Daubert, Junk Science and Polluters

Back when I was at OSHA working on ergonomics, the biggest argument we had with opponents of the regulation were allegations by the business associations and conservative Republicans that ergonomics was based on “junk science.” The argument was put most forcefully by soon-to-be Labor Department Solicitor Eugene Scalia who claimed in an article that OSHA was violating the “Daubert Decision.”

Today, a group of experts in the legal and scientific community released a report entitled "Daubert: The Most Influential Supreme Court Ruling You've Never Heard Of" (Full Report here.)

Daubert was originally intended to assist judges in determining what evidence could be admitted into a trial. But as the authors explain:

The 1993 Daubert ruling directed federal judges to act as "gatekeepers" in the courtroom, using a standard that requires expert testimony to be both reliable and relevant before allowing it to be presented to juries. However, over the past 10 years, some judges have misinterpreted and broadened the reach of Daubert. Some have excluded scientific opinions when there is (or appears to be) disagreement among legitimate scientists; while others pick apart each piece of the scientific evidence presented by an expert rather than assessing the evidence as a whole, the way scientists do.

What this means is that when corporate attorneys manage to cloud the science and confuse the judges, the evidence gets labeled as “junk science” and good cases often get dismissed by the judge before they even get to a jury. Victims of toxic chemicals and drugs are the losers.

Or, as in the case of ergonomics, the “junk science” argument is used to obstruct the regulatory process.

One example of how Daubert has kept legitimate science out of the courtroom came from Peter Infante, former director of OSHA’s Office of Standards Review. He was prevented from testifying in Chambers v. Exxon Corp., a lawsuit involving a contractor at an oil refinery in Baton Rouge who was exposed to benzene and then developed chronic myelogenous leukemia (CML), a rare form of cancer. He was to have testified as the author of a 1977 study that confirmed that benzene caused leukemia and as the author of a later analysis that found a four-fold increase in the risk of developing CML from exposure to benzene.

But the judge excluded his testimony (saying it wasn’t strong enough) and issued a summary judgment in favor of the defendant. Dr. Infante said the judge not only made a factual error – his analysis was the first to show a more than two-fold increase in risk plus statistical significance – he asked for more than anyone else in the field would have required for such a rare disease. Benzene was considered a cause of leukemia, including CML, long before any epidemiological study showed a two-fold increase in risk.

"It seems to me the judge was making a scientific determination when he didn’t have the expertise to do that," Dr. Infante said. “It’s a matter of fairness. A worker wasn’t protected from toxic exposure, from a chemical known to cause a disease. He was damaged by the product, and his case wasn’t allowed to get to a jury.”

So what is to be done about this problem? Beyond "becoming aware," or getting better judges (by getting rid of you-know-who) that's not entirely clear.

On the tenth anniversary of Daubert, the scientific community needs to become
much more aware that an obscure procedural decision intended to provide clarity has instead given rise to a serious social imbalance. It has led to unreasonable legal demands of scientific certainty when considering expert testimony that right otherwise demonstrate harm of individual plaintiffs by defendants, often wealthy and powerful companies. At the same time, inappropriate or inaccurate interpretations of science are becoming embedded in legal precedent. Yet in contrast, Daubert has failed to demand from criminal prosecutors better science in the face of weak forensic methods, resulting in the potential conviction of innocent people. And now, the application of Daubert and Daubert-like challenges threaten to paralyze the systems we use to protect public health and the environment.