(62) Mon 13 Oct 97 14:22 By: Sheppard Gordon To: All Re: S.C. & Junk Science 1/3 St: ------------------------------------------------------------------------------ @EID:4fa1 234d72c0 @MSGID: 1:278/15 00135dd4 High Court To Rule On Admissibility Of Junk Science 10/10/97 FEDERAL FILINGS BUSINESS NEWS The U.S. Supreme Court will take up the topic of so-called "junk science" and its place in the courtroom when it considers the General Electric Co. v. Joiner case on Oct. 14. The issue in dispute in this case is what is the standard for appellate court review of a trial court's decision to exclude expert scientific testimony under the 1993 Supreme Court case Daubert v. Merrell Dow Pharmaceuticals Inc. In Daubert, the high court reversed a court of appeals decision that upheld the district court's grant of summary judgment in favor of Merrell Dow. The district court ruled in Merrell Dow's favor based on its submission of an affidavit of Steven H. Lamm, a "well- credentialed" physician and epidemiologist, who reviewed "extensive published scientific literature" and concluded that a mother's use of the antinausea drug Bendectin was not the cause of the plaintiffs' birth defects. According to the district court, the plaintiffs' evidence was not "generally accepted" and thus it was inadmissible as expert testimony, despite the fact that the plaintiffs produced eight well- credentialed experts who based their conclusion that Bendectin can cause birth defects on animal studies, chemical structure analyses, and an unpublished reanalysis of previously published human statistical studies. The Supreme Court in Daubert remanded the case to the Ninth Circuit Court of Appeals to consider the admissibility of the experts' testimony in light of Rule 702 of the Federal Rules of Evidence, which assigns the judge the task of ensuring that an expert's testimony "rests on a reliable foundation and is relevant to the task at hand." "We are confident that federal judges possess the capacity to undertake this review," the opinion written by retired Justice Harry Blackmun states. In Daubert, the high court assigned district court judges the role of "gatekeepers" who must protect the factfinding process from scientific evidence that is unreliable as science and does not fit the facts of the case being adjudicated. Chief Justice William H. Rehnquist, joined by Justice John Paul Stevens, wrote his own opinion in Daubert concurring in part and dissenting in part with Blackmun's opinion in which he said "I do not doubt that Rule 702 confides to the judge some gatekeeping responsibility...but I do not think it imposes on them either the obligation or the authority to become amateur scientists." "I think the Court would be far better advised in this case to decide only the questions presented, and to leave the further development of this important area of the law to future cases," Rehnquist said. Richard S. Lewis of Cohen Milstein Hausfed & Toll told Federal Filings Business News that when the high court handed down the Daubert decision it was unclear whether it was a tightening or relaxing of the standard for appellate review. In Daubert, the Supreme Court said that it was liberalizing the standard, Lewis said. The court indicated that district judges, when deciding whether to admit expert testimony, should focus on the expert's methodology, not his conclusions. The court did not want federal judges to be amateur scientists, Lewis added. Instead, he said that the court wanted federal judges to stick to their role as gatekeepers and rule solely on the admissibility of expert testimony to ensure that the science that comes before the jury is legitimate. The court ruled that the determination of the soundness of the evidence should be left to the ultimate factfinder, the jury, Lewis told FFBN. In his practice as a toxic tort environmental plaintiff's attorney, Lewis said that district court judges are not listening to the warning in Daubert to limit their role to that of gatekeeper, and instead are making scientific judgments. With regard to the court's ultimate opinion in the Joiner case, Lewis said "there are so may ways it can go with this case," it may rule solely on a legal basis or it may look substantively at the criteria for review suggested in Daubert. Whatever the final decision, the Joiner case may have an impact on the success rate and the number of cases that go to the jury, Lewis predicted. A Daubert hearing is a proceeding that the judge handles, Lewis explained, and the issue at stake is how far a judge should go in not "treading on the jury's territory." If a defendant wins a Daubert hearing, depending on which expert is excluded, it may be the end to a plaintiff's case, Lewis said. Plaintiffs usually rely on a "causal chain" of experts to prove their case and "every chain is essential," so if one of the links "breaks," it can mean trouble for the plaintiff's entire case, he added. Robert Peck, director of legal affairs for the Association of Trial Lawyers of America (ATLA), in commenting on the importance of the Joiner case, said that there is extensive use of expert evidence in trials, much of it involving novel scientific evidence. With the Joiner decision, it is hoped that the high court will give "extensive guidance" on what the trial judge's gatekeeper function should be, he told FFBN. "ATLA is particularly concerned that appellate review of rulings excluding expert testimony be sufficiently rigorous to safeguard litigants' right to trial by jury," ATLA said in its "amicus curiae" or "friend of the court" brief in support of the Joiners. ATLA is a voluntary bar association whose 50,000 members primarily represent injured plaintiffs in civil actions and defendants in criminal prosecutions. Peck agreed with Lewis that the high court in Daubert said that it was liberalizing the Federal Rules of Evidence, yet the decision left the lower courts confused, with some courts emphasizing their gatekeeper function and others minimizing this role and allowing in more evidence. Peck told FFBN that it is very risky to predict which side the court will come down on, adding that he hopes that it does not rule solely on the narrow procedural issues in this case and that it gives further guidance on the issue of the admissibility of evidence in general. "It would be a tragedy if the court decides the narrow issues and left the broader issues until a later time," he said. -> Alice4Mac 2.4.4 E QWK Hiya:05Nov94 Origin: ----------> Jack Sargeant, you look fabulist! --- PCBoard (R) v15.3/M 10 * Origin: MoonDog BBS þ RIME NetHub Brooklyn,NY (1:278/15) SEEN-BY: 218/890 1001 278/15 230 353/250 396/1 3615/50 51 @PATH: 278/230 3615/50 218/1001 ------------------------------------------------------------------------------ (63) Mon 13 Oct 97 14:22 By: Sheppard Gordon To: All Re: S.C. & Junk Science 2/3 St: ------------------------------------------------------------------------------ @EID:4f51 234d72c0 @MSGID: 1:278/15 00135dd6 Dean Dickie, chair of D'ancona & Pflaum's litigation group, agrees with the Joiners' argument that if the court sides with the companies, judges would become gatekeepers who determine whether an expert's new theory should be admitted into evidence. "This presents problems for people who want to present new theories," Dickie said. "What happens when an expert espouses a new theory and the judge asks whether that has been established and if it hasn't, the judge won't let it into evidence because it would be speculative?" Allowing a judge to screen the conclusions of expert witnesses invades an area historically left for the jury, he said. "I trust the jury system. I think the jurors reject unfounded expert opinion and that [carelessly] done studies are attacked and made to look foolish by trial counsel," he told FFBN. Carter Phillips of Sidley & Austin believes that the Joiners' brief did not make a convincing argument for a stricter standard of review, and that the court will reject their arguments and side with GE and the other petitioners. Sidley & Austin filed an amicus brief for the American Medical Association (AMA) on behalf of the companies. Phillips called the issue at hand "a moderately important" one. Following a diagnosis of small-cell lung cancer in 1991 at the age of 37, Robert K. Joiner, a chief electrician for the City of Thomasville, Ga., and his wife, Karen, sued General Electric, Westinghouse Electric Corp., and Monsanto Co. in state court in Aug. 1993. Robert Joiner claimed that his exposure to their products as a result of contaminated transformers contributed to his unusually early onset of lung cancer. Joiner sought compensatory damages of more than $10 million on each of the six counts alleged in his complaint plus more than $20 million in punitive damages. The case was then removed to federal court. The complaint, which accused the defendants of negligence and fraud as well as loss of consortium on behalf of Karen Joiner, was later amended to add a claim of battery and to seek $10 million more in compensatory damages. The Joiners contended that although he was a former cigarette smoker and his family history of lung cancer may have put him at a greater risk for the disease, his exposure to polychlorinated biphenyls (PCBs) and their derivatives, polychlorinated dibenzofurans (furans) and polychlorinated dibenzodioxins (dioxins) "promoted" his small cell lung cancer. At trial, Joiner testified that (i) he had smoked a pack of cigarettes a day for at least eight years before quitting in 1980 or 1981; (ii) both his parents had smoked and he lived with them until he was 23; and (iii) his mother and his uncle had died of lung cancer. During discovery for the trial, the Joiners produced two expert witnesses in support of their claim that the transformers manufactured by GE and Westinghouse containing PCBs, furans and dioxins manufactured by Monsanto had contributed to Joiner's development of lung cancer. The companies asked for summary judgment arguing that the testimony of Drs. Daniel T. Teitelbaum and Arnold L. Schecter was inadmissible because the experts assumed that Joiner was exposed to furans and dioxins when, in fact, the record did not support such an assumption. The companies also claimed that although Joiner was concededly exposed to PCBs, there was no evidence that he had absorbed a significant dose. They argued that the opinions of Schecter and Teitelbaum were not credible because several of the epidemiological and animal studies that they had looked at did not support the conclusion that the companies' products were likely to have contributed to Joiner's development of lung cancer. The U.S. District Court for the Northern District of Georgia on Sept. 1994 excluded the testimony of the Joiners' experts and granted the companies' motion for summary judgment, finding that there was no genuine issue of material fact and so the companies were entitled to judgment as a matter of law. A three-judge panel on the U.S. Court of Appeals for the Eleventh Circuit in March 1996 disagreed and sent the case back to the district court because in assessing the reliability of the Joiners' experts, the lower court improperly rejected two animal studies relied on by the experts. Moreover, the trial court wrongly determined that the experts' opinions were incorrect rather than merely determining whether the bases supporting their opinions were reliable. Finally, the appeals court found that the trial court improperly determined that the experts' opinions did not fit the facts of the case, and that their testimony created a genuine issue of fact as to whether PCBs alone could cause cancer without the presence of dangerous derivatives and whether those derivatives could have been present in the transformer fluid. JOINERS' ARGUMENT According to Joiner, the appeals court's opinion correctly set forth the appropriate standard of review when looking at the lower court's decision to grant summary judgment in favor of the companies: (i) a new or "de novo" review of whether there is a genuine issue of material fact regarding Joiner's exposure to furans and dioxins; (ii) a complete review of whether the district court erred in its construction of Rule 702; and (iii) if the district court's ruling is free of legal error, a "hard look" at the decision to determine if there is an abuse of discretion. The appeals court never took this hard look because the court reached its decision on the threshold grounds that the district court had committed legal error in finding that there was no genuine issue of material fact concerning Joiner's exposure to furans and dioxins. Once the Eleventh Circuit reached this conclusion, it was required to reverse the district court's finding that the testimony of Joiner's experts did not fit the facts of the case because the ruling was entirely based on an erroneous view of the record, Joiner argued in its brief. Since the appeals court made no determination of whether the district court had abused its discretion, the Joiners said the Supreme Court should affirm the Eleventh Circuit decision even if it disagrees with the appeals court's call for a "hard look" for an abuse of discretion when a case is "summarily taken from the trier of fact." "Even if this Court does not agree with the "hard look dictum, the judgment below should still be affirmed, because the dictum was not applied in this case and did not affect the disposition below," the -> Alice4Mac 2.4.4 E QWK Hiya:05Nov94 Origin: ----------> Jack Sargeant, you look fabulist! --- PCBoard (R) v15.3/M 10 * Origin: MoonDog BBS þ RIME NetHub Brooklyn,NY (1:278/15) SEEN-BY: 218/890 1001 278/15 230 353/250 396/1 3615/50 51 @PATH: 278/230 3615/50 218/1001 ------------------------------------------------------------------------------ (64) Mon 13 Oct 97 14:22 By: Sheppard Gordon To: All Re: S.C. & Junk Science 3/3 St: ------------------------------------------------------------------------------ @EID:8f00 234d72c0 @MSGID: 1:278/15 00135dd8 Joiners argued in their brief. In their brief, the companies argued that the Court of Appeals used a new "particularly stringent" standard of review under Rule 702 that is inconsistent with the Federal Rules and with this court's determination that a trial court is given wide discretion in weighing the admissibility of evidence. The Eleventh Circuit strayed from the established standard to apply a new, judicially created "particularly stringent" review only for rulings that exclude proffered opinions and lead to summary judgment, they argued. This new, results-oriented approach "bears no relation to criteria for determining standards of review that this Court has turned to on numerous occasions." This asymmetrical "particularly stringent" review is not supported by the Federal Rules, is contrary to Daubert and other prior cases, and "would ignore the evenhandedness that normally characterizes this country's judicial procedure," the brief contends. "The District Court had overwhelming basis for ruling as it did, and the Court of Appeals did not master the record," the companies told the high court. AMICUS BRIEFS Dow Chemical Co. in its amicus brief in support of the companies, cited a "marked increase" in toxic tort litigation and the thousands of breast implant lawsuits filed against the company in order to stress the need for careful screening of expert testimony. Daubert established "essential analytical tools" that allow federal courts to ensure that theories of causation are genuine science, not illegitimate speculation, Dow argued. Thousands of breast implant cases remain pending against Dow and so it is "vitally important" that appeals courts, in reviewing trial court rulings on the admissibility of scientific evidence, stay true to the principals set forth in Daubert. "It simply is inconceivable that in distinguishing between "principles and methodology" on one hand, and 'conclusions' on the other, this Court abdicated to the expert himself the responsibility for ensuring compliance with the Federal Rules of Evidence," Dow told the high court. It is up to the trial court to exercise its gatekeeping duty and make a preliminary determination that an expert's proposed opinion rests on "good grounds," after which the jury then has the role of choosing which of the competing, scientifically-grounded conclusions is the correct one, Dow argued. The New England Journal of Medicine and one of its editors, Marcia Angell M.D., declining to come down on the side of either party, said that when determining the admissibility of scientific expert evidence and whether exposure to a particular substance is dangerous, judges should appoint independent reputable scientists to help them in making admissibility decisions. The use of such scientists would significantly increase the likelihood that the evidence presented to juries actually constitutes scientific knowledge and not merely speculations or hypotheses, the New England Journal of Medicine said. Three physicians specializing in the field of preventative and occupational health and the Oil, Chemical & Atomic Workers International Union AFL-CIO filed an amicus brief in support of the Joiners saying that the district court "misconstrued" its role when it tried to evaluate the conclusions of the Joiners' experts rather than their methodology. Not only did the district court fail to confine its role to evaluating the methodology the Joiners' experts used, it also failed to understand the diagnostic methodology employed by occupational medicine professionals as a whole, Peter Orris M.D., MPH, David Ozonoff, M.D, M.P.H., Janet S. Weiss M.D., and the union argued. Despite many federal court decisions concluding that PCBs are toxic and carcinogenic, the district court held that the plaintiffs failed to show that their experts' opinions regarding the PCB/lung cancer link are admissible, they asserted. The doctors and the union pointed to the appeals court decision, which stated that instead of looking at the bases of an expert's opinion as a whole to screen out "mere speculation," the trial court only assessed a portion of the studies relied on by each of the Joiners' experts. The district court made mention of the fact that it was persuaded by the companies' attack on the conclusions of the studies used by Joiners' experts. In evaluating these conclusions, the district court failed to understand that its role was to look at the methodology and "completely ignored" the Supreme Court's dictate that the decision to allow such testimony should weigh broadly in favor of the proponent of the evidence, they asserted. The brief lists the qualifications of Teitelbaum and Schecter in order to show that there was "no question" that they were qualified to testify in the fields of preventive and occupational medicine. "Indeed, given their vast experience in the area of PCBs it might even be argued that the threshold for the admissibility of their opinions should be lowered," the brief asserts. The AMA came to a different conclusion in its brief in support of the companies. Looking at the facts of this case, the AMA pointed out that one of the two experts testified that his medical practice focused on persons involved in litigation, and the other one stated that he testified three to four times a month almost always for the plaintiff. The physicians also pointed out that the district court identified several independent grounds for holding that the Joiners' experts were not admissible to prove causation because they lacked an adequate scientific foundation for their conclusion that the PCB exposure promoted Mr. Joiner's lung cancer. "Allowing the district courts to consider the substance of proffered expert testimony in applying the Daubert criteria will not, as the court of appeals feared, 'turn scientists into jurors or surrogate scientists,'" the AMA argued. The Supreme Court announced on March 17, 1997 that it would hear the case. Michael H. Gottesman, who argued the Daubert case before the high court, will be arguing the Joiner's case. Deputy Solicitor General Lawrence G. Wallace will be arguing on behalf of the Justice Department in support of the Joiners. Gottesman has an "incredible reputation" before the court, Lewis told FFBN. Steven R. Kuney of Williams & Connolly will be arguing the case for the companies. This is his first appearance before the high court. -> Alice4Mac 2.4.4 E QWK Hiya:05Nov94 Origin: ----------> Jack Sargeant, you look fabulist! --- PCBoard (R) v15.3/M 10 * Origin: MoonDog BBS þ RIME NetHub Brooklyn,NY (1:278/15) SEEN-BY: 218/890 1001 278/15 230 353/250 396/1 3615/50 51 @PATH: 278/230 3615/50 218/1001