Justices Agree to Consider ‘Junk Science’ : High court: Ruling will address whether evidence must be generally accepted by scientists before it can be presented to a jury.

The Supreme Court on Tuesday entered the debate on “junk science” in the courtroom, agreeing to rule on whether evidence must be generally accepted by the scientific community before it can be presented to a jury.

The answer to that question, expected next year, likely will have a major impact on lawsuits involving pharmaceuticals or alleged environmental pollutants in which the validity of scientific evidence is crucial. It has already proved to be a major issue in the massive lawsuits against Agent Orange, the Vietnam-era defoliant, and Bendectin, an anti-nausea drug taken by 33 million pregnant women.

It may also affect prosecutors who seek to make use of new crime-detection techniques, such as DNA “fingerprinting,” before they are fully accepted by the scientific community.

The case before the high court concerns two San Diego area boys who were born with birth defects months after their mothers had taken Bendectin. Jason Daubert, now 19, was born missing three fingers and a major bone in his arm. Eric Schuller, now 11, was born without a left hand and with his left leg shorter than his right.

Their parents sued Merrill Dow Pharmaceuticals in 1984, alleging that Bendectin, when taken during an early phase of a pregnancy, causes birth defects.

But U.S. District Judge Earl Gilliam in San Diego dismissed the lawsuit before trial and the U.S. 9th Circuit Court of Appeals in Pasadena agreed that judges should take a restrictive approach toward the use of scientific evidence. Because large-scale studies did not show a clear link between Bendectin and birth defects, juries should not be permitted to hear testimony from experts who see such a link, the appeals court said.

Several doctors were ready to testify that animal and chemical studies convinced them that Bendectin did indeed cause birth defects. But Judge Alex Kozinski, writing for the appeals court, said that this sort of evidence is not “generally accepted as a reliable technique among the scientific community.”

However, many state courts and a few federal courts have taken a more lenient view and decreed that juries should be permitted to hear conflicting testimony from experts. They rely on the Federal Rules of Evidence, enacted by Congress in 1975, which say that juries should consider “all relevant evidence” from qualified experts, even when scientists do not agree.

Vice President Dan Quayle, joined by lawyers for manufacturers who have been the target of lawsuits, has denounced this approach as encouraging “junk science” in which experts get paid for making dubious assertions before juries. As part of their attack on “frivolous lawsuits,” President Bush and Quayle have urged that the federal rules of evidence be amended so that experts should be permitted to testify at trials only if their conclusions are “widely accepted.”

The San Diego case (Daubert vs. Merrill Dow, 92-102) marks the first time the high court will rule on what standards should be used in considering scientific evidence.

Merrill Dow, now based in Kansas City, took Bendectin off the market in 1983 after a flood of lawsuits was filed but the company insists that the drug did not cause birth defects.

Santa Monica attorney Hall R. Marston, who represents Merrill Dow, said that trial judges need the authority to exclude some expert testimony to prevent “scientific shamans” from engaging in “unscrupulous hucksterism.”

In other action, the court:

--Refused to hear an appeal from convicted Israeli spy Jonathan Pollard, who contended that his guilty plea was improperly coerced because it was given in exchange for a lenient treatment for his wife (Pollard vs. U.S., 92-17). Pollard admitted taking stacks of top-secret documents and passing them on to Israeli agents in exchange for $50,000 in cash.

--Let stand a ruling that requires church-affiliated schools in Oregon to pay unemployment taxes (Bible Temple vs. Oregon, 92-348). In past rulings, the court has said that churches are not exempt from general work place laws, including the requirement to collect Social Security taxes.