SCIENCE IN THE COURTS

1. SCIENCE IN THE COURTS Climate Change and Other Issues Robert Wyman and Ernest Getto, Latham & Watkins October 1, 2010

2. Science in the Court: WHY THERE?

3. I. Scientific issues permeate the law • Climate change • Pharmaceuticals • Chemical exposures (“toxic torts”) • CERCLA • IP – patents • Criminal law – DNA • Land Use – EIS • Environmental catastrophes

4. II. Judges Need Help: Federal Reference Manual “In this age of science, science should expect to find a warm welcome, perhaps a permanent home, in our courtrooms. The reason is a simple one. The legal disputes before us increasingly involve the principles and tools of science. Proper resolutions of those disputes matters not just to the litigants, but also to the general public—those who live in our technologically complex society and whom the law must serve. Our decisions should reflect a proper scientific and technical understanding so that the law can respond to the needs of the public” ~ Stephen Breyer, Associate Justice of the Supreme Court of the United States

5. III. How does science get into evidence • Expert Testimony • Lay Testimony • Court appointed experts • Government Reports • Peer Reviewed Literature

6. IV. What standards are applied to expert testimony? • Frye Rule – “general acceptance” (1923) 1. Applied for decades in federal and state courts 2. Lead to confusion, inconsistent rulings

7. Federal Courts - Daubert, Joiner and Kumho (1993-1999) 1. U.S. Supreme Court rewrote the rules 2. Courts must be “gatekeepers” 3. Scientific theory or technique must be “reliable”

8. Federal Courts - Daubert, Joiner and Kumho (1993-1999) (continued) 4. Whether the scientific theory/ technique -- “can be (and has been) tested” -- “has been subjected to peer review and publication” -- “has a known or potential rate of error and the existence and maintenance of standards controlling the technique’s operation” -- “has widespread acceptance” -- “employs standards controlling the technique’s operation”

9. California 1. “Testimony in the form of an opinion is limited to such an opinion as is based on matter that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates.”

10. California (continued) 2. The court “must exclude” expert testimony that does not comply with this 3. The expert opinion must be based on facts and not speculation

11. Qualifications of Expert 1. “Knowledge, skill, training, experience, or education.” 2. Needs only one trait 3. Prior experience as an expert witness, standing alone, is insufficient 4. Recent increased scrutiny of experts due to fabricating or inflating qualifications

12. V. Does expert testimony that there is climate change caused by human conduct get into evidence? • Climate change happening 1. theory tested? 2. peer-reviewed publication? 3. error rate? 4. widespread acceptance? 5. standards? 6. speculation?

13. Climate change caused by human conduct 1. theory tested? 2. peer-reviewed publication? 3. accepted? 4. speculation?

14. Plaintiffs damaged by actions ofdefendants? 1. criteria satisfied? 2. speculation?

15. Green Mt. Chrysler Plymouth Dodge Jeep v. Crombie -- Vermont case (2007) 1. Auto companies sought relief from GHG emission standards for new cars 2. State had expert testify as to link between climate change and man-made emissions. 3. Court found expert’s testimony to be based on “sufficient facts and data and reliable methods, applied reliably to the facts.”

16. Green Mt. Chrysler Plymouth Dodge Jeepv. Crombie -- Vermont case (2007)(continued) 4. “Monumental gravity” of the “situation” shouldn’t preclude testimony 5. Error rate and testability don’t matter because expert testimony is of a “different nature” 6. Lack of peer review and widespread acceptance, while relevant, are “not determinative”

17. Green Mt. Chrysler Plymouth Dodge Jeep v. Crombie -- Vermont case (2007)(continued) 7. Court found other factors important a. testimony based on research independent of litigation b. alternative explanations accounted for c. same intellectual rigor in courtroom as in field of study d. non-judicial uses of subject of testimony e. whether expert’s discipline lacks reliability

18. Green Mt. Chrysler Plymouth Dodge Jeep v. Crombie -- Vermont case (2007)(continued) 8. What result with “climate change skeptic” experts? 9. Would “Climategate” and the IPCC controversy change this result?

19. VI. Other disciplines (air dispersion modeling, hydrogeology, exposure and causation) • Science is more settled • More peer reviewed literature • Issues more familiar to court

20. VII. Junk Science Exposed • Beverly Hills High School case 1. Benzene from oil wells 2. Plaintiffs’ expert modeled exposure a. used benzene content higher than any oil in world b. had more oil spilled than produced c. emission at site = ¼ of total emissions in LA basin d. expert misread lab report on measured concentrations in oil e. result?

21. Medical Causation 1. Six different cancers 2. General Causation a. Can benzene cause these cancers b. Plaintiffs experts admitted 100 different types of cancer with different causes

22. Medical Causation(continued) 3. Specific Causation a. Did plaintiffs exposures cause their cancers b.“very, very, very miniscule” Please click on “Video 1” on Bren webpage to view this clip

23. Medical Causation(continued) 3. Specific Causation c. Plaintiff epidemiologist’s draft report does not allow inferences re cancers Please click on “Video 2” on Bren webpage to view this clip

24. Medical Causation (continued) 3. Specific Causation d. Plaintiffs expert toxicologist couldn’t identify studies supporting causation Please click on “Video 3” on Bren webpage to view this clip

25. Medical Causation(continued) 3. Specific Causation e. Summary Judgment: JUNK SCIENCE EXCLUDED

26. Expert Testimony Do’s & Don'ts Don’t 1. Be arrogant 2. Be combative 3. Advocate Do 1. Prepare 2. Play it straight 3. Keep it simple 4. Know your publications and file 5. Listen 6. Use technology

27. Sometimes you get lucky. . . . . Please click on Video 4 on Bren webpage to view this clip

28. Watch what you write. . . . Please click on “Video 5” on Bren webpage to view this clip