Order without science

On June 28, 1993, the Supreme Court of the us passed a verdict that tilted the scales of justice in favour of polluters by undermining the role of science in the country's judicial arena. This fact was made public during a recent press conference of the Tellus Institute, a Boston-based non-governmental organisation

 
Published: Friday 15 August 2003

on june 28, 1993, the Supreme Court of the us passed a verdict that tilted the scales of justice in favour of polluters by undermining the role of science in the country's judicial arena. This fact was made public during a recent press conference of the Tellus Institute, a Boston-based non-governmental organisation. The ruling, which emerged from the case of Daubert vs Merrell-Dow, endowed judges with the power to decide whether to allow expert testimony into the courtrooms or not. The decree was criticised on the grounds of turning judges into amateur scientists.

Families of two children with minor birth defects filed the Daubert case against the manufacturer of the anti-nausea drug Bendectin. In its 7-2 ruling in favour of the manufacturer, the Supreme Court set up four criteria to determine the credibility of science as evidence -- is the expert opinion based on a testable theory or technique; has the theory or technique been peer reviewed; does the technique have a known error rate; and is the underlying science generally acceptable? The judges were even permitted to use standards of their own. Two later cases -- General Electric vs Joiner and Kumho Tire Corporation vs Carmichael -- expanded on the judgement. In Joiner, the court ruled that appellate courts should not overturn the admissibility decision of a trial court unless the trial court abused its discretion. In Kumho, it clarified that the Daubert ruling is applicable to all expert testimonies, including those based on experience.

Prior to the ruling, the jury (instead of the judges) ascertained the creditability of 'expert evidence' on the basis of two standards -- relevance, and whether the methods used by experts were generally accepted within the scientific community. "The shift violated the essential core of one's right to a jury trial," asserts Stanley Feldman, former chief justice of the Arizona Supreme Court. Furthermore, it allowed lawyers and judges to demand certainty from science that is not in tandem with what the law would require usually. "It is in particular troubling for toxic tort cases, where a plaintiff relies on scientific experts to demonstrate causality," asserts Margaret Berger, a professor at the Brooklyn Law School, usa. With so much unknown about the toxicity of a vast array of chemicals, it is very rare for scientists to arrive at definitive conclusions. The ruling allows defendants to exploit this uncertainty to toss out scientific evidence. A good example is the case of a contractor from Exxon Corporation's oil refinery, who supposedly developed chronic myelogenous leukaemia after being exposed to benzene. Peter Infante, former director of the Office of Standards Review at the us Department of Labour's Occupational Safety and Health Administration, was suppose to testify. As the author of a 1977 study that confirmed benzene as a cause of leukaemia, Infante seemed to be a qualified expert. But the judge excluded his testimony on the grounds of there being a limited scope of studies about workers exposed to benzene.

So far some 20 states of the us have adopted the Daubert ruling. Critics assert that it is also leading to biased policy formation. In this context, some cite the 2001 Federal Data Quality Act, which provides concerned parties with a formal administrative mechanism to challenge the science used by federal regulatory agencies. A chemical lobby recently challenged the us Environmental Protection Agency's right to include peer-reviewed studies documenting endocrine disruption effects in its risk assessment of the herbicide atrazine. Last year, the us Chamber of Commerce had even urged the government to adopt the Daubert standards in the regulatory process.

Subscribe to Weekly Newsletter :

Comments are moderated and will be published only after the site moderator’s approval. Please use a genuine email ID and provide your name. Selected comments may also be used in the ‘Letters’ section of the Down To Earth print edition.