 You're watching FJTN, the Federal Judicial Television Network. The Federal Judicial Center presents Science in the Court Room, a series of programs for judges on science and scientific evidence. Program Six, Dowbert Issues in Toxic Tort Cases, a discussion moderated by the Honorable Fern M. Smith, Director of the Federal Judicial Center. Hello and thank you for joining us for the sixth program in our series, Science in the Court Room. In this program, we'll address issues judges are likely to encounter as they perform their gatekeeping function in toxic tort cases. By now, I'm sure you're all quite familiar with the trilogy of Supreme Court cases on the admissibility of expert testimony, Dowbert, Joiner, and Kumho Tire. And so we won't spend time today reviewing the facts and holdings of those cases. Instead, we'll focus on how best to apply them, and particularly, Dowbert, in the very specific context of a toxic tort case involving epidemiology and toxicology evidence. Joining me for the discussion are Judge William W. Schwarzer of the Northern District of California. Attorney Elizabeth Cabraser, partner with the firm of Leif Cabraser, Hyman and Bernstein in San Francisco. Judge Barbara Jacobs Rothstein of the Western District of Washington. And Attorney Nathan Schachtman, a partner with the firm McCarter & English in Philadelphia. Most of you already know judges Rothstein and Schwarzer, but you may not know attorneys Cabraser and Schachtman. They have extensive experience in toxic tort and other complex litigation, and we're pleased to have them with us today. Welcome. As a springboard for our discussion, we'll be using an abridged version of a hypothetical toxic tort case originally developed by professors Margaret Berger of Brooklyn Law School and Diane Zimmerman of New York University Law School. The full version of the hypothetical with discussion questions is included in the reference materials for this program posted on the Center's DCN site. Here, then, is a synopsis of the case. Plaintiff, Mrs. Jones, files a diversity action against Qualcomm Manufacturing Company for wrongful death. The claim results from Mr. Jones' exposure to Qualcomm 43, a chemical released into the Blue River by the company as a byproduct of its manufacturing operations. Mrs. Jones brings the action as executor of Mr. Jones' estate. The complaint states that Mr. Jones contracted liver cancer and died as a result of his exposure to Qualcomm 43 in the drinking water of the family home located on the banks of the Blue River. In its answer, defendant admits that its plant is 10 miles up river from Plaintiff's property, that Qualcomm 43 is a byproduct of its manufacturing process and that small amounts of Qualcomm 43 have been discharged into the Blue River for many years. It denies that Mr. Jones' liver cancer was caused by Qualcomm 43. Plaintiff will proffer the testimony of two experts, Dr. Epidemiologist and Dr. Toxicologist, on the issue of causation. With that beginning, let's start by considering a basic question about the role of the trial court as gatekeeper. Judge Schorzer, let me ask you this. Assuming a toxic tort like this one, where you know that there are going to be dowbert issues raised at some point or the other, do you wait for the attorneys to raise those issues or do you think it's the role of the court, Sue Espani, to get right into it? I think it's very important that the judge come to grips with the issues early in the case. So the process of issue definition should begin at the first conference and particularly the definition of issues that involve scientific expertise and expert evidence. It may well be that the judge would be intimidated by the subject matter of the case, but shouldn't be. And the judge should insist that the lawyers explain the subject matter and the issues and the science involved in plain language so that he will be sure to understand it. The judge should consider at that point what areas require expert evidence and should consider the number of, limiting the number of experts who will testify. There is a tendency to overuse experts and often generally will be sufficient to have one expert per scientific discipline. At this point the judge should establish procedures for compliance with Rule 26A2C, that is the expert disclosures. And the reports that experts need to furnish is a part of the disclosure of critical importance because they will establish what the testimony will be a trial, they'll limit the evidence, and they'll ensure that the parties prepare adequately for the trial. At the second conference the parties should be prepared to identify the proposed experts and a schedule and program should be set up for the discovery directed experts. This is a point too at which the court should consider whether any protective orders will need to be entered and of course at this point the judge should find out whether there will be objections to any of the expert testimony implicating procedures under Rule 104A and leading into a dober type hearing. This procedure that I've described briefly is set out in some detail in the Reference Manual on Scientific Evidence published by the Center. Okay. Judge Rothstein, let's assume just by coincidence you've got a case on your docket almost identical to the one Judge Schwarzers handling and you've gotten to the stage where you've had these preliminary conferences and now the defendant has filed a motion to exclude certain testimony and you've decided that some type of a hearing might be necessary. What are the mechanics of that hearing? Well, the mechanics of the hearing to a large extent will be determined by the complexity of the issues involved. Not every one of these cases needs a full-blown hearing. There are some cases that can be decided on affidavits. The problem with affidavits is that often they take as much time to review as it would take to hold a regular hearing with the experts testifying one for each side. The preferred technique would be to have an in-court hearing with the experts testifying. The advantages of this is that the court can see and evaluate the experts and the most important thing is the court has the ability to ask questions and in these complex scientific areas that is exactly what the court should be doing. Again, I would emphasize that if there's anything the court finds difficult to understand, the question should spur the experts to speak in plain English. Now, it's important that before you have the hearing the issues be clearly defined so that the experts are meeting and discussing the same issues. Of course, this will happen because you've had superb pre-trial along the line just as Swazer had mentioned. Discovery will be completed. At least as to the experts. If you don't have Discovery completed your hearing is going to turn into just an opportunity to give each side a chance to do what they should have done on expert depositions. Are there going to be cases where these motions to exclude expert testimony are accompanied at the same time by a motion for summary judgment? I would say in most cases, yes. If it's not exactly filed simultaneously you know that it's coming. If the motion to exclude is granted. If the motion to exclude is granted because you cannot underestimate the importance of these hearings. If experts are excluded as a result of these hearings often that's case-determinative. Nobody can go forward in a complex scientific case without an expert. So in essence what you're doing really is making a determination of what will ultimately be a summary judgment question. These are you are a plaintiff's lawyer. In that role in a complex case in particular are you going to push for an evidentiary hearing or would you prefer to see it decided on affidavits or what? Well given the near inevitability of Daubart challenges in complex cases I would prefer a live hearing whether it's a formal or informal hearing with the court so that the court can see and hear my experts and vice versa because that gives me an opportunity to see how my experts are going to perform in a courtroom setting where the case is at stake and it also gives me an opportunity to see how the judge reacts not just to my experts but to the theories and to the issues that are involved so that I know the extent to which the court is familiar with the issues should become more familiar wants to become more familiar before it's too late in the case on papers I don't think that the court gets the full benefit of what the experts have to say and the lawyers don't get the full benefit of interaction with the court at that stage. Mr. Shackman in this particular case this is your motion to exclude. Now are you going to try to convince the judge that a hearing on paper is sufficient or do you agree with Ms. Cabraiser and Judge Rothstein that usually an evidentiary hearing is best? No, I agree with them that a hearing in this case is the best thing and I'm going to push for it by pointing out that there are substantial questions of reliability and fit that aren't just minor problems but they really threaten the correctness or validity of the experts' opinions. I will of course before asking for the hearing filed after David's prior testimony briefs with a close analysis of the proffered experts' opinions to show why there are reliability and fit questions and I'm going to emphasize that the court, as Ms. Cabraiser suggested needs to eyeball the expert and interact with the expert and make the expert answer specific questions so the judge can do his or her job as a gatekeeper and as Judge Rothstein mentioned there's going to be a motion for summary judgment it may be presumptuous to file it at the same time as the Daubert Challenge but it's coming and I think that's all the more reason why the judge should hold a hearing and in some cases with Viva Voce testimony. Okay, well clearly there are certain areas where both sides of the dispute and the court agree on what is usually the best procedure but let's move on and assume Judge Schwerzer that following expert testimony there is a motion for summary judgment filed by the defendant claiming that no genuine issue of material fact exists with regard to causation and at the same time the defendant has moved to exclude all of plaintiff's expert witnesses on the grounds that their testimony has no scientific validity. Now you're a judge not a scientist what does a scientific validity mean to the court? Well Daubert tells us that an expert's opinion to be valid must be grounded in scientific knowledge that is it has to be grounded in methods and procedures of science not subjective beliefs and unsupported speculation. Daubert sets out some non-exclusive criteria for testing scientific validity such as whether the theory has been or can be tested whether it's been peer reviewed whether it's been published whether there's an established rate of error and whether it has general acceptance in the scientific community. But scientific validity must not be confused with the sufficiency of evidence which remains a jury question. The three cases in the trilogy that you've mentioned are illustrative of the kinds of expert evidence that have failed to pass muster as being scientifically valid. In Daubert for example the evidence failed to include any pre-litigation or independent research by the experts and the work of the experts that have never been published are subjected to peer review. In the Joyner case the testimony of the expert evidence consisted of having infant mice ingest massive doses of PCB to try to show that the plaintiff's exposure to PCB caused his lung cancer. That was rejected because the mice were infant mice and not adult mice and because they contracted a different kind of cancer. And finally in the Kumho case the tire expert was unable to say how long this tire had actually been on the car and that he was offered to show that the tire was defective when it left the factory and he relied entirely on its objective mode of analysis which was not supported by any papers or other expert work. So these are illustrations of expert evidence that failed to pass muster under Daubert. Daubert does raise an interesting question about the admissibility of forensic techniques that have been used for many years but really would fail the test of scientific validity such as handwriting analysis and fingerprint identification. So that remains an open question under Daubert. Well it's important Judge Schwarz for all of us to remember that ever since Kumho tire it's clear that these principles and problems apply to all kinds of cases not just toxic tort or other cases involving hard sciences. So we'll be back shortly to discuss those and other issues. Let's move on and assume that we've gotten to the stage where the court has decided in fact to hold an evidentiary hearing. And the plaintiff's first witness is Dr. Epidemiologist who will testify that based on a study she's reviewed she has concluded in fact that Qualchem 43 causes liver cancer in humans. Ms. Cabraiser how deeply do you feel a court should probe to examine whether or not the expert has in fact followed each of the protocols underlying the methodology used by the expert and in order to assess the reliability of the opinion. The party opposing the study or the expert is going to make sure that the court has an opportunity to probe the methodology and every aspect of the study and that's become the battleground. But I think it's important to remember as Judge Bechtel said in the orthopedic bone screw case a case in which the plaintiffs were trying everything they could think of to keep out a particular epidemiological study. It was a cohort study and the court said there's no such thing as a perfect epidemiological study. Most studies even though we've had Daubert with us for a number of years now are not conducted or designed with litigation in mind. So from a retrospective view every study is going to have its flaws. Some studies will have many flaws but despite those flaws the study still may be quite useful to assist the trial of fact. So the court is not acting as an Olympic judge grading with 10, 9, 8 a study that may be quite flawed even flawed to the extent that its accuracy might be impugned is still admissible to assist the trial of fact particularly if there are going to be other studies that form the basis of either the plaintiffs or the defendant's expert opinions. Let's see if that's another area where you and Mr. Shackman agree. Mr. Shackman, you're the Ms. Cabraser's opponent in this case and one of the things you know about this study is that in fact is the only one that's out there that assumes or deals with the effects of Qualchem 43 on humans. Does the fact that there's a solo study alone affect the liability of that study? Well it does and putting aside the obvious flaws in the study, the fact that we have a single study itself is very problematic for Dr. Epidemiologist's testimony. There are generally accepted criteria by which Epidemiologic assessments of causation are judged and in fact they're set out in the reference manual and are sometimes described as the Bradford Hill criteria. Two of those criteria are the strength and consistency of the association and here we, putting aside the weakness of the association, we only have one study so it can't be consistent with any other studies. There are very few bull's eyes in Epidemiology and sometimes a study which shows an association is met with a second or third study which shows no association. There's no presumption of correctness so that makes it very problematic and we should keep in mind that there's been a real proliferation of journals and much of what gets published nowadays is weak and equivocal in terms of the association shown and it can't rule out bias and confounding and therefore we can't reach a judgment of causation and this one study is not a reliable basis to make a judgment of causal association. Okay. Judge Schwerzer, let's keep going and from your standpoint let's assume that there has been one or more departures from generally accepted procedures in conducting this one available study. Now, Daubert talks about general acceptance and it doesn't it isn't the sole criteria of opinions anymore but how much departure from generally accepted procedures is acceptable before a judge becomes worried about the admissibility of evidence. Well, as you say the essential holding of Daubert is that general acceptance is no longer necessary prerequisite admissibility of scientific evidence under rule 702 and that's a change from what the law used to be but general acceptance still remains a relevant factor because it's likely that it will be intertwined or reflected in other indicia of validity such as peer review, publication testing and information about the rate of error. There's a distinction between general acceptance of a theory on one hand and general acceptance of procedures for conducting particular study. So in the latter case, general procedures general acceptance of a procedure will probably reflect experience of the scientific community in achieving accuracy and reliability. It's of interest to look at what the court said in Kumho that the objective of the gatekeeping requirement is that an expert employ in the courtroom the same level of intellectual rigor and the characterizes the practice of an expert in the relevant field so a departure from generally accepted procedures may be extremely damaging and probably fatal to a finding of validity. Miss Cabraser, we all hear publicity or information at times about studies that have been funded by a particular party for purposes really of litigation, typically class action litigation. Does the fact that a party that proffers a study has funded it in fact, is that a reliability issue or do you think that's more a question for the jury to decide the weight of that evidence? Ultimately it's going to be a jury issue and I think it's important that jurors know and they will know where studies come from who has sponsored them and who has funded them. In the pre-trial stage I do believe that should come out not only because it may evidence bias but I think it is an indicator that the protocol and the methodology ought to be subjected to closed scrutiny as it certainly will be by opposing counsel and it should be to the court that said I think it's important to understand that although this has been a very controversial issue and it's particularly an issue for plaintiffs because most studies that are privately funded are not funded by the plaintiff's bar or a particular plaintiff's group or plaintiff's lawyer, they're funded by manufacturers and industries they're funded in the course of seeking to obtain FDA approval if it's a pharmaceutical or a medical device and while that type of a study is less common in the course of toxic substances they do occur and those studies have a purpose, money is paid and money is spent for a particular purpose in mind and it's not necessarily pure science we don't have a government that sponsors a vast array of pure science studies although the government does fund some and I think we have to accept the fact that it's not a perfect world and biases can creep in because of the object of the study there have even been cases where studies have been suppressed by their sponsors when the researchers were not reaching the conclusions and the results that the funding entity preferred and that does happen and I think it's part of the adversary procedure at the pretrial stage to bring that out is that going to render a study probably not unless there is a severe flaw in the study itself but it's something the trier of fact would want to know I would think so and Judge Rothstein at this stage you know it's still in your hands and we hear from people on the panel here there's no such thing as a perfect study things may be funded by parties there's what's a poor judge to do a poor trial judge to do are you going to look for the perfect error free study and keep hoping it comes up or is there some formula in Daubert that tells you how many errors are okay before you still let it go forward well I suppose one can dream but the fact of the matter even judges even judges well I think we are perpetually hoping somebody will give us bright lines somewhere but this is just another case where that isn't going to happen the truth of the matter is it's virtually impossible to design a completely and totally error free study error in studies often result from built in biases in the design of the study everyone in the course of speaking just now has mentioned bias in a study and what the judge will be called upon in the course of the hearing to assess is how much error there is in the study and how much bias there has been and whether that bias has been so substantial that it's leading to a totally incorrect outcome thus making the study worthless the important thing is to determine the bias and by determining the bias it is often possible to determine the extent of the error that has crept into the study once the bias is identified the specific type of bias then the court can determine whether it is exaggerating the association that the study claims to be proving whether it's diluting that association maybe even masking it entirely there are different types of bias one of the types is conceptual bias which means that the person who is designing the study is asking the wrong question to begin with and that will really lead to serious error throughout the study as it's done there can be something called systematic bias which is basically error in the selection of the subjects of the study either for the control or for the actual subjects of the study themselves and again there can be what's called population bias which is the fact that the sample size may not be adequate and you're getting skewed results because you're looking at such a small sample size the judge will get help in determining the degree of error and the type of error and that help usually comes from opposing counsel and opposing counsel's expert and opposing counsel's cross examination and that will be the way in which the court usually will be led to the error but the assessment of the degree of error and how much the error really contributes to either a need to just disregard the study entirely it's going to be another judgment call for the court Mr. Shackman is it true that more often than not if there has been a party funded study it's going to be have been funded by the defendant and if so does that do you feel that that puts you somehow in no pun intended a defensive posture about the studies you're presenting well assuming that the study is exculpatory it really shouldn't be relevant to the issue of whether the challenged expert here or plaintiff's expert has offered reliable evidence and generally I disagree with Ms. Cabraser that the assessment of funding or sponsorship is a proper inquiry for the Daubert review it certainly is an appropriate thing to be taken up in discovery and it may be appropriate at the time of course examination at trial if we get there but it's not really calculated to lead to revealing a different kind of bias there's an ambiguity in that term we're talking about systematic bias or scientific bias which is described in some detail in the reference manual and that's different from the kind of bias by pointing to who sponsored or funded a particular study so no I don't think that I have to be defensive about sponsoring studies and in my experience I have found that sometimes secretively plaintiffs and plaintiffs counsel have funded studies themselves you've mentioned a couple of times I wasn't planning on a commercial but you've mentioned the scientific the manual on scientific evidence is that something you read for purposes of this panel or is that a tool that lawyers in fact use in these cases well the second edition just came out but the first edition which was out in 1994 has become mandatory reading for anyone who practices in this area of the law and I've had occasion to submit a copy with my briefs in support of the Daubert application okay thank you and it's widely available for many publishers that's correct that happy note we will return shortly let's turn now to the testimony of the plaintiff second witness doctor toxicologist as we consider the question of fit or relevance of proffered scientific evidence Judge Swarza you know that Daubert also requires that the court inquire into whether or not the proffered testimony will assist the trier of fact is it relevant or does it fit the pertinent issues in the case what things should the court be looking at in determining whether there's a fit between the evidence and the issues that are before the trier of fact or will be well as you say scientific evidence may be entirely valid but not necessarily relevant to the case the crucial question is whether the expert evidence is sufficiently tied to the facts of the case so it will help the jury decide the factual issues in the case that's really the second prong of rule 702 so in toxic tort cases that will often involve the question of specific causation and the Daubert case is an example in that case the plaintiffs offered circumstantial evidence from experts that Bendectin caused birth defects in animals that its chemical structure was similar to other birth defect causing agents and that Bendectin increased the risk of birth defects but that evidence failed the fit test because it didn't prove it was not probative of the issue in the case that is whether the plaintiffs birth defects were caused by Bendectin so the evidence that it increased the risk of birth defects was not relevant unless it also established a relative risk sufficiently high so as to make it more likely than not that the ingestion of Bendectin was the cause of plaintiff's defects so where the evidence only establishes the possibility of a link as in the Daubert case and not the probability it doesn't meet the test to fit Judge Rothstein let's assume that in this case Dr. Toxicologist has rested his opinion on an animal study and in particular one that where he concludes that exposing animals to very high doses of Qualchem 43 is associated with liver cancer or take it further even that it causes liver cancer in animals is that an issue of fit and if so how good a fit does it have to be in most animal studies the dosage that's administered to the animal subjects is very different from the exposure that humans will have had in the actual case take for example the case here if one goes back to the full-fledged original study not the version that we've used here in this program you will see that the mice were exposed to approximately 125 times the dosage that the plaintiff would have received over a lifetime the rat subjects again in the original you can see were exposed to very, very high doses so these are the issues that constantly come up in a toxicology study and the first issue the validity of interspecies extrapolation that is from animals to humans depends on the biological plausibility of applying the test on the animals to reach conclusions about causations in humans and this in turn depends on such matters as the state of knowledge about the pathology of the disease and how that pathology carries out in the mechanism of the particular species in other words is it a similar organ to that found in human beings is the organ function similar to that in human beings is the chemical transfer similar to that in human beings is the immunity to it what is the similarity between the particular species being used and how can you extrapolate from that to humans the other issue the appropriate dose response relationship and what is the proper relationship to use when you're extrapolating from the species that is the subject of the experiment to humans is a very, very complicated one it will be different in case to case and it's very important that the court make sure that the expert explains in great detail to the court how that dose relationship was arrived at if that can't be done if you can't get a clear answer to either of these questions it could cast out on the validity of applying the entire study to humans but in answer to your question it is a matter of fit ultimately that it does come down to does this study fit in this case and I guess along with making sure that the expert and the lawyer speaking plain English is the admonition to the judges that I some advice I received when I first went on the bench is don't be afraid to ask what you think may be stupid questions so judges have a responsibility to keep probing and asking questions until you do understand and you can't be shy you have to recognize that there's no shame in saying I don't understand these issues because the fact of the matter is they're very complicated issues and one should probe well never having met a shy federal judge will go on and ask Ms. Cabraser this Ms. Cabraser you just associated into this case so it's not hasn't been designed and organized as well as you would have done but they told me it was a great case I'm sure they did but in the meantime you get in and you discover that your epidemiologist has one study and your toxicologist only has this one animal study are you going to get to a jury do you think and if so why should you get to a jury because in part because I think there's a tendency to over rely on epidemiological studies and we have to recognize that for most substances there won't be epidemiological studies they're long term studies they're expensive they're usually not designed for purposes of litigation there's not time to conduct one if you've got looming litigation and so the advantage of toxicological studies is they can be done more economically they can be done more quickly and they are done through extrapolation and the question there is is the extrapolation proper and while judges and lawyers and juries are uncomfortable with extrapolation scientists are not so I'd want an expert that could explain the validity of that animal study because I'm probably going to rely more on the toxicological study and the toxicologist as my expert and there's one more thing that I would want to do Qualchem has a plant on the blue river and I would want to see whether there is an occupational toxicologist or a workplace physician that has conducted studies of the workers there in terms of their exposure because regulatory agencies are concerned with workplace exposure to chemical substances and there may be a lot of useful information there there may be a study in discovery I would certainly want to find out if there are medical records that are kept in terms of treating and observing exposure levels to workers at the plant and that's going to be a very rich source of data if I can find it and finally because both epidemiology and toxicology usually deal with generic causation I still have to put additional pieces of the puzzle in to get a fit I have to deal with a treating physician or an examining physician who may be able to give a differential diagnosis and rule out other factors such as Mr. Jones medical history his family medical history his possible exposure to other substances if he's had a disease in the past such as hepatitis B that can impact the liver in later life I would certainly want to be able to show the jury that he doesn't have any of those factors confounding factors and they can all be ruled out so I'm looking at a combination of experts who are going to interrelate so that the reminder of fact has many different pieces of the puzzle that it can put together to determine causation okay now Mr. Shackman let's assume it's your lucky month and the Daubert hearing is held before miscobraser associates in and so you have a less or an income not I don't want to say incompetent but a less prepared advocate then miscobraser is and so we have all of these associated experts at the hearing there is only the toxicologist and the epidemiologist is this study this animal study going to pass the fit test and should it be admissible no I think it's still fourth down in miles to go whether you look at the toxicologist in isolation or with the epidemiologist neither alone or together have presented admissible testimony that's reliable and fit in this case there are several leaps of faith here on the epidemiology side we have a case control study which by the way doesn't require a long term follow up it's something that can be done relatively quickly whereas an animal study does require one and a half or two years of follow up on the rats but the epidemiology study whatever we think of it in isolation isn't a reliable basis for the conclusion that there's general causation in this case and the toxicology have evidence involves several leaps of faith we've already heard about the interspecies extrapolation and we know that rats are different from humans and in fact sometimes rats are different from mice and we don't have a concordance among rodents so that it illustrates how different different species are and how they react differently to different chemicals and then we have the extrapolation from very high doses to the very low doses that were involved in this sort of environmental exposure case exposures at the factory are not really going to help us understand the effects of low doses which sometimes have protective effects as opposed to just smaller effects than the high doses so I'm not saying that toxicology is not important it sometimes helps us understand the mechanisms or the toxicokinetics it is used frequently in regulatory affairs where people have to come up with hypothetical risk assessments which are based on many assumptions but those aren't relevant here and they're not going to be helpful to a jury in this case. Is your opinion about fit going to change if doctor toxicologist testifies that Qualchem 43 is in fact does in fact cause cancer in humans or are you going to insist or try to insist that the showing be made that it caused cancer in this particular human. So you're asking me to concede general causation and focus on specific causation Well I'm asking you to at least concede that there is testimony to general causation No we wouldn't concede specific causation it's very much part of our application in this case because there's nothing that will allow us to make the attribution of Mr. Jones's liver cancer to the exposure to Qualchem 43 in this case there are some particular issues that we'd have to look at such as is there an appropriate latency between first exposure and the manifestation of his disease and whether you could rule out other known causes such as alcoholism and cirrhosis of the liver and hepatitis B and C but the problem is that most of the cases of liver cancer don't have known causes so differential diagnosis is not going to allow you to rule it out and ultimately what you have in cases such as this is simply a naked statistical process of causation based upon a relative risk assessment from an epidemiologic study and the courts have said in that particular case and for instance Judge Jones' decision in Hall against Baxter Health Care is an example that unless you have more than a doubling of the relative risk you can't make the attribution in a reliable way in a particular case so it's not at all conceding Judge Schwerzer Dowbert involved a situation that was relatively easy in that the overwhelming consensus in the scientific community was that Bendectin did not in fact cause birth limb defects how should a court handle a case however and there are many of them where there is a fair amount of conflicting scientific evidence as to the toxicology or epidemiology what do you do in those ambiguous situations well in the end the court has to remember that the resolution of conflicting testimony is a matter for the jury to decide so what the court should do in a case where there are conflicting pieces of expert evidence is to examine each one standing on its own in the light of the Dowbert Trilogy the fact that experts appear on both sides of an issue of scientific evidence may well indicate that a case can be made for the validity and perhaps the relevance for each side's theories now where the testimony involves a newly developing field in which the orthodoxy has not yet been established the court needs to take care particular care that what goes to the jury is reliable in the sense that the work has been done with professional rigor but contrary to what some people may believe Dowbert does not put an end to the battle of experts in the courtroom okay thank you and we will return shortly with some conclusions I think one of the things that all of us would agree on at this point is that the crux of this issue is really how can judges best meet their obligation to assess the trustworthiness or reliability of scientific evidence without usurping the jury's role as the trier of fact and the arbiter of credibility Judge Rothstein where do you see that line well it is one of the most difficult lines to draw part of the background of the Dowbert case is important to take into consideration one of the factors that was involved was the introduction of junk science into the courtroom when that happens not only may the case outcome or the individual case be wrong but it may very well hold the entire system up to look bad in the eyes of the public so the court was mindful of that and did intend the gatekeeping role to be taken seriously and once one takes the gatekeeping role seriously become very clear that it may in fact be a case dispositive ruling therefore may be the end of everything that happens so on the other hand once the decision is made that the judge will be gatekeeper that must be limited to only ruling on admissibility judge must be very very careful not to intrude on the province of the jury and the issue is only admissibility testimony as to whether causation is more likely than not and the given case is stepping into the role of the jury Judge Schwarzer these lines are not bright and they're difficult to walk do you see the role of the judge differently than Judge Rothstein does? No I agree with what has just been said and I think it's well for the judge to remind herself from time to time that she's not to decide whether she's an expert or the other but to remain focused on methodology rather than on credibility this fancy new fangled term of gatekeeper is really analogous to what judges traditionally do in terms of passing on whether the foundation for evidence has been laid sufficiently only in a new and difficult and complicated context just to take a homely example a judge sitting on a drunk driving test must pass on the challenge to testimony of an expert on the test to which a blood sample was submitted what the judge has to do is to consider whether the sample was handled according to established methodology that there were no mistakes and no mishandling took place but if the test passes a muster of methodology then whether the defendant was driving under the influence is a question Miss Cabraser and Mr. Schachman you have both tried cases around the country do you find that judges understand where their role stops and where it's time to turn it over to the jury Miss Cabraser? I have to say not always I think the Daubert decision had an unintended consequence most things do but in Daubert I think one message that some judges received which was not transmitted is that it is the judge's job to suspect the scientific or expert evidence of one side or another and reserve special skepticism for that evidence because it is scientific evidence but as Judge Schwerzer pointed out Daubert was simply trying to level the playing field to prevent judges who might be overawed or intimidated by science from failing to subject that potential evidence to the same type of scrutiny that is reserved for all other evidence in the courts and I think that's the message that has to come out because the purpose of the Daubert and its progeny is to facilitate a battle of the real experts and despite the cries of junk science to Daubert I think it's important to remember that neither one side nor the other is the province of so-called junk science and it's very important particularly when there are unfamiliar methodologies or cutting edge science or great controversy that the purpose of the court is not to act as the scientific review board to pick the expert or the studies it most prefers but to determine whether all of the proffered evidence is going to meet the basic assisting the trier of fact standard to be let into the courtroom Mr. Shackman is this final question going to leave you in Ms. Cabraser in agreement or in disagreement? Partial agreement Judge Smith certainly when Daubert was decided in 1994 there wasn't an immediate embracing of the gatekeeping function by trial judges the death knell of the old ready willing able testifier rule that we saw in therapy in some other cases and so with now Joiner and Kumho Tire and recently the Weissgram case the Supreme Court has made it very clear that this function is here to stay and I've seen more enthusiasm for the function among trial judges who certainly would still like to have that bright line rule that Daubert and Rothstein referred to and I certainly don't have that formula or algorithm to give to judges but Daubert is not simply the creation of rhetoric about junk science from one side or the other in the courtroom but really represents a perception that the judgments coming out of court about scientific issues were so disconnected from what was going on in the scientific community that it had to be done and so it's not just business as usual I think it represents a change in judicial philosophy and an institutional reformation to conform the practice of expert testimony to what goes on in the scientific community Well I hope that this panel has made some of those issues a little more clear to our audience we've just about reached the end of this segment so before we close let's summarize some of the panel's major conclusions first don't assume that every case requires a full blown evidentiary hearing second the court does have an obligation to perform the gatekeeper role which includes examining the underlying methodology and which may require a hearing third as part of this insists that the witnesses and the lawyers explain their position in plain English fourth, it is not your role to decide the weight of the evidence but rather it's admissibility and fifth, there are few of any bright lines but common sense and a willingness to listen and to probe will not only get you through it but provide you with an exciting opportunity to learn of course the issues we've considered today are complex and as the discussion has shown call into play pertinent principles as much as governing legal principles as such I encourage you to make use of any and all resources that will help you achieve a working knowledge of the principles of epidemiology toxicology or whatever types of scientific evidence you are encountering in your cases those resources include the other programs in this series the center's reference manual on scientific evidence materials on the center's DCN side accompanying this program including the full toxic tort hypothetical developed by professors Berger and Zimmerman and for guidance in managing complex cases involving issues similar to those we've considered today the center's manual for complex litigation in closing I'd just like to say again how grateful we are to all of our panelists for giving time and sharing their experience with us we hope this helps those of you who are watching and I encourage you to check the FJTN bulletin and the center's DCN site for the schedule of other programs in our science in the courtroom series on behalf of the FJC thank you for watching