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LAW : Scientific Evidence: Court May Decide When Jury Can Hear It

TIMES STAFF WRITER

The Supreme Court hears a case today that could affect virtually every scientific dispute that reaches the courtroom.

In 1972, Jason Daubert of Southern California was born with a shortened right arm. A suit brought on his behalf claimed that the culprit was the anti-nausea drug Bendectin, which his mother had taken. The maker, Merrill Dow Pharmaceuticals, eventually withdrew the drug from the market after receiving reports that hundreds of women who had taken the drug had given birth to children with defects, mostly reduced or missing limbs, although many thousands of others had reported no such problems.

U.S. District Judge Earl Gilliam in San Diego dismissed the Daubert suit, and the U.S. 9th Circuit Court of Appeals in San Francisco upheld the order. The courts said the views of the plaintiff’s experts--including the chief of the biostatistics unit for the California Department of Health--about the dangers of Bendectin were out of line with mainstream scientific thought on the subject: that Bendectin was not a danger to pregnant women.

The appellate court ruled that the plaintiff’s experts could not present their case to a jury because their evidence was not “generally accepted as reliable” by most scientists.

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Now, however, the case of Daubert vs. Merrill Dow, 92-102, will be heard by the Supreme Court and a ruling, due by July, may affect disputes in which expert testimony is critical, including whether electromagnetic fields cause cancer, whether DNA testing is reliable for identifying crime suspects or whether silicone breast implants are dangerous. Millions of dollars in damages could ride on the conclusion.

The Supreme Court has never ruled directly on what standard should be used in screening expert witnesses before a trial. Judges around the country have adopted different approaches.

Some rely on a 1923 decision in a case known as Frye vs. the United States, in which an appeals court said juries should hear only expert testimony that is “generally accepted” as reliable by the mainstream scientific community.

U.S. District Judge Jack Weinstein in New York used this rule in 1985 to deliver a fatal blow to the lawsuits against Agent Orange, the Vietnam-era defoliant. Weinstein barred trial testimony from experts who contended that Agent Orange caused cancer and other illnesses in thousands of vets. These experts said animal studies demonstrated the danger of the defoliant, but Weinstein disputed the reliability of their evidence.

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Similarly, Judge Alex Kozinski of the 9th Circuit Court relied on the Frye rule to bar the experts’ testimony linking Bendectin to birth defects. Jurors should hear evidence based on “good science” which has been screened through the traditional peer-review process, not “junk science” that has been cooked up just for the courtroom, he said.

Most big-business groups and mainstream professional groups such as the American Medical Assn. have urged the high court to affirm this strict ban on expert testimony from dissenting scientists.

But trial lawyers and some scientists have urged the court to let juries hear and weigh the conflicting evidence. They note that Congress seemed to favor this more liberal approach when it adopted the Federal Rules of Evidence in 1975 to guide federal judges.

These rules say that juries should hear “all relevant evidence,” including that from qualified experts. A judge can screen out witnesses who are not experts in the field, but he is not empowered to screen out witnesses based on his analysis of their conclusions.

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In general, the conservative justices of the Supreme Court, like their colleagues on the lower courts, are inclined to be skeptical of permitting trial lawyers to sue major manufacturers based on evidence supplied by several out-of-the-mainstream experts.

But these same conservative jurists are also inclined to follow the language of the law as adopted by Congress. And the rules of evidence suggest that juries must be permitted to hear testimony from experts, so long as it is relevant to the dispute.

A ruling in favor of the Dauberts would not mean that Bendectin caused birth defects, but it would give jurors in San Diego a chance to decide the issue.


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