, the Reference Manual on Scientific Evidence: Third Edition is out. And the fix is in.
Think we exaggerate? How about this little gem from the Preface: "Judges and juries, however, must consider financial conflicts of interest when assessing scientific testimony. The threshold for pursuing the possibility of bias must be low. In some instances, judges have been frustrated in identifying expert witnesses who are free of conflict of interest because entire fields of science seem to be co-opted by payments from industry"?
Or how about the first section of the first chapter of the Manual: "A. Atomization"? Citing our least favorite case, Milward v. Acuity, the Manual frowns on the effort of courts to examine the premises, and the evidence allegedly supporting those premises, of an expert when determining whether his causal inference is warranted. Noting, very slyly and without disclosing their demand for transparency and accountability, that certain well known and respected authorities have concluded that ultimately the determination of causation is a matter of scientific judgment "reflecting the weight of the evidence", the Manual chastises those who might cock an eyebrow when it turns out that none of the "evidence" proffered by an expert actually supports his opinion. What duties would be left to a gatekeeper obliged to accept the mere ipse dixit of a well credentialed academic? The Manual, unsurprisingly, doesn't say.
Worse yet, and indicative of who, and what cause, was behind the effort, the Manual goes on to cite the new-ish Milward three more times. Once for the proposition that the unproveability of a theory is proof of the theory; once to support the rubber stamping of an expert's personalized and unexamined - weighing in the scales of his scientific judgment - "methodology"; and, once to reject the idea that statistical significance testing - the "it might be so" hurdle for hypothesis generation from statistics - is any business of federal judges.
The first chapter tellingly concludes that "there are serious concerns about whether ... the guidelines have resulted in trial judges encroaching on the province of the jury to ... judge the overall credibility of ... scientific theories." We thought the whole point of Daubert was to ensure a better approximation of the truth by at least limiting the theories to be considered by lay juries to those that have a decent chance of being true. Guess not.
David Oliver is managing partner of the Houston office of Vorys, Sater, Seymour and Pease. His practice focuses on civil litigation involving allegations of injuries due to exposure to chemicals or pharmaceuticals; he holds degrees in both chemistry and biology. David is registered for DRI’s Annual Meeting. He is speaking at the Toxic Tort Committee CLE session on October 28.