Courting Reliable Science: Judges Seek to Improve Use of Scientific Experts in Trials
Monastersky, Richard, Science News
In some of the most complex cases currently crawling through the U.S. courts, upwards of 500,000 women are suing the makers of silicone gel breast implants, claiming a range of medical problems caused by the occasionally leaky packets buried under their skin. At their core, these cases rely on scientific experts to weigh in on whether the implants can damage the human immune system, trigger connective tissue diseases, or precipitate a host of other disorders, from allergies to vertigo. The litigation pits one team of experts against another. Judges and juries must listen to the scientific arguments and then decide which side bears the preponderance of the evidence.
To many observers, such battles of the, experts appear to be straining the judicial system. "This is a circumstance where the information that the courts must consider is so inherently complex that even the best efforts by skilled advocates to educate the court often fall short of the mark says Joe S. Cecil, a lawyer and psychologist who conducts research for the Federal Judicial Center in Washington, D.C.
"I believe the breast implant cases are the most challenging cases that are in federal courts today," Cecil said in February at a meeting sponsored by the American Association for the Advancement of Science (AAAS) in Philadelphia. In Alabama, a federal district judge is experimenting with a potential solution to the problem of complex scientific arguments. Judge Sam C. Pointer Jr. has appointed a panel of four independent scientists to examine the available evidence about silicone gel breast implants and disease. These court-appointed experts--an epidemiologist, an immunologist, a rheumatologist, and a toxicologist--have been asked to offer their own assessments of the state of the science and examine the validity of dissenting opinions.
Their conclusions will be particularly influential because Pointer is presiding over a multidistrict litigation--a procedure that has grouped together more than 20,000 individual suits in order to make the pretrial phase more efficient. When these cases go back to their separate federal courts for trial, judges across the nation will decide how they wish to use the report from this independent panel.
Judges have had the authority to appoint independent experts since 1975, but relatively few have done so, in part because of widespread opposition from lawyers. The practice is now gaining increased attention. In December 1997, Justice Stephen G. Breyer of the U.S. Supreme Court supported the use of court-appointed experts in a concurring opinion he wrote in the case of General Electric Co. v. Joiner.
Breyer expanded on the issue of expert witnesses in an address at the AAAS meeting, noting that "as society becomes more dependent for its well-being upon scientifically complex technology, we find that this technology increasingly underlies legal issues of importance to us all."
The legal system, he says, "has begun to look for ways to improve the quality of the science upon which scientifically related judicial determinations will rest."
Legal professionals and scientists are quick to point out that they face what appear to be irreconcilable differences. Recognizing the problem-plagued relationship, the AAAS called its session on scientific litigation "Disorder in the Courts."
Joseph Sanders, a law professor at the University of Houston, explained. "What the title reflects is a widespread belief that the law is basically doing a poor job with scientific evidence and perhaps even a more fundamental perception that law and science are like oil and water. They're good things in their own place, but they don't mix together very well."
At the most fundamental level, participants at the AAAS meeting noted that science and the law represent wholly different approaches to seeking solutions. Science represents an unending search for explanations, one in which the questioning process prevails and answers are temporary. …