What to Do with Daubert: How to Bring Standards of Reliable Scientific Evidence to the National Vaccine Injury Compensation Program

By Boxler, Brandon L. | William and Mary Law Review, March 2011 | Go to article overview

What to Do with Daubert: How to Bring Standards of Reliable Scientific Evidence to the National Vaccine Injury Compensation Program


Boxler, Brandon L., William and Mary Law Review


TABLE OF CONTENTS

INTRODUCTION
  I. THE LEGAL SYSTEM'S INTERACTION WITH NATIONAL
     IMMUNIZATION POLICIES
     A. Benefits and Risks of Vaccination
     B. Good Law Is Rooted in Good Science
        Co Junk Science and the Risk to Public Health
 II. A DELICATE MEDICOLEGAL BALANCE: THE NATIONAL
     CHILDHOOD VACCINE INJURY ACT OF 1986
     A. Unfettered Litigation and a Public
        Health Emergency
     B. The Vaccine Act's Basic Statutory Scheme
     C. Rules of Discovery, Evidence, and
        Procedure in the Vaccine Program
III. DEFICIENT EVIDENTIARY STANDARDS: THE
     PROBLEM AND ITS JURISPRUDENTIAL CONSEQUENCES
     A. The "Overwhelming Discretion" of
        Special Masters
     B. Why Have No Uniform Standards Emerged?
     C. Inconsistent and Unpredictable Case Law
     D. A Unique Need for Evidentiary Guidance
 IV. DAUBERT'S TREATMENT IN VACCINE ACT LITIGATION
     A. The Supreme Court's Focus on Reliable Science
     B. Daubert Without the Federal Rules of Evidence?
     C. Federal Circuit Inconsistency
     D. What About Althen?
     E. A Final Example
  V. APPLYING DAUBERTTO THE VACCINE PROGRAM
     A. Special Master Expertise
     B. Using Daubert To Buttress Congressional Goals
        1. A Move Toward Traditional Civil Litigation?
        2. An Example of Inefficiency
     C. Daubert Without Judicial Gatekeeping
CONCLUSION

INTRODUCTION

Whether a vaccine caused a person's injuries is a complex biological question. Yet every day, litigants ask judges and jurors who lack scientific sophistication to answer this and other difficult medical questions. (1) And as scientific knowledge advances, the number of science-based disputes reaching our country's courtrooms is exploding. (2)

Legal institutions must adapt to this dynamic medicolegal nexus by developing standards and procedures that enable courts to utilize the benefits of novel scientific truths while simultaneously avoiding the perils of junk science. (3) The legal system's response to scientific advancement, however, should not come at the expense of its own institutional goals of efficiently resolving conflicts and achieving justice. (4) Although "[s]cientific issues permeate the law," (5) they should not swallow the legal decision-making process altogether. In other words, "we must build legal foundations that are sound in science, as well as in law." (6)

Striking the appropriate medicolegal balance is not easy, but it is important especially when litigants ask courts to resolve disputes involving alleged vaccine injuries. (7) If the legal system decides without a sufficient medical basis that a vaccine can or did cause a certain injury, it not only increases the divide between science and law, (8) it also risks decreasing the public's trust in vaccines and potentially destabilizing one of the most important public health institutions of the modern world. (9)

This Note explores the interaction among science, law, and justice within the context of our country's immunization policies. It argues that courts should protect the stability and integrity of our national immunization program by refusing to declare that a vaccine harmed someone without basing that finding on reliable science. Special masters (10) presiding over proceedings brought under the National Childhood Vaccine Injury Act of 1986 (Vaccine Act or Act) (11) should thus have clear, uniform standards by which to scrutinize the complex medical evidence presented in their cases. In particular, special masters should have the power to weigh and exclude evidence and testimony pursuant to the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc. (12) And they should have that power even though the Federal Rules of Evidence do not govern litigation brought under the Act. (13)

Part I of this Note outlines the importance of maintaining an appropriate balance between law and science within the context of our national immunization policies and legal institutions.

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What to Do with Daubert: How to Bring Standards of Reliable Scientific Evidence to the National Vaccine Injury Compensation Program
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