Irreconcilable differences? The troubled marriage of science and law

Law and Contemporary Problems

Volumn 72, Issue 1, 2009, Pages 1-23

  Haack, Susan ^a  

^a UNIVERSITY OF MIAMI   (United States)

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EID: 69849099278     PISSN: 00239186     EISSN: None     Source Type: Journal    
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References (148)

1. Charles F. Himes, The Scientific Expert in Forensic Procedure, 135 J. Franklin Inst. 407, 411-12 (1893).
2. Edward Humes, Monkey Girl: Evolution, Education, Religion, and the Battle for America's Soul 257 (2007).
3. See generally Symposium, Science in the Regulatory Process, 66 Law & Contemp. PROBS. 1 (Autumn 2003) (issue devoted to regulatory science).
4. See, e.g., Susan Haack, Defending Science-Within Reason: Between Scientism and Cynicism 322-24 (2003) (discussing National Institutes of Health (NIH) regulation of early research on recombinant DNA).
5. For example, in the case of Dr. Eric Poehlman, who pled guilty to lying on a federal grant application and to fabricating data, over more than a decade, on obesity, menopause, and aging, see generally Jeneen Interlandi, An Unwelcome Discovery, N.Y. Times, Oct. 22, 2006, at 98.
6. Plea Agreement, United States v. Poehlman, No. 2:05-CR-38-01 (D. Vt. Mar. 17, 2005).
7. Sentencing Judgment, United States v. Poehlman, No. 2:05-CR-38-01 (D. Vt. June 30, 2005).
8. Bonnischen v. United States, 367 F.3d 864 (9th Cir. 2004).
9. see also Jeff Benedict, NO Bone Unturned: the Adventures of a Top Smithsonian Forensic Scientist and the Legal Battle for America's Oldest Skeletons (2003).
10. See, most recently, Selman v. Cobb County Sch. Dist., 390 F. Supp. 2d 1286 (N.D. Ga. 2005), and Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707 (M.D. Pa. 2005). See generally Humes, supra note 2 (telling the background story of Kitzmiller, and summarizing the trial proceedings).
11. Unless otherwise indicated, in what follows the phrase "the culture of the law" will refer specifically to the U.S. legal culture.
12. Frederic Williams Maitland, the Forms of Action at Common Law 309 (1909).
13. See Paul R. Hyams, on the Laws and Customs of England 101 (1981) (arguing that rejection of trial by ordeal "was at least a century and a half old in 1215 when the Fourth Lateran Council proclaimed the church's official disapproval").
14. Maitland, supra note 9, at 311.
15. Four of the defendants were hanged; one was acquitted when the jurors swore he had not broken the law. Sadakat Kadri, the Trial: a History, From Socrates To O.J. Simpson 69-70 (2005).
16. Learned Hand, Historical and Practical Considerations Regarding Expert Testimony, 15 Harv. L. Rev. 40, 41 (1901).
17. Stephan Landsman, Of Witches, Madmen and Product Liability: An Historical Survey of the Use of Expert Testimony, 13 Behav. SCI. & L. 131, 135-38 (1995).
18. Id. at 133.
19. Hand, supra note 15, at 45.
20. Alsop v. Bowtrell, Cro. Jac. 541, 541 (1620).
21. Hand, supra note 15, at 45 (noting that the expert witness, as an exception to the opinion rule, is a kind of relic left over from the older system, before the opinion rule limited lay witnesses' testimony)
22. Landsman, supra note 16, at 141.
23. Folkes v. Chadd, 3 Doug. 157, 157-58 (1782).
24. James Thayer, Select Cases on Evidence at the Common LAW 666 (1892).
25. Landsman, supra note 16, at 141.
26. Tal Golan, Laws of Men and Laws of Nature: the History of Scientific Expert Testimony in England and America 41 (2004) (citing Rex v. Pembroke (1678) in 7 Cobbett's Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors From the Earliest Period To the Present Time 185-86 (Thomas J. Howell ed., London, R. Bagshaw 1810)).
27. Golan, supra, note 24, at 43-44.
28. Winans v. N.Y. & Erie R.R. Co., 62 U.S. 88, 101 (1858).
29. John Ordronaux, On Expert Testimony in Judicial Proceedings, 317 J. Insanity 317 (1874). At the time, Ordronaux was a member of the State Commission in Lunacy. Obituary, Dr. John Ordronaux, N.Y. Times, Jan. 21, 1908.
30. Ferguson v. Hubbell, 97 N.Y. 507, 514 (N.Y. 1884).
31. Himes, supra note 1, at 409; see also supra text accompanying note 1.
32. Lee M. Friedman, Expert Testimony, Its Abuse and Reformation, 19 YALE L.J. 247, 247 (1910).
33. Scopes v. State, 278 S.W. 57, 57 (Tenn. 1925).
34. Edward J. Larson, Trial and Error: the American Controversy Over Creation and Evolution 68 (3d ed. 2003) (citing Thomas Stewart & Arthur Garfield Hayes, the World's Most Famous Court Trial: State of Tennessee V. John Thomas Scopes 137, 150-53 (Leonard W. Levy ed., Da Capo Press 1971) (1925).
35. 3 David W. Louisell & Christopher B. Mueller, Federal Evidence 629-30, 633, 649-56, 687-88 (1979).
36. 3 JACK B. Weinstein & Margaret Berger, Weinstein's Evidence 702-03 (1982)). In Kitzmiller, a whole parade of expert witnesses, on both sides, dominated the proceedings. Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707 (M.D. Pa. 2005).
37. 293 F. 1013 (D.C. Cir. 1923).
38. Id. at 1014.
39. Alice B. Lustre, Annotation, Post-Daubert Standards for Admissibility of Scientific and Other Expert Evidence in State Courts, 90 A.L.R. 5th 453 (2001). Michigan stuck with Frye until 2004, when it shifted to Daubert. Mich. R. Evid. 702 (2003).
40. People v. Wright, No. 261380, 2006 WL 2271264 at *5 (Mich. App. Aug. 8, 2006), ("MRE 702 was specifically amended, effective January 1, 2004, to incorporate the Daubert standards.").
41. Fed. R. Evid. 702 (1975) ("If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact at issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify in the form of an opinion or otherwise.").
42. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
43. Id. at 589 ("[The Frye Rule is an] austere standard, absent from, and incompatible with, the Federal Rules of Evidence, [and] should not be applied in federal trials.").
44. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 139 (1997) ("We hold that abuse of discretion is the appropriate standard.").
45. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) ("We conclude that Daubert's general holding-setting forth the trial judge's 'gatekeeping' obligation-applies not only to testimony based on 'scientific' knowledge, but also to testimony based on 'technical' and 'other specialized' knowledge.").
46. Fed. R. Evid. 702 (2001) ("If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.").
47. See generally Susan Haack, Trial and Error: The Supreme Court's Philosophy of Science, 95 AM. J. Pub. Health (Supple 1) S66 (2005).
48. See generally Susan Haack, Peer Review and Publication: Lessons for Lawyers, 36 Stetson L. Rev. 789, 811 (2007).
49. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993).
50. See Lisa Heinzerling, Doubting Daubert, 14 J.L. & POL'Y 65, 68 (2006) ("[T]he [Daubert] Court's casually offered guidelines on admitting expert scientific evidence have served as the vehicle for transforming Daubert from an evidence-liberalizing decision into an evidence-narrowing one.").
51. Susan Haack, of Truth, in Science and in Law, 73 Brook. L. REV. 985, 990 (2008) (commenting on the effects of Daubert in civil trials).
52. Fed. R. Evid. 702 (2001).
53. George Lakoff, A Cognitive Scientist Looks at Daubert, 95 AM. J. Pub. Health (Supplement 1) S114, S117 (2005) ("When a scientist is 'Dauberted out' of a trial, the repercussions for the scientist are serious.").
54. De-Daubertizing Economic Damages Evidence, Lostcompensation.com, Jan. 2006, available at http://www.lostcompensation.com/newsletters/v3_i1_2006.html ("A 'dauberted out' economic expert in injury and wrongful death cases can be particularly disastrous.").
55. It is, however, to reject both the instrumentalist view that theoretical " statements"in science are not really genuine statements at all, and so are neither true nor false, and the constructiveempiricist view that, although theoretical statements are statements, and do have truth-values, the goal of science is empirical (in other words, observational) adequacy, not truth. I shall not argue either point here, but refer readers to the arguments in Haack, supra note 4, at 137-41.
56. Horace Freeland Judson, the Eighth Day of Creation: Makers of the Revolution in Biology 488 (1979).
57. Nowadays, however, police detectives (and doubtless many private investigators too) will also usually be concerned that they obtain evidence in such a way that it will be admissible in court.
58. See, e.g., Bettyann Holtzmann Kevles, Naked to the Bone: Medical Imaging in the Twentieth Century (1997) (presenting a history of medical-imaging techniques).
59. Robert K. Merton, Social Theory and Social Structure 307 (1949). Merton's understanding of science is nowadays regarded in some circles as hopelessly passé, but others believe, on the contrary, that some insights of Merton's are now in danger of being lost. See also Haack, supra note 4, at 299-328 (discussing the values of science).
60. Susan Haack, The Integrity of Science: What It Means, Why It Matters (1996), in Putting Philosophy to Work: Inquiry and Its Place in Culture 106 (2008) (adopting and developing some of Merton's ideas about the norms of science).
61. Some professional scientific organizations now have formal codes of ethical conduct. See, e.g., America Society of Microbiology, http://www.asm.org/general.asp?bid=14777 (last visited Feb. 3, 2009).
62. Gerontological Society of America, http://www.geron.org/Membership/Code%20of%20Ethics/37-Membership/131-cod e-of-ethics (last visited Feb. 3, 2009).
63. International Union of Biochemistry and Molecular Biology, www.babonline.org/bab/babcethics.pdf (last visited Feb. 3, 2009).
64. American Medical Association, http://www.ama-assn.org/ama/pub/category/2512.html (last visited Feb. 3, 2009) (stating the "9 principles of conduct"that define physicians' behavior and are the basis for the opinions that make up the Code of Medical Ethics). Courses in ethics for science students are not uncommon; but more formal arrangements like these cannot compensate for an erosion of the ethos of science.
65. The recent vote by an international congress of astronomers to demote Pluto from the status of planet was a vote to adopt the verbal convention that to count as a planet, a heavenly body should have these and those characteristics; it was not a vote that Pluto lacks certain of these characteristics-which is simply not the kind of thing that could be so decided. Dennis Overbye, Astronomers in Quandary Over Pluto's Planet Status, N.Y. Times, Aug. 23, 2006, at A20.
66. Kenneth Chang, Dwarf Planet, Cause of Strife, Gains "the Perfect Name,"N.Y. Times, Sept. 15, 2006, at A20.
67. Perhaps the first phrase of the Frye Rule, that the underlying scientific principle must be "sufficiently established to be generally accepted in the field,"was an implicit acknowledgment of this possibility. If so, it is an insight that is lost when the Rule is abbreviated, as it usually is, to "general acceptance."This prompts the speculation that the Florida Supreme Court's ruling in Ramirez III--where it seems on its face as if the court conducted a Daubert inquiry to determine the kind of knife-mark identification on which Mr. Ramirez's conviction turned is generally accepted in the field-might more plausibly be read as implicitly recognizing the significance of this initial phrase of the test proposed in Frye. Ramirez v. State, 810 So.2d 836, 845 (Fla. 2001).
68. Gregor Mendel's paper, effectively establishing the particulate theory of inheritance, lay neglected and unread in the journal of the Natural History Society of Brno (Brünn), Moravia, for decades. Frank Maloney, Gregor Johann Mendel O.S.A., Villanova University, available at http://astro4.ast.vill.edu/mendel/gregor.htm (last visited Oct. 26, 2008).
69. See Judson, supra note 50, at 608-13 (discussing Phoebus Levine's tetranucleotide hypothesis, which, though merely a conjecture, was so widely accepted as to hold back recognition that DNA is the genetic material).
70. This is apparently what happened in Soviet biology in the decades in which it was impeded by the influence of Trofim Lysenko's politically convenient, but badly mistaken, ideas. On the history of Soviet biology in the Lysenko period, see, for example, William Broad & Nicholas Wade, Betrayers of the Truth 186-92 (1982).
71. George S. Counts & Nucia Lodge, the Country of the Blind: the Soviet System of Mind Control (1949).
72. Nils Roll-Hansen, the Lysenko Effect: the Politics of Science (2005).
73. Valery N. Soyfer, the Tragedy of Soviet Science (Leo Gruliow & Rebecca Gruliow trans., 1994).
74. See Susan Haack, "As for that phrase 'studying in a literary spirit' (,"in Manifesto of A Passionate Moderate: Unfashionable Essays 48-68, 188-208 (1998) (developing from Charles S. Peirce the idea of sham inquiry). The "Wedge Document,"produced by the Center for Science and Culture at the Discovery Institute and made public-apparently without the Center's authorization-in 1999, resembles nothing so much as a marketing plan for Intelligent Design Theory. This document gives the lie to the pretense that IDT is a scientific conjecture giving rise to a bona fide research program. Center for the Renewal of Science and Culture, The Wedge Strategy, available at www.kcfs.org/Fliers_articles/Wedge.html (last visited Oct. 26, 2008).
75. see also Barbara Forrest & Paul R. Gross, Creationism's Trojan Horse: the Wedge of Intelligent Design (2004) (criticizing Intelligent Design Theory generally, and the Discovery Institute's Wedge Document specifically).
76. Michael Polanyi, Science, Faith and Society 40 (1946).
77. Some might argue that political science is an exception, but this is not an issue that can be pursued here.
78. See John Barry, the Great Influenza (2004) (a history of the hurried work to figure out the cause of the 1918 flu epidemic).
79. William Cooper, the Struggles of Albert Woods (1952) (a fictional account of hurried poison-gas research during World War II).
80. Or, as in the case of "creation science,"in hopes of circumventing legal problems.
81. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596-97 (1993).
82. Failure to investigate is one criterion of "ineffective assistance of counsel"in death-penalty cases. See Rompilla v. Beard, 545 U.S. 374, 383 (2005) (reversing on the grounds that "the lawyers were deficient in failing to examine the court file on Rompilla's prior conviction").
83. Wiggins v. Smith, 539 U.S. 510, 524 (2003) (reversing based on counsel's decision not to expand the investigation beyond the presentence investigation (PSI) and Department of Social Services (DSS) records, which "fell short of the professional standards that prevailed in Maryland in 1989").
84. Williams v. Taylor, 529 U.S. 362, 373 (2000) (reversing the death penalty and remanding on the grounds that counsel for the petitioner had failed to seek Williams' juvenile and social-service records, "erroneously believ[ing] that 'state law didn't permit it'").
85. American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1, 93 (1989) (instructing that counsel should make efforts to discover "all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor").
86. Charles Sanders Peirce, 2 Collected Papers of Charles Sanders Peirce para. 635 (Charles Hartshorne & Paul Weiss eds., 1932) (the passage quoted is dated 1878).
87. Marvin F. Frankel, The Search for Truth: An Umpireal View, 123 U. PA. L. REV. 1031, 1036 (1975).
88. As Robert Heilbrun's fictional public defender Arch Gold comments, "[t]his [the capitalsentencing hearing in which he was participating] wasn't the real world... It was a twisted kind of theater, a 'reality-based' drama that had nothing to do with what really went on down there on Twentieth Street."Robert Heilbrun, Offer of Proof 238 (2003).
89. The argument is developed, and its presuppositions explored, in Susan Haack, Epistemology Legalized: Or, Truth, Justice, and the American Way, 49 AM. J. JURIS. 43 (2004).
90. Paul K. Feyerabend, Against Method: Outlines of an Anarchistic Theory of Knowledge 10 (1975) (claiming that "[s]cience is an essentially anarchistic enterprise").
91. see also Haack, supra note 4, at 49-50 (criticizing Feyerabend's philosophy of science).
92. Blum v. Merrell Dow Pharms., Inc., 1 Pa. D. & C.4th 634 (Pa. C.P. 1988), rev'd, 560 A.2d 212 (Pa. Super. Ct. 1989), aff'd 626 A.2d 537 (Pa. 1993), remanded to 33 Phila. 193 (Pa. C.P. 1996), rev'd 705 A.2d 1314 (Pa. Super. Ct. 1997), affm'd 764 A.2d 1 (Pa. 2000).
93. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 139-40 (1997).
94. Humes, supra note 2, at 257.
95. Its interactions with the law can also have deleterious effects on science. For example, scientists whose work potentially bears on litigation are quite likely to find themselves interrupted and overburdened by subpoenas and depositions. Legal Demands Take Time from Scientists' Real Work, Wall ST. J., Jan. 27, 2007, at A5 (on file with Law and Contemporary Problems). But these issues cannot be pursued here.
96. The Vigor study was designed to track gastrointestinal effects (anticipated to be favorable to the drug) longer than cardiovascular effects (anticipated to be unfavorable). Claire Bombadier et al., Comparison of Upper Gastrointestinal Toxicity of Rofecoxib and Naproxen in Patients with Rheumatoid Arthritis, 343 New Eng. J. Med. 1520 (2000).
97. David Armstrong, How the New England Journal Missed Warning Signs on Vioxx: Medical Weekly Waited Years to Report Flaws in Article, Wall ST. J., May 15, 2006, at A1, A10.
98. see also Haack, supra note 44, at 804-07.
99. Haack, supra note 53, at 116-20 (telling the Vioxx story).
100. Scott D. Solomon et al., Cardiovascular Events Associated With Rofecoxib in a Colorectal Adenoma Prevention Trial, 352 New Eng. J. Med. 1092, 1093 (2005).
101. Correction, 355 New Eng. J. Med. 221 (2006).
102. Heather Won Tesoriero, Vioxx Study Correction May Add Pressure to Merck's Defense, Wall ST. J., June 27, 2006, at A2. In November 2007, Merck made a $4.85 billion settlement deal with (a large class of) Vioxx plaintiffs. Heather Won Tesoriero, Sarah Rubenstein, & Janey Heller, Vioxx Settlement for $4.85 Billion Largely Vindicates Merck's Tactics, Wall ST. J., Nov. 11, 2007, at A1, A5.
103. I say "aspires"because, in practice, litigation is sometimes alarmingly protracted; for example, the Blums first brought suit against Merrell Dow in 1982, but the case was not finally resolved until 2000. See supra text accompanying note 72.
104. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 139-40 (1997).
105. see also Michael Gottesman, From Barefoot to Daubert to Joiner: Triple Play or Double Error?, 40 Ariz. L. Rev. 753, 766-76 (1998) (discussing causation evidence, in Joiner and more generally).
106. See, e.g., Adina Schwartz, A Systemic Challenge to the Reliability and Admissibility of Firearms and Toolmark Identification, 6 Colum. SCI. & Tech. L. Rev. 2 (2005) (arguing that "all firearms and toolmark identifications should be excluded until adequate statistical empirical foundations and proficiency testing are developed for the field").
107. See, e.g., Thomas Regnier, Barefoot in Quicksand: The Future of Future Dangerousness Predictions in Death Penalty Sentencing in the World of Daubert and Kumho, 37 Akron L. Rev. 469 (2004) (discussing the scientific weaknesses of predictions of future dangerousness, and the role of such predictions in Texas death-penalty hearings).
108. In Blum v. Merrell Dow Pharmaceuticals, Inc., 33 Phila. 193 (Pa. C.P. 1996), Merrell Dow's experts included Dr. Brent, who had not only testified over and over that Bendectin was not teratogenic, but had even published an article in which he analyzed seventeen Bendectin cases and concluded that every one of the plaintiffs had lied; and the Blums' experts included Dr. Alan Done, who had served as plaintiffs' expert in a number of Bendectin cases and, understandably troubled by some flaws in the clinical trials and animal studies on which the defendants relied, was willing to conclude that his mother's taking Bendectin while pregnant could have caused Jeffrey Blum to be born with clubbed feet. See also Susan Haack, What's Wrong with Litigation-Driven Science? An Essay in Legal Epistemology, 38 Seton Hall L. Rev. 1053, 1063-69 (2008) (analyzing the expert evidence in Blum).
109. See Regnier, supra note 81, at 480-82 (describing the role of Dr. Grigson in Texas deathpenalty hearings).
110. See, e.g., David Michaels & Celeste Monforton, Manufacturing Uncertainty: Contested Science and the Protection of the Public's Health and Environment, 95 AM. J. Pub. Health (Supplement 1) S39 (2005) (arguing that "opponents of public health and environmental regulation often try to 'manufacture uncertainty' by questioning the validity of scientific evidence on which the regulations are based").
111. One study found a statistically significant correlation between silicone breast implants and connective-tissue disorders; however, this study was seriously flawed, depending on subjects' own reports of their medical problems. Charles H. Hennekens et al., Self-reported Breast Implants and Connective-Tissue Diseases in Female Health Professionals, 275 J. AM. Med. Assoc. 616 (1996). In 1998, Judge Samuel Pointer's National Science Panel and, the following year an independent National Institute of Medicine Panel both reached the conclusion that there was no evidence that the implants cause such disorders. Report from National Science Panel, available at http://www.fjc.gov/Breimlit/Science/report.htm (last visited Nov. 4, 2008); Safety of Silicone Breast Implants (Stuart Bondurant, Virginia Ernster, & Roger Herdman, eds.) 211-32 (2000) (concluding that "[t]he committee finds no convincing evidence for atypical connective tissue ( disease in women with silicone breast implants").
112. See Ramirez v. State, 810 So. 2d 836, 840-41 (Fla. 2001) (reporting that expert witness Robert Hart's "specific knife mark identification evidence played a crucial role in the trial: [t]he trial court allowed the expert to state, 'The result of my examination made from the microscopic similarity, which I observed from both the cut cartilage and the standard mark, was the stab wound in the victim was made by this particular knife to the exclusion of all others.'").
113. The story was extensively reported in the Houston Chronicle. See, e.g., Alan Bernstein, Crime Lab Scandal Leaves Prosecutor Feeling Betrayed: Owmby Says Sutton Case Tests Faith in Justice System, Hous. Chron., May 16, 2003, at A23.
114. Roma Khanna & Steve McVicker, Hpd Ignored Warnings, Ex-Lab Man Says: Retired Official Says He Cited "Train Wreck,"Hous. Chron., June 23, 2003, at A1.
115. Roma Khanna & Steve McVicker, Police Chief Shakes Up Crime Lab; 2 Officials Quit, Others Disciplined, Hous. Chron., June 13, 2003, at A1.
116. Steve McVicker & Roma Khanna, 3 Say Chief Knew of Lab Woes; Bradford Says Some Disgruntled Employees Trying to Discredit Him, Hous. Chron., June 22, 2003, at A1.
117. Steve McVicker & Roma Khanna, 93 HPD Cases Under Scrutiny: Investigator's New Report Raises Figure From 27, Hous. Chron., May 11, 2006, at B1.
118. See, e.g., United States v. Llera-Plaza, Nos. CR. 98-362-10, CR. 98-362-11, 98-362-12, 2002 WL 27305 at *19 (E.D. Pa. Jan. 7, 2002), vacated, 188 F. Supp. 2d 549 (E.D. Pa. 2002) (allowing FBI fingerprint examiners to testify about how they raised latent prints, about the characteristics of these latents from the crime scene, et cetera, but not to testify as to whether there was a match with the defendant).
119. See Susan Haack, Proving Causation: The Holism of Warrant and the Atomism of Daubert, 4 J. Health & Biomed. L. 253 (2008).
120. In Joiner v. General Electric Co., 864 F. Supp. 1310, 1324-26 (1994), the District Court, noting that none of the animal studies or the epidemiological studies on which Joiner's experts relied was sufficient by itself to establish that PCB exposure promoted his small-cell lung cancer, ruled that Joiner's expert testimony was inadmissible. In Joiner v. General Electric Co., 78 F.3d 524, 532 (11th Cir. 1996), the Court of Appeals reversed this decision, concluding that "[o]pinions of any kind are derived from individual pieces of evidence, each of which by itself might not be conclusive, but when viewed in their entirety are the building blocks of a perfectly reasonable conclusion. .. ."At the Supreme Court, Justice Stevens' endorsed this idea. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 152 (1997). I am being deliberately noncommittal about whether the evidence Mr. Joiner's attorneys presented really did interlock in such a way as sufficiently to warrant his claim, in part because only part of that evidence is described in the Court's ruling in Joiner. In any case, the point here is only that evidence may interlock in this way, and that evidence law may prevent this from becoming apparent.
121. Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1310-12 (9th Cir. 1995).
122. For example, the scientists on Judge Pointer's National Science Panel (set up to sift through the evidence about silicone breast implants and connective-tissue disorders) included unpublished dissertations and letters, as well as published material, as providing evidence relevant to their task. Submission of Rule 706 National Science Panel Report, In Re Silicone Gel Breast Implant Product Liability Litigation, No. CV 92-P-10000-S, 8 (N.D. Ala. Dec. 1, 1998), available at www.fjc.gov/BreimLit/Science/report.htm (last visited Oct. 26, 2008).
123. The legal preoccupation extends beyond issues of scientific testimony; for example, in Kitzmiller v. Dover Area School District, 400 F. Supp. 2d 707, 735 (M.D. Pa. 2005), that there were no publications on Intelligent Design Theory in peer-reviewed scientific journals was taken as an indication that IDT is not science, but religion.
124. Reviewers for the Journal of the American Medical Association imposed a higher than usual standard of statistical significance in assessing the recent re-analysis of the Women's Health Initiative data on hormone-replacement therapy. Tara Parker Pope, New Study Reassures Most Users of Hormones, WALL ST. J., Apr. 4, 2007, at A1, A12.
125. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593-94 (1993).
126. See Haack, supra note 44, at 791, 808-15 (distinguishing the two senses of "peer review"and tracing the consequences of this ambiguity).
127. Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1317 (9th Cir. 1995).
128. See Haack, supra note 82, at 1078-81 (distinguishing the two senses of "litigation-driven").
129. Kaminski v. State, 63 So. 2d 339, 340 (Fla. 1952) (ruling lie-detector evidence inadmissible, and citing Frye, but without specifying the nature of the lie-detector technology at issue).
130. Don Grubin & Lars Mardin, Lie Detection and the Polygraph: A Historical Review, 16 J. Forensic Psychiatry & Psychol. 357, 359-60 (reporting that the systolic-blood-pressure deception test at issue in Frye was devised by William Marston in 1915; that John Larson developed the first modern polygraph machine (measuring blood pressure, pulse rate, and respiration rate) in 1921; and that in 1939 Leonarde Keeler added the galvanic-skin-response channel to the polygraph).
131. See e.g., David Lazer, Dna and the Criminal Justice System: the Technology of Justice 5 (2004) (writing of the "lack of receptivity of the system to post-conviction application of DNA analysis").
132. Margaret Berger, Lessons from DNA: Restriking the Balance between Finality and Justice, in Lazer, supra, at 109, 120 ("Prosecutors have been reluctant to report possible failing in the laboratory("). But see Anna S. Leggett & Joseph L. Peterson, The Evolution of Forensic Science: Progress Amid the Pitfalls, 36 Stetson L. REV. 621, 630 (2007) ("Soon after DNA evidence's initial introduction to courts in the mid-1980s, defense attorneys mounted a more vigorous challenge to prosecution test results (").
133. See Heinzerling, supra note 46, at 81 (arguing that "[o]ne consequence of this lax [abuse of discretion] standard of review is that district judges may come to different conclusions on the same evidence( One can imagine, therefore, the (perhaps unconscious) desire of judges to tidy up this mess by applying stare decisis principles to evidentiary rulings").
134. Doug Bandow, Keeping Junk Science Out of the Courtroom, Wall ST. J., July 26, 1999, at A23.
135. Sometimes, also, scientific bodies have disciplined members for their testimony in court: for example, in 1995 the American Psychiatric Association expelled Dr. Grigson for his irresponsible testimony in Texas death-penalty cases. Laura Bell, Groups Expel Psychiatrist Known for Murder Cases, Dallas Morning News, July 26, 1995, at A21.
136. "Dr. Death"Loses 2 Memberships Over Ethics Accusations, Fort Worth Star-Telegram, July 27, 1995, at A25. Subsequently, Dr. Grigson continued to testify, mostly for the defense, but in at least two instances for the prosecution. Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000).
137. Wood v. State, 18 S.W.3d 642 (Tex. Crim. App. 2000).
138. As I learned from Dr. Mark Frankel (Director of the CASE Project) at a workshop at Albany Law School in December 2006.
139. Soldo v. Sandoz Pharms. Corp., 244 F. Supp. 2d 434, 503-04 (W.D. Pa. 2003).
140. Soldo v. Sandoz Pharms. Corp., No. 98-1712, 2003 WL 22005893, ¶ 732 (W.D. Pa. Jan. 13, 2003) (order filing reports of court-appointed experts David Flockhart, William J. Powers, and David Savitz as part of the record).
141. Soldo, 244 F. Supp. 2d at 577.
142. Haack, supra note 4, at 256.
143. For example, by the time of United States v. Llera-Plaza, Nos. CR 98-362-10, CR 98-362-11, CR 98-362-12, 2002 WL 27305, at *19 (E.D. Pa. Jan. 7, 2002), vacated, 188 F. Supp. 2d 549 (E.D. Pa. 2002), there had been more than forty Daubert challenges to latent-fingerprint identification testimony, but none had succeeded. Six weeks later, in United States v. Llera Plaza, 188 F. Supp. 2d 549 (E.D. Pa. 2002), Judge Pollack reversed his restriction of such testimony.
144. Peter J. Neufeld, The (Near) Irrelevance of Daubert to Criminal Justice and Some Suggestions for Reform, 95 AM. J. PUB. Health (Supplement 1) S107, S107 (2005).
145. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 148-49 (1997).