A baby is born with a birth defect. His mother had taken an anti-nausea drug during pregnancy. She sues the drug company, claiming that its drug caused the defect. Each party produces scientists to testify on opposite sides of the question of whether the drug is safe. Then a jury, usually including no scientists, decides which scientists to believe.
But not this time. In Daubert v. Merrell Dow Pharmaceuticals, more than 30 scientific studies had concluded that there was no statistical link between birth defects and the drug Bendectin. Nevertheless, the plaintiffs produced a scientist who had TTC reanalyzed data from the studies and reached a different conclusion, although he had never published his analysis. The trial judge barred the scientist from testifying and dismissed the lawsuit. The dueling scientists never reached the jury.
And that is the issue that reaches the Supreme Court -- not drug safety, but whether there should be standards to determine which science gets a day in court.
Evidence from an early lie detector was disallowed in 1923 by a judge who said expert testimony should reflect methods and theories generally accepted by other scientists. Mindful of the fact that cutting-edge science is often controversial, the rule was broadened in 1975 to permit juries to hear evidence that challenges the weight of scientific opinion.
The argument for tightening the rule again is that "junk science" -- research generated to win lawsuits, rather than find truth -- is contributing to a litigation explosion that may be draining as much as $300 billion a year from our economy. Further, "junk science" may inhibit product innovation. Despite all the studies that seemed to exonerate Bendectin of causing birth defects, Merrell Dow pulled the drug off the market in 1983. It said it couldn't afford to keep defending baseless liability suits.
One proposed solution would be to require courtroom science to meet the same standards of peer review needed for academic publication. But scientists are often sharply divided among themselves -- as the debates over biological evolution, global warming and "Big Bang" cosmology suggest. Better to let juries distinguish between speculation and science than to entrust the task to scientific or industrial establishments with their own interests to defend.
Better yet, we think, is to grant trial judges wide discretion to exclude dubious testimony. If "hired gun" charlatans are selling junk science to liability plaintiffs, experienced judges will sniff them out.