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Role of Scientific Method in Public Policy Analysis

Role of Scientific Method in Public Policy Analysis. The Admissibility of Scientific Evidence & Expert Witnesses. Varying Roles of Expertise. Legislation Regulation Litigation. Some Rules of Evidence. Burden of proof & going forward Relevance (to proposition) Material (to issue at trial)

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Role of Scientific Method in Public Policy Analysis

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  1. Role of Scientific Method in Public Policy Analysis The Admissibility of Scientific Evidence & Expert Witnesses

  2. Varying Roles of Expertise Legislation Regulation Litigation

  3. Some Rules of Evidence • Burden of proof & going forward • Relevance (to proposition) • Material (to issue at trial) • Hearsay exclusion & exceptions • Business records, admissions, excited/dying utterances, learned treatises … • Best Evidence • Foundation: chain of custody • Other issues: criminal vs. civil, demonstrative, judicial notice, impeachment, confrontation/cross-exam & impeachment, privelege …

  4. Frye v. U.S. Facts: 1923 2nd degree murder defense offered expert to validate polygraph (blood pressure-type) to exonerate defendant Issue: What constitutes acceptable scientific methodology to support expert testimony? Holding: methodology underlying expert’s evidence must be sufficiently established to gain general acceptance in the particular field

  5. Frye v. U.S. Frye general acceptance standard: • ID witnesses’ expertise in particular field of science (education, experience, contribution) • Determine whether expert’s methods, theories & conclusions satisfy general acceptance standard

  6. Frye’s Implications • Experts & scientific evidence excluded unless expert qualified & testimony satisfies general acceptance standard • Consensus of scientific community required from peer review, pubs, criticism, replication & reliability • Novel theories generally inadmissible • Judges relieved of deep analysis • Still valid standard in dozen states +/- & continuing role in ’90s Daubert trilogy

  7. Daubert v. Merrell Dow Pharma Facts: Admissibility of 8 experts re-analysis of epidemiological statistics as well as animal & toxicological studies linking Bendectin to birth defects Issue: Are un-published expert analyses admissible to show scientific causation? Holding: reversed & remanded Discussion: Frye rejected as sole admissibility standard

  8. Daubert v. Merrell Dow Pharma Discussion: Judges must serve as ad hoc admissibility reliability gatekeepers • Is/can the science (be) tested? • Subjected to peer review & publication • What is known or potential error rate • What is general acceptance (FRYE lives) in relevant scientific community?

  9. GE v. Joiner Facts: GE electrician claimed lung cancer resulted from jobsite PCB exposure Issue: Is there analytical gap? YES Holding: Expert’s conclusions & basis for judgment must flow rationally from purported methodology Discussion: Expert’s insistence of causation must be demonstrated with full explication of logic, premises, studies, links shown in studies: expert report susceptible to support, explanation & defense

  10. Carmichael v. Kumho Tire Facts: Kumho blewout on Ford mini-van causing overturn, death, injuries Issue: Tire failure analysis sufficiently scientific Holding: Trial judge excluded tire expert testimony Discussion: Daubert applies to all experts (technical, specialized knowledge) not just “scientists;” increases judge’s scrutiny of experts & methodologies; Daubert applies more flexibly – not checklist; appeal of trial judge allowance tested by “abuse of discretion” not “de novo” std

  11. Trilogy Observations • Jury, not judge, must evaluate conflicting expert & scientific evidence • Judge is gatekeeper on rigor, cross-exam, judge instr. & BofP also key • Formal Daubert hearings not always necessary • Kumho too difficult for judges to distinguish scientific from other technical disciplines

  12. Some key emerging expertises • Statistics, multiple-regression • Survey Research • Estimation of economic damages • Epidemiology • Toxicology • Engineering practice • DNA • Medical diagnosis & treatment • Environmental & workplace exposure • Employment issues

  13. (@ least) Three Challenges • Dissemination of Tort databases ventilates experts’ views • Expertise assumes varying roles in law & regulation • Reform of tort/product liability/regulation could undercut many key

  14. #1: Dissemination • National Tort Data Project • NAS/NRC funded, field & empirical methods • Database for defensive use by AGs, DOTs • Traditionally rare & reputational: only secret files from insurance & class action • Major push to profile experts • Increasingly well-organized, exhaustive • Largely intended for risk mgt feedback • Grave fears that plaintiff’s bar might access

  15. Dissemination • Scrutiny of prior testimony arms X-exam to effectively depose, disparage • Increases stakes of 1st testimony • Every negative X-exam impacts future fees • Eventually IDs potentially adverse experts • Reduces ranks of all experts • Isolates ideological foes • Polarizes experts, not unlike plaintiff-defense bar

  16. #2: Varying Roles of Expertise Legislation Regulation Litigation

  17. #3: Reform Could Undercut Need for Expertises • Continuing drive towards reform of tort, product liability & regulatory programs likely to reduce needs for well-paid experts (also: plaintiff’s bar, defense bar, judges, catastrophic insurance coverage) • 80s tort crisis is an instructive history • Deserves serious scholarly focus! • Competition lowered premiums, investment returns covered payouts until stk mkt dive • Coverages w/drawn

  18. Tort Law is a Pendulum • 19th Century: many limiting principles prevented liability • Fellow servant, proximate cause, privity • Post 1920 torts & product liability experienced steady expansion • New liability theories • New tortfeasor duties • ID new risks

  19. More 20th Century Expansion • Recognize scientific causal links to injury • New forms of injury • Economic damages • Non-economic damages • Economists forcing a merger? • New theories of injury valuation • Public opinion expanding acceptability

  20. Focci of Tort Reforms • Plaintiff • Injuries • Defendant • Duties • Counsel • Forum • Proofs

  21. Future of Reform? • Slow, pragmatic identification of liability risks & connection to a litigation process • Significant federalism overtones • Preemption: “It only takes 270!” • Conservative S.Ct. states righters • Many reforms invalidated in 1990s • Over 1/2 States Courts Invalidate Some Reforms • State & Federal Constitutional Bases for Invalidation: • Right to remedy, court open • Due process, equal protection • Most Vulnerable Reforms: Damage caps, statutes of repose, collateral source rule, specific industry exemptions

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