WASHINGTON, April 4 (UPI) -- When plaintiffs and defendants go into civil courtrooms in the United States, along with their lawyers they often bring so-called expert witnesses to help them make their cases. These technical and scientific experts can play significant roles in trials dealing with product liability, negligence, intellectual property, and civil rights, and juries or judges often decide a case based on whose experts they believe are better.
But are the experts really all that expert? How can the courts screen out courtroom "experts" who may be presenting flawed evidence that lacks credibility?
A recent study by the non-profit think tank RAND Corp.'s Institute for Civil Justice examines the results of the U.S. Supreme Court's attempt to tighten the standards used to admit expert testimony into federal civil cases. The report, "Changes in the Standards for Admitting Expert Evidence in Federal Civil Cases Since the Daubert Decision," by Dr. Lloyd Dixon and Dr. Brian Gill, focuses on the High Court's ruling in the 1993 case Daubert v. Merrell Dow Pharmaceuticals.
In the Daubert case, the Supreme Court directed judges to evaluate the scientific or technical validity of evidence from expert witnesses, and to admit only evidence that was reliable and relevant. The RAND study also explores how plaintiffs and defendants who want to use or challenge expert evidence has responded to Daubert.
The study found that since Daubert, judges have increasingly tried to evaluate the reliability of expert testimony. Dixon and Gill found increases in the amount of submitted expert evidence that judges found unreliable, and the amount they excluded. The authors also found, based on a subsequent decline in the proportion of unreliable and excluded evidence, that both plaintiffs and defendants have responded to the stricter standards by submitting more credible expert evidence.
Dixon and Gill caution that it is too early to say whether the tougher standards have helped, and recommend further research to fill in some of the remaining questions. These questions include how well judges act as gatekeepers, how Daubert has specifically affected trial outcomes, and the costs, in terms of time and dollars, of the current expert-evidence screening system.
In the Daubert case, the plaintiffs argued that their children had suffered severe birth defects because their pregnant mother had taken the prescription drug Bendectin to prevent nausea. Merrell Dow, the drug's maker, used extensive expert testimony to prove that no evidence existed against Bendectin's safety. The company based its claims on the extensive published scientific literature. The Dauberts responded with eight experts of their own, who based their claims on animal studies and reanalysis of the human studies.
The trial court and the Court of Appeals ruled in favor of Merrell Dow, based on the "general acceptance" standard first articulated in the 1923 case Frye v. United States, which said a technique must be generally accepted by the appropriate scientific community in order to be admitted as evidence.
The U.S. Supreme Court, however, ruled that the Dauberts' claim superseded the Frye test, saying that the plaintiffs had submitted expert testimony that was relevant, even if it hadn't been peer-reviewed. This ruling means that rather than relying on standards drawn from the experts' fields of specialty, judges now must act as gatekeepers to ensure the reliability and relevance of expert evidence.
Dixon told United Press International that while judges have indeed tightened up standards since Daubert, it is not clear whether this has actually improved matters in the courtroom. It's also not completely certain, he said, whether these stricter standards are a direct result of the Daubert ruling, or merely coincidental.
In fact, the study notes that the Daubert decision might actually lead to less rigorous standards in some cases, because judges are no longer absolutely bound by the general acceptance standard, and can now admit any expert evidence they deem appropriate.
The larger question, which the RAND study doesn't answer, is whether or not judges are informed enough or have adequate background to properly administer tests of expert evidence.
Other than pointing out areas for future research, Dixon and co-author Gill make no recommendations in their study. But Dixon does offer several suggestions for reform. These include the education of judges, increased use of special masters, and the use of neutral experts to help the judges make decisions about expert evidence.
Judges are already authorized to hire such expert panels, but very few do. "We've found very little use of neutral experts," Dixon said. "It was just a miniscule number."
Victor Schwartz, a former law professor who now serves as general counsel for the American Tort Reform Association, told UPI that he supported Daubert-related efforts to tighten standards. In fact, he said, he and his ATRA colleagues wrote the case's principal "amicus," or friend-of-the-court brief.
ATRA, founded in 1986, is a broadly based, bipartisan coalition in favor of civil justice reform. Its members include more than 300 businesses, corporations, municipalities, associations and professional firms.
Schwartz, who has gained the nickname "Schwartz on Torts" because of his legal textbook, said the central problem with rules about expert testimony is the disparity between federal and state courts.
"I think the federal courts have done a good job keeping out the bad science and leaving in the good science," he said. "But that's not true of some state courts."
Another problem is that some plaintiffs have sought to extend Daubert standards to all types of expert testimony, not just strictly scientific testimony. He noted the Supreme Court's 1999 case, Kumho Tire v. Carmichael, in which Kumho Tire sought to bring non-scientific expert witnesses.
Schwartz also noted the problems of lax enforcement of Daubert in some state courts. Some state judges are not using expert panels to examine the basic validity of expert testimony, which may be credible even when the expert lacks academic credentials.
"I may have a degree from M.I.T. in engineering," Schwartz said, giving an example. "But when I get up on the stand, what I say may be completely worthless." At the same time, he said, someone might have a degree from a non-prestigious school, but still have valuable testimony to give.
There is also the problem of what Schwartz called the "super powers" given to expert witnesses. For example, expert witnesses can testify to hearsay and provide ultimate opinions on products -- actions that are not permitted by ordinary witnesses.
"Coming with those 'super powers,' in our view, should be responsibility," Schwartz argued.
Schwartz said that plaintiffs have responded to Daubert with "forum-shopping" -- trying to get their cases out of federal courts and into state courts with looser standards. He said that certain courts in certain states, such as Mississippi, Texas, and Louisiana, tend to allow inadequate expert testimony. New York, on the other hand, applies Daubert to both federal and state suits.
Steven Milloy, an adjunct scholar at the libertarian Cato Institute in Washington, said he sees Daubert as a useful tool for ridding courtrooms of what he calls "junk science." Milloy also runs the Web site JunkScience.com. On the site and in his books he critiques invalid scientific theories that show up in debates about business regulation and public policy.
Though not a practicing lawyer, Milloy has advanced degrees in health science and law. He believes Daubert has helped decrease the number of questionable experts testifying in liability and civil tort cases at the federal level.
"In (researching) my book, I saw that since 1994, of the 73 lawsuits involving liability or civil tort, the judges admitted only 23 experts," he told UPI. Federal appellate courts allowed only 10 of 31 experts to testify.
Despite the heavy responsibility placed on federal judges by Daubert, Milloy said, "I guess I'd rather have the judge as the gatekeeper than the jury, because I think the judge is more likely to make a better decision." The reason, he said, is that "the judge is likely to be better educated and less swayed by emotion than the jury."
Milloy said he thinks all state courts should establish "Daubert panels" of neutral experts to assist judges. "I wouldn't want to see a federal law mandating this," he added.
The issue is essentially about product liability, Milloy said. "Lawyers see the corporate deep pockets," for products such as Bendectin and silicone breast implants. "(The lawyers) offer the science (which may be completely unreliable) just so they have a rationale they can offer to the jury. And the jury doesn't care, because they're just going to act on emotion."
He also said he believes there is no risk that the stricter standards for expert evidence will exclude "novel science" which has not been peer-reviewed. "It's not 'novel science' -- it's junk," he said.
"Breast implants are just the perfect example -- there are so many wacky verdicts at the state level because the judges let in almost anybody (as an expert witness)," Milloy said. Breast-implant maker Dow found it easier and less expensive to settle at the state level, he said, even though the federal level offered stricter standards of evidence.
Though the RAND study was not able to determine the exact influence of Daubert, both Dixon and Milloy said they feel the ruling represents a step in the right direction. They said the ruling seems to have been well accepted -- except, of course, among those who want to present so-called novel science in expert testimony.
In addition, despite Daubert, Dixon believes that judges still often rely on the general acceptance standard, which requires peer review within the scientific community.
