Skip to main content
SpringerLink
Log in

The science veil over tort law policy: How should scientific evidence be utilized in toxic tort law?

  • Published:
Law and Philosophy Aims and scope Submit manuscript

This is a preview of subscription content, log in via an institution to check access.

Access this article

Log in via an institution

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Institutional subscriptions

References

  1. Larry Wright,Critical Thinking (New York: Oxford University Press, 2001), p. 233.

    Google Scholar 

  2. U.S. Congress, Office of Technology Assessment, Identifying and Regulating Carcinogens (Washington, D.C.: U.S. Government Printing Office, 1987), pp. 199–220 [herinafter referred to as OTA,Identifying].

  3. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).

  4. L. Dixon and B. Gill, ‘Changes in the Standards for Admitting Expert Evidence in Federal Civil Cases Since theDaubert Decision’ (Santa Monica, CA: RAND Institute for Civil Justice, 2002).

    Google Scholar 

  5. Carol L. Krafka, Meghan A. Dunn, Molly Treadway Johnson, Joe S. Cecil, and Dean Miletich, ‘A Survey of Judges’ and Attorneys’ Experiences, Practices, and Concerns Regarding Expert Testimony In Federal Civil Trials’, Federal Judicial Center, Washington, D.C. (forthcoming).

  6. Michael A. Green,Bendectin and Birth Defects: The Challenges of Mass Toxic Tort Substances Litigation (Philadelphia: University of Pennsylvania Press, 1995), 368 pp. [herinafter referred to as Green,Bendectin], and Paul Thagard,How Scientists Explain Disease (Princeton: Princeton University Press, 1999), 263 pp. [hereinafter referred to as Thagard].

    Google Scholar 

  7. Clayton P. Gillette and James E. Krier, ‘Risk, Courts and Agencies’,University of Pennsylvania Law Review 38 (1999): 1077–1109.

    Google Scholar 

  8. C. Cranor, ‘Risking Justice and Truth: The Judicial Admissibility of Science Subsequent toDaubert v. Merrell-Dow Pharmaceutical’, presentation to The International Public Interest Law Conference, University of Oregon Law School, March 2002 and at ‘Good Science or Junk Science: Should Courts Decide?’ Wayne State University Law School and Philosophy Department, September, 10–11, 2002.

  9. Michael Gottesman, Georgetown Law Center, presentation at ‘Science the Courts, and Protective Justice’, February 27, 2003, sponsored by the Science and Environmental Health Network and Georgetown Environmental Law and Policy Institute.

  10. Barefoot v. Estelle, 463 U.S. 880 at 900, 103 S.Ct. 3383 at 3398 (1983).

    Google Scholar 

  11. Fleming James, Jr. and Geoffrey C. Hazard, Jr.,Civil Procedure, 2d Ed. (Boston: Little, Brown and Company, 1977), p. 149. (Defendant is entitled to judgment as a matter of law, since there is no genuine issue as to the facts between the litigants.)

    Google Scholar 

  12. Ibid.,, p. 527–599.

    Google Scholar 

  13. Carl F. Cranor,Regulating Toxic Substances (New York: Oxford University Press, 1993), pp. 3–5 [herinafter referred to as Cranor,Regulating].

    Google Scholar 

  14. Ibid., p. 12–48.

    Google Scholar 

  15. Green,Bendectin, p. 16.

  16. Carl F. Cranor and David A. Eastmond, ‘Scientific Ignorance and Reliable Patterns of Evidence in Toxic Tort Causation: Is There a Need for Liability Reform?’Law and Contemporary Problems 64 (2001): 6, 12–13 [herinafter referred to as Cranor and Eastmond, “Scientific Ignorance”].

    Article  Google Scholar 

  17. Green,Bendectin, p. 16.

  18. James Huff and David Hoel, ‘Perspective and Overview of the Concepts and Value of Hazard Identification as the Initial Phase of Risk Assessment for Cancer and Human Health’,Scandinavian Journal of Work Environment and Health 18 (1992): 83–89.

    Google Scholar 

  19. National Research Council,Toxicity Testing: Strategies to Determine Needs and Priorities (Washington, D.C.: U.S. Government Printing Office, 1984), p. 84.

    Google Scholar 

  20. John C. Bailor, University of Chicago, and Eula Bingham, University of Cincinnati, members of the 1984 NRC Committee, personal communications at Collegium Ramazzini, Bologna Italy, 2002.

  21. ‘EPA, EDF, CMA Agree on Testing Program Targeting 2,800 Chemicals’,Environmental Health Newsletter (Business Publishers, Inc., Silver Spring, MD). 37 (Oct. 1998): 193; Elain M. Faustman and Gilbert S. Omenn, ‘Risk Assessment’, inCasarett and Doull’s Toxicology (Curtis D. Klassen ed., 6th ed. 2001), pp. 85–86.

  22. U.S. Congress, Office of Technology Assessment,Screening and Testing Chemicals in Commerce (Washington, D.C., U.S. Government Printing Office, 1995), p. 3.

    Google Scholar 

  23. OTA,Identifying, pp. 126–127.

  24. Gerald Markowitz and David Rosner,Deceit and Deception: The Deadly Politics of Industrial Pollution (Berkeley: University of California Press, 2002) (a detailed study of lead and vinly chloride).

    Google Scholar 

  25. Margaret A. Berger, ‘Eliminating General Causation: Notes Towards a New Theory of Justice and Toxic Torts’,Colum. L. Rev. 97 (1997): 2135 [hereinafter referred to as Berger, ‘Eliminating General Causation’] (citing studies of Agent Orange, asbestos, Bendectin, silicone breast implants, the Dalkon Shield, thalidomide, tobacco, MER/29, alachlor, atrazine, formaldehyde, and perchloroethylene). For other references, see Cranor and Eastmond, ‘Scientific Ignorance’, p. 14.

    Google Scholar 

  26. See Ricardo Alonso-Zaldivar and Davan Mahara, ‘Tests Show Firestone “Had to Know,” Probers Say; Safety: Congress Cites New Evidence Against Tire Maker as Sentiment Swings in Favor of Criminal Penalties in Such Cases’,Los Angeles Times, Sept. 21, 2000, at C1.

  27. Richard A. Oppel, Jr., ‘Environmental Tests “Falsified”, U.S. Says’,New York Times, Sept. 22, 2000, at A14; Melody Petersen, ‘Settlement Is Approved in Diet Drug Case’,New York Times, Aug. 29, 2000, at C2; David Willman, ‘The Rise and Fall of the Killer Drug Rezulin; People Were Dying as Specialists Waged War Against Their FDA Superiors’,Los Angeles Times, June 4, 2000, at A1; David Willman, ‘Risk Was Known as FDA Ok’d Fatal Drug’,Los Angeles Times, Mar. 11, 2001, at A1; and In Re: Phenylpropanolamine (PPA) Multi-District Products Liability Litigation (Western District of Washington).

  28. Markowitz and Rosner,Deceit and Deception.

  29. See, e.g., Gayle Green,The Woman who Knew Too Much: Alice Stewart and the Secrets of Radiation (Ann Arbor: The University of Michigan Press, 1999) (describing governmental attempts in the United States and Great Britain to preclude researchers from data and vigorously to fight their findings concerning exposures to nuclear radiation); Matthew L. Wald, ‘U.S. Acknowledges Radiation Killed Weapons Workers’,N.Y. Times, Jan. 29, 2000, at A1. The governmental requirements for rocket fuel have now resulted in substantial contamination of the nation’s groundwater with perchlorate (a rocket fuel component) and other known toxicants that are only now coming to public attention (In Re: Redlands Tort Litigation (2001), referenced in Lockheed Martin Co. v. Superior Court, 109 Cal. App. 4th 24 (2003)).

    Google Scholar 

  30. Michael D. Green, ‘Safety as an Element of Pharmaceutical Quality: The Respective Roles of Regulation and Tort law’,St. Louis University Law Journal 42 (1998): 163–190.

    Google Scholar 

  31. Cranor and Eastmond, ‘Scientific Ignorance’, pp. 6, 12–13.

  32. Cranor,Regulating, pp. 12–48.

  33. Cranor and Eastmond, ‘Scientific Ignorance’, pp. 20–24.

  34. Richard Marcus, ‘Reexamining the Bendecting Litigation Story’,Iowa Law Review 83 (1997): 231; James T. Richardson, ‘Bendectin and Birth Defects: the Challenges of Mass Toxic Substances Litigation, by Michael Green and Science at the Bar: Law, Science, and Technology in America, by Sheila Jasanoff’,Judicature 81 (1997); 86; Francis E. McGovern, ‘Judicial Centralization and Devolution in Mass Torts: Bendectin and Birth Defects: the Challenges of Mass Toxic Substances Litigation, by Michael D. Green’,Michigan Law Review 95 (1997): 2077; Betsy J. Grey, ‘Book Review: Bendectin and Birth Defects: The Challenges of Mass Toxic Substances’,Jurimetrics Journal 37 (1996): 83.

    Google Scholar 

  35. Green,Bendectin, p. 1.

  36. Ibid., pp. 3, 144.

  37. Ibid., pp. 121–158.

  38. Ibid., pp. 157–158.

  39. Philip J. Hilts,Protecting America’s Health: The FDA, Business, and One Hundred Years of Regulation (New York, Alferd K. Knopf, 2003), p. 151.

    Google Scholar 

  40. Green,Bendectin, p. 89.

  41. Ibid., p. 88 (quoting the federal judge in Toole v. Richardson-Merrell, Inc.).

  42. Ibid., p. 128.

  43. Ibid., p. 129.

  44. Blum v. Merrell Dow Pharmaceuticals, Inc. 33 Phila. Co. Rptr. 193 at 236 (Court of common pleas, Philadelphia County, 1996). (The judge additionally noted that the company “picked and chose” the scientific data to use about the safety of its products (at 218), that scientific researchers “groveling[ly] sought research funds from the drug company to produce results that ‘may save the company large sums of money … (which is rather what [one of the scientists] thought when [he] undertook this study) …’” (219), that there was “a sycophantic relationship between [one of the scientists that did research on Bendectin] and the attorneys representing Merrell Dow, a relationship which clearly affected the objectivity of his approach and the validity of his writing on the drug bendectin” (225), that there was legitimate concern about a “medical industrial complex” (analogous to the military industrial complex against which President Eisenhower warned) (248), that scientific consensus opinion in the relevant ‘scientific community’ can be and has been manipulated when the financial stakes warrant the effort” (249)).

  45. Ibid., p. 258.

  46. GreenBendectin, p. 15.

  47. Ibid., p. 19.

  48. Ibid., p. 20.

  49. See Daubert, 509 U.S. 579, 582 (1993).

  50. Ibid.

  51. Ibid.

  52. Ibid., p. 583.

  53. Joseph Sanders, ‘Scientific Validity, Admissibility and Mass Torts after Daubert’,Minnesota Law Review 38 (1994): 1387.

    Google Scholar 

  54. See Daubert v. Merrell Dow Pharms., Inc., 727 F. Supp. 570, 575 (S.D. Cal. 1989), aff’d, 951 F.2d 1128 (9th Cir. 1991), vacated, 509 U.S. 579 (1993).

  55. See Frye v. U.S., 293 F. 1013 at 1014 (D.C. Cir. 1923) (emphasis added).

  56. Green,Bendectin, at 309.

  57. See Daubert v. Merrell Dow Pharms., Inc., 951 F.2d 1128, 1131 (9th Cir. 1991),vacated, 509 U.S. 579 (1993).

  58. Ibid., pp. 1129–1130.

  59. Ibid. The existence of a large amount of contrary evidence seems relevant to the issue of sufficiency of the evidence, not the issue of admissibility (See Sanders, ‘Scientific Validity’).

  60. Daubert v. Merrell Dow Pharms., Inc., 951 F.2d at 1131.

  61. See Daubert, 509 U.S. at 597–598.

  62. Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311 (1995). This controversial opinion endorsed a legal requirement for causation that a group exposed to a substance must have a relative risk of two compared with a control group that poses both scientific and legal issues. (Carl Cranor, John G. Fischer and David A. Eastmond, ‘Judicial Boundary Drawing and the Need for Context-Sensitive Science in Toxic Torts afterDaubert v. Merrell Dow Pharmaceuticals, Inc.’, Virginia Environmental Law Journal 16 (1996): 1–77, pp. 37–40.)

  63. Wright & Miller Treatise, 29 Fed. Prac. & Proc. Evide. §6266 at Note 13.

  64. See Daubert, pp. 588–589.

  65. Ibid.

  66. McCormick on Evidence, 3rd Ed., Edwin W. Cleary et al., ed. (St. Paul, MN: West Publishing Co., 1992), pp. 909–911 and Daubert v. Merrell-Dow Pharmaceutical, 509 U.S. at 592.

  67. Daubert, p. 592. This suggests that experts’ testimony must be asreliable as witnesses who have firsthand knowledge of events about which they testify. Whether firsthand knowledge is particularly reliable is another issue.

  68. Ibid., at 590.

  69. Ibid.

  70. Ibid., at 588 (quotingThe Federal Rules of Evidence, section 702).

  71. Justice Stephen Breyer, ‘Introduction’,Federal Reference Manual on Scientific Evidence (Federal Judicial Ctr. ed., 2d ed. 2000), p. 4.

  72. Daubert, 509 U.S. at 592–593.

  73. Ibid., at 594–595 (emphasis added).

  74. See ibid., at 598 (Rehnquist, C.J., dissenting).

  75. These are, 1) The falsifiability, or testability, of the theory guiding the technique used to reach the offered conclusion, 2) publication and peer review of the theory, 3) any known or potential rate of error of the technique, and 4) general acceptance within the relevant scientific community. See ibid., at 593–594.

  76. There are several references to the presumption toward admissibility and the permissive nature of an admissibility decision (ibid., at 588–589).

  77. Ibid., at 588.

  78. Daniel Capra, ‘The Daubert Puzzle’,Georgia Law Review 32 (1998): 702;Wright and Mill Treatise, §6266 at Note 5.

    Google Scholar 

  79. Breyer, “Introduction”, p. 4.

  80. See, for example Michael H. Graham, ‘The Expert Witness Predicament: Determining “Reliable” under the Gatekeeping Test ofDaubert, Kumho and Proposed Amended rule 702 of the Federal Rules of Evidence’,Miami Law Review 54 (2000): 317 at 324, as well as Capra, ‘The Daubert Puzzle’.

    Google Scholar 

  81. Michael Green, presentation to the Society for Epidemiological Research, June 19, 2002.

  82. Michael Gottesman of Georgetown Law Center, who argued bothDaubert andJoiner for plaintiffs before the Supreme Court, notes that before the mid-1980s there wereno civil appellate court cases in which exert witnesses had been excluded because of admissibility reviews (presentation to ‘Science, Courts and Protective Justice’, Georgetown University Law Center, February 27, 2003).

  83. Wright and Mill Treatise, §6266, Text and Notes at Notes 57–73; Cranor et al., ‘Judicial Boundary Drawing’, pp. 9–14; and Capra, ‘The Daubert Puzzle’, p. 754.

  84. D. Michael Risinger, ‘Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left on the Dock?’Albany Law Review 64 (2000): 99–152. The criminal-tort asymmetric treatment of expert testimony is increasingly discussed at conferences as well.

    Google Scholar 

  85. Green,Bendectin, p. 335.

  86. Ibid.

  87. Ibid., p. 330 (quoting Peter Huber’s,Galileo’s Revenge: Junk Science in the Courtroom (New York: Basic Books, 1991), pp. 111–129).

  88. Ibid., p. 330 (quoting an Orrefice speech).

  89. Ibid. (quoting Howard Denemark, ‘Improving Litigation Against Drug Manufacturers for Failure to Warn Against possible Side Effects: Keeping Dubious Lawsuits from Driving Good Drugs Off the Market’,Case Western Reserve Law Review 40 (1987): 427–438).

  90. Ibid., p. 337.

  91. Ibid., p. 19.

  92. Ibid., p. 20.

  93. Michael J. Saks, “Do We Really Know Anything about the Behavior of the Tort Litigation System — and Why Not?’Pennsylvania Law Review 140 (1992): 1184–1185.

    Google Scholar 

  94. Filings that increased faster included federal government suits for recovery of overpayments to individuals or firms, social security cases and contract litigation, yet these areas were not “in crisis” (Saks, ibid., ‘:, pp, 1200–1201).

    Google Scholar 

  95. Green,Bendectin, p. 336.

  96. Ibid., p. 336.

  97. Ibid., p. 337 (quoting a standard textbook on the effects of drugs on the fetus).

  98. Ibid., p. 330 (emphasis added).

  99. Ibid. p. 339.

  100. Ibid.

  101. Ibid., p. 340.

  102. Ibid., p. 341.

  103. Ibid.

  104. Berger, ‘Eliminating General Causation’, p. 2135.

  105. Green,Bendectin, p. 341. What would constitute appropriate administrative costs is a much vexed question that would have to address a number of different institutions to put it in context.

  106. General Elec. Co. v. Joiner, 522 U.S. 136 (1997); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).

  107. Joiner v. General Electric Co., 864 F. Supp. 1310 (N.D. Georgia, 1994).

  108. Joiner v. General Electric Co., 78 F.3d 524 (11th Cir., 1996)

  109. General Elec. Co. v. Joiner 522 U.S. 136, quoting Spring Co. v. Edgar, 99 U.S. 645, 658, 25 L.Ed. 487 (1879).

  110. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, at 400 (1989) quoting Anderson v. Bessemer City, 470 U.S. 564, 573–574.

    Google Scholar 

  111. Carmichael v. Samyang Tire, Inc., 131 F.3d 1433 (1997).

  112. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).

  113. Ibid., at 153.

  114. Ibid., at 152.

  115. Ibid., p. 153.

  116. Susan Haack, ‘An Epistemologist in the Bramble-Bush: At the Supreme Court with Mr. Joiner’,Journal of Health Politics, Policy and Law 26 (1999): 231–232.

    Google Scholar 

  117. Ibid.: p. 232.

    Google Scholar 

  118. Ibid..

    Google Scholar 

  119. Ibid..

    Google Scholar 

  120. Ibid.: pp. 233, 235.

    Google Scholar 

  121. Breyer, ‘Introduction’,Federal Reference Manual on Scientific Evidence, p. 4.

  122. However, even this characterization conflates the admissibility of one party’s evidence with the legal insufficiency of that party’s evidence vis-à-vis the other party. See Sanders, “Scientific Validity,” for discussion of this point.

  123. Richard Lempert, University of Michigan Law School, presentation at “Good Science or Junk Science: Should Courts Decide?” Wayne State University Law School and Philosophy Department, September, 10–11, 2002. (The claim that plaintiffs’ evidence inJoiner was not reliable may be in error; it is currently under investigation by the author and David A. Eastmond as part of research on NSF Grant #99-10952. In particular the neo-natal mice studies so quickly dismissed by the district court and by the Supreme Court appear to be much better forms of evidence than they suggested (Research underway at the University of California, Riverside).)

  124. Ibid.

  125. Carl F. Cranor, ‘Daubert and the Acceptability of Legal Decisions’, forthcoming in theLaw and Philosophy Newsletter (2004) and in theJournal of Philosophy, Law and Science (2004).

  126. Daubert, 509 U.S. at 592–593 (emphasis added).

  127. Paul Thagard, p. xv.

  128. Ibid. (He also offers a critique of logical and postmodern explanations of new scientific knowledge, providing an alternative to both. (Ibid., pp. 4, 240–241) There is much here that might interest philosophers of science, but it is not pertinent to this discussion.

  129. See, for example, Cranor and Eastmond, ‘Scientific Ignorance’, pp. 128–145, for the most recent work.

  130. Thagard, pp. 101–147.

  131. Gilbert Harman, ‘The Inference to the Best Explanation’,Philosophical Review 74 (1994): 89–90, and Larry Wright,Critical Thinking. Thagard adopts much of this view, indicating that scientists “can infer that the factor causes the disease if this hypothesis is part of the best explanation of the full range of evidence” … [and that the factor that is identified as causing] “the disease must be a better explanation of the correlation between the factor and the disease than the assertion that some other cause is responsible for both the factor and the disease” (Thagard, p. 129).

    Google Scholar 

  132. Brian Skyrms,Choice and Chance: An Introduction to Inductive Logic (Belmont, CA: Dickenson Publishing Copany, Inc., 1966).

    Google Scholar 

  133. Skyrms,Choice and Chance, p. 107.

  134. Skyrms,Choice and Chance, p. 107. Skyrms’ account of “conditioning properties” may in fact be somewhat wider than “possible explanations” endorsed by other views, but this is not germane to our discussion (I owe this point to Larry Wright).

  135. Brian Skyrms,Choice and Chance, pp. 81–87.

  136. Thagard, 131.

  137. See, for example, Thagard, p. 129, Skyrms,Choice and Chance, p. 107 and Hutchison and Lane, p. 10, for writers from different methodological perspectives that agree on this point. Tom A. Hutchinson and David A. Lane, ‘Standardized Methods of Causality Assessment of Suspected Adverse Drug Reactions’,Journal of Clinical Epidemiology 42 (1989), put this point especially strongly, “A causality assessment method must respect Fisher’s fundamental rule of uncertain inference —never throw information away. This is, any fact, theory or opinion that can affect an evaluator’s belief that [a particular exposure] caused an adverse event E must be incorporable by the method into the ‘state of information’ on which the assessment is based” (p. 10).

  138. See for example, Larry Wright,Practical Reasoning (New York: Harcourt, Brace Jovanovitch, Inc., 1989), p. 104, and Wright,Critical Thinking, pp. 206–217.

    Google Scholar 

  139. McCormick on Evidence, pp. 541–542 andThe Federal Rules of Evidence, section 401 (“evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”)

  140. Thagard, p. 102.

  141. Austin Bradford Hill, ‘The Environment and Disease: Association or Causation?’ in Sander Greenland (ed.),Evolution of Epidemiologic Ideas (Chestnut Hill, Mass: Epidemiology Resources, Inc., 1987), pp. 15–24. See also, Douglas Weed, ‘Underdetermination and Incommensurability in Contemporary Epidemiology’,Kennedy Institute of Ethics Journal 7 (1997): 107–114.

    Google Scholar 

  142. See, for example, Tom A. Hutchinson and David A. Lane, ‘Standardized Methods of Causality Assessment of Suspected Adverse Drug Reactions’,Journal of Clinical Epidemiology 42 (1989): 12.

    Article  Google Scholar 

  143. Thagard, p. 104.

  144. Otherdesiderata — not necessary conditions — for assessing epidemiological studies include whether the hypothesis is biologically plausible, whether a study is consistent with other studies, whether there is evidence of a dose response relationship, and whether the time sequence between exposure and disease are biologically plausible, as well as how strong the association is. (See Austin Bradford Hill, ‘The Environment and Disease’, for further discussion.)

  145. Thagard, p. 107.

  146. Ibid., p. 109 (emphasis added); see also, pp. 112, 120, 124, 132.

  147. Ibid., p. 109.

  148. Ibid., p. 120 (taking from about 1498 to the 20th century to understand the mechanism of scurvy).

  149. Kenneth S. Santone and Garth Powis, ‘Mechanism of and Tests for Injuries’, in W.J. Hayes, Jr. and E.R. Laws, Jr. (eds.),Handbookof Pesticie Toxicology (1991) (scientists know the mechanisms of some beneficial and some harmful effects of aspirin but not others (p. 169)).

  150. Thagard, pp. 118–134, and Cranor and Eastmond, ‘Scientific Ignorance’, pp. 28–45, for a summary of kinds of evidence that consensus scientific bodies frequently draw upon for making causal judgments. For a general discussion of kinds of evidence see the International Agency for Research on Cancer, ‘Preamble to the Monograph Series’, at http://193.51.164.11/monoeval/preamble.html.

  151. Thagard, p. 198 (For the importance of social processes in shaping causal knowledge in medicine, see generally Thagard, pp. 167–198).

  152. Kenneth R. Foster and Peter W. Huber,Judging Science: Scientific Knowledge and the Federal Court (Cambridge, MA and London: The MIT Press, 1997), pp. 241–245.

    Google Scholar 

  153. Cranor and Eastmond, ‘Scientific Ignorance’, pp. 28–34. Although the examples are taken from federal jurisdictions, Daubert has had influence beyond federal circuits, since at least one-third of the state courts are following Daubert or adopting more stringent standards of review. Many of the remainder are not following Daubert, some even explicitly and virulently rejecting it. State courts may seeFrye as either a more stringent or less stringent standard for reviewing expert testimony. (See, for example, Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63 (2002).)

  154. Cranor and Eastmond, ‘Scientific Ignorance’, pp. 34–45.

  155. For example, in Casey v. Ohio Medical Products, Inc., 877 F. Supp. 1380 (N.D. Cal 1995), the district court judge did not permit plaintiff to rely upon case studies and this court’s reasons have been perpetrated and perpetuated throughout the legal system (but not a matter of legal precedent), very likely resulting in mistakes.

  156. Wade-Greaux v. Whitehall Lab., Inc., 874 F. Supp. 1441 at 1450 (D.V.I.),aff’d, 46 F.3d 1120 (3d Cir. 1994).

  157. Cranor and Eastmond, ‘Scientific Ignorance’, pp. 34–39.

  158. Cranor et al., ‘Judicial Boundary Drawing’, pp. 31–32 and 49–55.

  159. See Chambers v. Exxon Corp., 81 F. Supp. 2d 661 (M.D. La. 2000) (citing Brock v. Merrell Dow Pharms., Inc., 874 F.2d 307, 311 (5th Cir. 1989)),modified by, 874 F.2d 307, 311 (5th Cir. 1989); Wade-Greaux v. Whitehall Labs., Inc., 874 F. Supp. 1441 (D.V.I. 1994). See generally Green,Bendectin at 311–317; Cranor et al., ‘Judicial Boundary Drawing,’ at 31–32; Lucinda M. Finley, ‘Guarding the Gate to the Courthouse: How Trial Judges are Using their Evidentiary Screening Role to Remake Tort Causation Rules’, 49DePaul L. Rev. 335 (1999) at 352–356 (noting that courts have adopted epidemiological thresholds in silicone breast implant cases).

    Google Scholar 

  160. Cranor et al., ‘Judicial Boundary Drawing’, pp. 33–49.

  161. Hill, ‘The Environment and Disease’, p. 19. One of Hill’s consideration (a cause must temporally precede the effect) is a necessary condition.

  162. Thagard, pp. 103–104.

  163. Green,Bendectin, pp. 311–317 (arguing that Bendectin and Agent Orange cases should not be generalized to other toxic agents). In both the Bendectin and Agent Orange cases there was particularly good, one might even say decisive (at the time) human evidence, which trumped other kinds of evidence pointing in other directions. See also, Michael D. Green, “Legal Theory: Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation,Northwester University Law Review 86 (1992): 678–681 [hereinafter Green, “Expert Witnesses”].

    Google Scholar 

  164. Green, ‘Expert Witnesses’; Cranor et al., ‘Judicial Boundary Drawing’, pp. 31–32; Lucinda Finley, ‘Guarding the Gate to the Courthouse: How Trial Judges are Using their Evidentiary Screening Role to Remake Tort Causation Rules’,DePaul Law Review 49 (1999): 352–356.

    Google Scholar 

  165. Cranor and Eastmond, ‘Scientific Ignorance’, pp. 30, 34–39 (citing studies from the International Agency for Research on Cancer, the U.S. National Toxicology Program, and the U.S. Environmental Protection Agency.

  166. Green,Bendectin, p. 316; Cranor and Eastmond, ‘Scientific Ignorance’, p. 30.

  167. Green,Bendectin, p. 316.

  168. Thagard, p. 102.

  169. Ibid., p. 102.

  170. See, for example, James Huff, ‘Chemicals and Cancer in Humans: First Evidence in Experimental Animals’,Environmental Health Perspectives 100 (1993); 204 [hereinafter referred to as Huff, ‘Chemicals and Cancer’].

    Article  Google Scholar 

  171. IARC,Overall Evaluations of Carcinogenicity to Humans: Probably Carcinogenic to Humans (last modified Aug. 9, 2000) <http://193.51.164.11/monoeval/crthgr02a.html>. See also Cranor and Eastmond, ‘Scientific Ignorance’, pp. 34–45 and notes therein, for further discussion of this point.

  172. Black v. Food Lion, Inc., 171 F.3d 308, 314 (5th Cir. 1999). (“The underlying predicates of any cause-and-effect medical testimony are that medical science understands the physiological process by which a particular disease or syndrome develops and knows what factors cause the process to occur. Based on such predicate knowledge, it may then be possible to fasten legal liability for a person’s disease or injury.”) In Schudel v. General Electric Co., 120 F.3d 991, 997 (9th Cir. 1997), the court suggested a similar reason for rejecting evidence, although it was not central to its rejection.

  173. Thagard, pp. 109–112.

  174. Cranor and Eastmond, ‘Scientific Ignorance’, pp. 38–39.

  175. Santone & Powis, ‘Mechanism of and Tests for Injuries’, p. 169.

  176. Thagard, pp. 109, 112.

  177. “In domains in which causal knowledge is rich, there is a kind of feedback loop in which more knowledge about causes leads to more knowledge about mechanisms, which leads to more knowledge about causes. But in less well-understood domains, correlations and the consideration of alternative causes can get causal knowledge started in the absence of much comprehension of mechanisms.” (Ibid., p. 109.)

  178. Santone and Powis, ‘Mechanism of and Tests for Injuries’, p. 169.

  179. Green, ‘Expert Witnesses’, pp. 679–681.

  180. Cranor et al., ‘Judicial Boundary Drawing’, p. 54 note 245.

  181. Thagard, p. 141.

  182. Consensus scientific bodies such as the International Agency for Research on Cancer or the National Toxicology Program have representative views.

  183. For example, see Huff, ‘Chemicals and Cancer’, pp. 201, 204 (stating that the array and multiplicity of carcinogenic processes are virtually common among mammals, for instance between laboratory rodents and humans). He adds, “the more we know about the similarities of structure and function of higher organisms at the molecular level, the more we are convinced that mechanisms of chemical toxicity are, to a large extent, identical in animals and man.” (Id.) The EPA and the Federal Judicial Center Manual on Scientific Evidence concur (See Environmental Protection Agency, “Proposed Guidelines for Carcinogen Risk Assessment,” 61Federal Register, p. 17,977 (1996), (“[T]here is evidence that growth control mechanisms at the level of the cell are homologous among mammals, but there is no evidence that these mechanisms are site concordant [i.e., must be in the same tissue in rodents and humans].”); Bernard D. Goldstein and Mary Sue Henifin, ‘Reference Guide on Toxicology’, inReference Manual on Scientific Evidence (Federal Judicial Ctr. ed., 2d ed. 2000), at 419.

    Google Scholar 

  184. See Blum v. Merrell Dow Pharmaceuticals for a court’s discussion of this point.

  185. Cranor and Eastmond, “Scientific Ignorance’, pp. 35–39.

  186. Ibid., pp. 41–45.

  187. Cranor et al., ‘Judicial Boundary Drawing’, p. 55. See also Blum v. Merrell Dow Pharmaceuticals, Inc. 33 Phila. Co. Rptr. 193, for a judicial discussion of how even pharmaceutical firms’ use of controlled animal studies assist understanding and correcting the results of human studies.

  188. OTA,Identifying, pp. 126–127 and Faustman and Omenn, ‘Risk Assessment’, inCasarett and Doull’s Toxicology, p. 86 (“An agent’s structure, solubility, stability, pH sensitivity, electrophilicity, volatility, and chemical reactivity can be important information for hazard identification. Historically, certain key molecular structures have provided regulators with some of the most readily available information on the basis of which to assess hazard potential.” (Ibid.)

  189. J. Ashby and R. W. Tennant, “Chemical Structure, Salmonella Mutagenicity and Extent of Carcinogenicity as Indicators of Genotoxic Carcinogenesis among 222 Chemicals Tested in Rodents by the U.S. NCI/NTP’,Mutation Research 204 (1988): 17–115; David A. Eastmond, Chair, Department of Environmental Toxicology, University of California, Riverside, personal communication.

    Article  Google Scholar 

  190. The Fifth Circuit Court of Appeals has argued that not even lie detector tests are subject toper se exclusions (United States v. Posado, 57 F.3d 428 (5th Cir. 1995).

  191. Strom, Brian L. ed.,Pharmacoepideimology, 3rd ed. (New York: John Wiley & Sons LTD, 2000), p. 77.

    Google Scholar 

  192. Carl F. Cranor, ‘Justice, Inference to the Best Explanation and the Judicial Evaluation of Scientific Evidence’, forthcoming inTopics in Contemporary Philosophy: Vol. II: Law and Social Justice, ed. Joseph Keim Campbell, Michael O’Rourke, and David Shier (Cambridge, MA: MIT Press, 2004), for further discussion of these points [hereinafter referred to as Cranor, ‘Justice’], and Carl F. Cranor and David Strauss, ‘Case Studies in Law and Science’ (forthcoming).

    Google Scholar 

  193. The National Vaccine Injury Compensation Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub.L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C.A. §§300aa-1 et seq. These cases are not traditional torts, and utilize somewhat different rules for the admissibility of expert testimony, but often citeDaubert.

  194. Cranor and Strauss, ‘Case Reports’.

  195. Casey v. Ohio Medical Products, 877 F. Supp 1380 at 1385; Brumbaugh v. Sandoz Pharmaceuticals F. Supp. 2d 1153, 1156 (D. Montana, 1999); Haggerty v. Upjohn Co. 950 F. Supp. 1160, 1165 (S.D. Florida, 1996).

  196. Eathleen R. Stratton, Cynthia J. Howe, and Richard B. Johnston, ed.,Adverse Events Associated with Childhood Vaccines: Evidence Bearing on Causality (Washington, D.C.: (National Institute of Medicine) National Academy Press, 1994), 23–24; Hutchinson, Tom A. and David A. Lane, ‘Assessing Methods for Causality Assessment of Suspected Adverse Drug Reaction’,Journal of Clinical Epidemiology 42 (1989a): 10–11, and a related quite thoughtful article by Michael S. Kramer and David a. Lane, ‘Causal Propositions in Clinical Research and Practice,’Journal of Clinical Epidemiology 45 (1992): 639–649.

    Google Scholar 

  197. Stratton et al.,Adverse Events, pp. 23–24.

  198. Gerald Klatskin and Daniel V. Kimberg, ‘Recurrent Hepatitis Attributable to Halothane Sensitization in an Anesthetist’,The New England Journal of Medicine 280 (March 6, 1969): 515.

    Article  Google Scholar 

  199. Stratton et al.,Adverse Events, p. 86.

  200. See Renate D. Kimbrough, ‘Pathological Changes in Human Beings Acutely Poisoned by Dimethylnitrosamine’,Banbury Report No. 12; Ronald C. Shank and Deborah C. Herron, ‘Methylation of Human Liver DNA After Probable Dimethylnitrosamine Poisoning’,Nitrosamines & Human Cancer, 153–159 (Peter N. Magee ed., 1982); Berton Roueche, ‘The Lemonade Mystery’,Saturday Evening Post, May–June 1982, at 58.

  201. Henry Falk, John L. Creech, Jr., Clark W. Heath, Jr., Maurice N. Johnson and Marcus M. Key, ‘Hepatic Disease Among Workers at a Vinyl Chloride Polymerization Plant’,JAMA 230 (Oct. 7, 1974): 59; Clark W. Heath, Jr., Henry Falk and John L. Creech, Jr., ‘Characteristics of Cases of Angiosarcoma of the Liver Among Vinyl Chloride Workers in the United States’,Annals of the New York Academy of Sciences (1975): 231.

    Article  Google Scholar 

  202. The rejection of infant mice studies was far more critical and disturbing than it might seem to lay people. There is a thirty to forty year tradition in toxicology of using neo-natal mice studies to identify carcinogens, both initiating agents and agents that promote the development of tumors initiated by some other means (precisely the argument made inJoiner). For a small sample of such results, see, Allan H. Conney, ‘Induction of Microsomal Enzymes by Foreign Chemicals and Carcinogenesis by Polycyclic Aromatic Hydrocarbons: G.H.A. Clowes Mermorial Lecture’,Cancer Research 42 (1982): 4875–4917, International Agency for Research on Cancer, ‘Polychlorinated Biphenyls’,Monograph Series, Supplement 7 (1987): 322 R. Michael McClain et al., ‘Neonatal Mouse Model: Review of Methods and Results’,Toxicologic Pathology (Suppl.) 29 (2001): 128–137, Samuel M. Cohen, ‘Alternative Models for Carcinogenicity Testing: Weight of Evidence Evaluations across Models’,Toxicologic Pathology (Suppl.) 29 (2001): 183–190. The author and a toxicologist, David A. Eastmond, have a paper in progress on this issue.

    Google Scholar 

  203. General Elec. Co. v. Joiner, 522 U.S. at 146–147.

  204. General Elec. Co. v. Joiner, 522 U.S. at 152–153.

  205. Ibid.

  206. Ibid., at 154.

  207. Sometimes courts appear to believe that the assessment of therisks of contracting a disease is a different task from assessing thecauses of disease, and, thus, claim that weight of the evidence methodology used for risk assessment should not be utilized to assesscausation. (Allen v. Pennsylvania Engineering Corp., 102 F.3d 194, 197 (5th Cir. 1996).) Scientists themselves reject such a distinction. (David A. Eastmond, Chair, Environmental Toxicology, University of California, Riverside, personal communication.)

  208. General Electric v. Joiner, 522 U.S. at 151–155 (Stevens, dissenting opinion).

  209. Scientists and physicians involved in assessing adverse events from immunization propose a method for assessing vaccine-caused adverse events that is “based on the best available information, [such that] [m]aximum use is made ofall available information and nothing is arbitrarily discarded.” Gerald M. Fenichel, David A. Lane, John R. Livengood, Samuel J. Horwitz, John H. Menkes and James F. Schwarrtz, ‘Adverse Events following Immunication: Assessing Probability of Causation’,Pediatric Neurology 5 (1989): 287–290, at 290.

    Article  Google Scholar 

  210. Tom A. Hutchinson and David A. Lane, ‘Standardized Methods of Causality Assessment of Suspected Adverse Drug Reactions’,Journal of Clinical Epidemiology 42 (1989): 10 (emphasis added).

    Article  Google Scholar 

  211. See, Haack, ‘An Epistemologist in the Bramble Bush’, for some discussion of the puzzle metaphor.

  212. Dauber v. Merrell Dow Pharm., Inc., 509 U.S. at 594–595 (emphasis added).

  213. General Elec. Co. v. Joiner, 522 U.S. at 145–146.

  214. Ibid., at 146.

  215. See, for example, Skyrms, p. 10, Wright,Critical Thinking, pp. 374–382, Thagard, p. 113, and Cranor, ‘Justice’, for further discussion of these points.

  216. General Elec. Co. v. Joiner, 522 U.S. p. 520 (Justice Breyer concurring opinion (emphasis added)).

  217. Ibid.

  218. Carl F. Cranor, “Daubert and the Acceptability of Legal Decisions.”

  219. See, for example, Michael D. Green, ‘Expert Witnesses and Sufficiency of Evidence’, 86NW. U. L. Rev. 643, 697 (1992), at 687 (The tort law is “indifferent as between a plaintiff’s erroneous recovery [a legal false positive] and a defendant’s erroeous non-liability [a legal false negative]”. Santosky v. Kramer, 455 U.S. 745, 755 (1982) (adopting the standard set forth in Addington that “in any given proceeding, the … standard of proof … reflects not only the weight of the private and the public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants”); Addington v. Texas, 441 U.S. 418, 423 (1979) (explaining that the preponderance of the evidence requires litigants to “share the risk of error in roughly equal fashion”).

  220. Ibid.

  221. See section II.

  222. Cranor,Regulating, pp. 8, 49–82; and Carl F. Cranor, ‘Science and the Law in the U.S.: Some Philosophic Issues and Recent Legal Trends’,Politeia: Rivista di Etica e Scelte Pubbliche, Anno XIX. N. 70 (October 2003).

  223. W. Page Keeton, Dan B. Dobbs, Robert E. Keeton and David Owen,Prosser and Keeton on Torts, 5th ed. (St. Paul, MN: West Publishing Co., 1984), pp. 165–168.

    Google Scholar 

  224. Green, ‘Expert Witnesses’ and Cranor,Regulating, pp. 30–48 (sometimes this relationship is mathematical and sometimes more empirical).

  225. Magistrini v. One Hour Martinizing, 180 F. Supp. 2d 584–613 (2002), and personal communication, Gerson Smoger, Smoger and Associates, Oakland, California, a plaintiffs’ attorney.

  226. Soldo v. Sandoz Pharmaceuticals Corporation, 2003 WL 355931 (W.D.Pa); See also Sanders, “Scientific Validity,” for discussion of this point.

  227. Joe Cecil, Director of Research, Federal Judicial Center, personal communication.

  228. 35 F.3d 717 (3d Cir. 1994), cert. denied, 513 U.S. 1110 (1995).

  229. In re TMI Litigation, 193 F.3d 613, 664 (3d Cir., 1999).

  230. Ibid.

  231. Ibid. (quoting Heller v. Shaw Industries, Inc., 167 F.3d 146, 153 (3d Cir. 1999)).

  232. Ibid., at 666.

  233. Ibid., at 665 (quoting In re Paoli Railroad Yard PCB Litigation, 35 F3d 717 at 744) (emphasis added).

  234. Ibid. And, “[t]he test of admissibility is not whether a particular opinion has the best foundation, or even whether the opinion is supported by the best methodology of unassailable research. Rather, the test is whether the ‘particular opinion is based on valid reasoning and reliable methodology.’ … The goal is reliability, not certainty. Once admissibility has been determined, then it is for the trier of fact to determine the credibility of the expert witness.” (Ibid. (quoting Kannankeril v. Terminix International Inc., 128 F.3d 802 (3d Cir. 1997).)

  235. Ibid.

  236. Ibid., at 665.

  237. Cranor, ‘Daubert and the Acceptability of Legal Decisions’.

  238. Kumho Tire v. Carmichael, 526 U.S. at 523.

  239. Green,Bendectin, p. 317, suggests that a “decision based on the preponderance of theavailable evidence, rather than imposing an evidentiary threshold, would be closest in keeping with the role of the civil justice system.” Thus where mature epidemiological evidence does not exist “analysis of the sufficiency of plaintiff’s evidence … would begin by considering the universe of available evidence of toxicity.” (Ibid., 316) This proposal may discomfit some because “plaintiffs with relatively thin and attenuated evidence” could bring a case to trial, “[b]ut the reality is that stronger and better evidence is unavailable (through no fault of anyone) and a decision based on the preponderance of the available evidence, rather than imposing an evidentiary threshold, would be closest in keeping with the role of the civil justice system.” (Ibid., 317) For other suggestions see, Cranor and Eastmond, ‘Scientific Ignorance’, p. 47.

  240. Cranor and Eastmond, ‘Scientific Ignorance’, pp. 34–45.

  241. Daubert, pp. 595–596.

  242. Cranor and Eastmond, ‘Scientific Ignorance’, pp. 45–47.

  243. Berger, ‘Eliminating General Causation’, pp. 2140–2144.

  244. Cranor and Eastmond, ‘Scientific Ignorance’, pp. 45–47.

Download references

Author information

Authors and Affiliations

  1. Department of Philosophy, University of California, 92521, Riverside, CA, USA

    Carl F. Cranor

Authors
  1. Carl F. Cranor
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Carl F. Cranor.

Additional information

This paper has been written with research support from National Science Foundation Grant #99-10952, a grant from the University of California Toxic Substances Research and Teaching Program, and a University of California intramural grant. Aspects of this presentation are taken from a forthcoming book on toxic tort law and science. I am indebted to Sharon Lloyd, Larry Wright, David Strauss, and two anonymous referees from Law and Philosophy for suggestions that improved the discussion in this paper.

Rights and permissions

Reprints and permissions

About this article

Cite this article

Cranor, C.F. The science veil over tort law policy: How should scientific evidence be utilized in toxic tort law?. Law Philos 24, 139–210 (2005). https://doi.org/10.1007/BF02743251

Download citation

  • Accepted:

  • Issue Date:

  • DOI: https://doi.org/10.1007/BF02743251

Keywords

Search

Navigation