A group of papers delivered by distinguished scholars at third Coronado Conference of the Project on Scientific Knowledge and Public Policy (SKAPP) have just been published as a “mini-monograph” “Science for Regulation and Litigation,” in Environmental Health Perspectives, the journal of the National Institute for Environmental Health Sciences.

SKAPP’s conference, held in March 2006, was titled “Truth and Advocacy: The Quality and Nature of Litigation and Regulatory Science.” Conference participants – including scholars from the fields of science, law, ethics, and public health – examined science generated in the context of regulation or litigation, focusing on whether science conducted in the adversary/advocacy context should be judged by the same standards as science conducted outside of it, and how the incentives and intentions that operate in the courtroom shape scientific inquiry.

One of the most influential court decisions regarding the use of science in the litigation is Daubert v. Merrell Dow Pharmaceuticals, Inc., which the Supreme Court decided in 1993 and then remanded to the Ninth Circuit Court of Appeals. The Daubert decision directed federal judges to serve as “gatekeepers” of expert testimony and to examine the “relevance” and “reliability” of testimony offered by experts. In the Ninth Circuit Court of Appeals, Judge Alex Kosinski specifically instructed judges to assign lower credibility to “litigation science,” which he defined as studies that begin after litigations is initiated and that are funded by one of the parties or their attorneys.

Mini-monograph papers by Leslie Boden and David Ozonoff of the Boston University School of Public Health (“Litigation-Generated Science: Why Should We Care?”) and by Sheila Jasanoff of Harvard University (“Representation and Re-Presentation in Litigation Science”) explore problematic aspects of Judge Kosinski’s decision. Boden and Ozonoff point out that science done explicitly to support litigation is not the only science that is potentially influenced by financial considerations, suggest that “cross-examination by attorneys aided by competent experts may serve the ends of justice at least as well as peer review,” and conclude that a sufficient case does not exist for treating certain kinds of litigation-generated science differently. Jasanoff offers this critique of Kosinski’s decision:

That approach buys into the faulty premise that there are external criteria, lying outside the legal process, by which judges can distinguish between good and bad science. It erroneously assumes that judges can ascertain the appropriate criteria and objectively apply them to challenged evidence before litigation unfolds, and before methodological disputes are sorted out during that process. Judicial screening does not take into account the dynamics of litigation itself, including gaming by the parties and framing by judges, as constitutive factors in the production and representation of knowledge.

She recommends that judges act more like referees than like gatekeepers, focusing on the process that generates litigation science rather than on its validity or invalidity. This, she argues, would put judges “in a position to structure agreements among the parties that would be most conducive to producing relevant and reliable knowledge.”

The other articles in the mini-monograph are:

• “Rethinking the Threats to Scientific Balance in Contexts of Litigation and Regulation” by William R. Freudenberg

• “Scientific and Legal Perspectives on Science Generated for Regulatory Activities” by Carol J. Henry and James W. Conrad, Jr.

• “Conflicting Views on Chemical Carcinogenesis Arising from the Design and Evaluation of Rodent Carcinogenicity Studies” by Ronald L. Melnick, Kristina A. Thayer, and John R. Bucher

The articles have been published online and in the January issue of Environmental Health Perspectives. They are available from both the Environmental Health Perspectives website, www.ehponline.com, and the SKAPP website, www.DefendingScience.org.

Read more
Papers from Coronado III, Truth and Advocacy: The Quality and Nature of Litigation and Regulatory Science
Coronado Conferences
Daubert v. Merrell Dow Pharmaceuticals, Inc.