Newspaper readers nationwide chuckled recently, reading Ft. Lauderdale Sun-Sentinel and Associated Press stories about a southern Florida sports club that had banned soap, shampoo and shaving cream for the club's locker room.(1)
The club had recently paid more than $50,000 to settle a lawsuit filed by a patron who slipped in the shower.(2) Concerned about the financial impact of future lawsuits, the club did the logical thing: it banned everything slippery.
Although this story highlights much that is wrong with the U.S. civil justice system - frivolous lawsuits, excessive awards and the costs and fear they impose upon people who have done nothing wrong - this story was far from the most significant legal news of recent days. Those honors go to a story from the U.S. Supreme Court, which recently decided a landmark case regarding the admissibility of shaky, unsound expert testimony in federal courtrooms, and to efforts by Senator Richard Shelby (R-AL) to make federally-funded researchers more accountable to the public.
In the Supreme Court case, Kumho Tire Co. v. Carmichael, the Supreme Court held that trial judges have a responsibility under Federal Rule of Evidence 702 (3) to ensure that all expert testimony must be based on reliable scientific theories - even if the expert witness is not a scientist. (4)
In so doing, the Court extended its decision in 1993's Daubert v. Merrell Dow Pharmaceuticals, where it found that, in examining the admissibility of scientific testimony, trial judges may exclude expert testimony if the judge decides that an expert scientific witness' theory has not been or cannot be tested; if it has not been peer-reviewed or published; if the error rate of the theory or technique is unknown and if low-quality standards, or no standards, were in use during the testing or operation of the theory or technique in question.
In other words, the Supreme Court cracked down on the use of junk science and crackpot theories by expert (often paid) witnesses in federal courtrooms, even when the expert witness claims only technical or other specialized, rather than purely scientific, knowledge.
Some criticize the Supreme Court's stand, saying that juries, not judges, should determine the reliability of expert witness testimony.(5) Others say that the Court's action will help ensure fair trials by making it more likely that the testimony of expert witnesses is both relevant and reliable, and that expert witness reform will help correct a U.S. litigation crisis that costs American consumers over $150 billion per year,(6) adding 2.5% to the cost of every new product in America.(7)
Justice Stephen G. Breyer, a Clinton appointee who wrote the majority opinion in Kumho Tire, clearly falls into the latter camp. In a February 1998 speech to the American Association for the Advancement of Science, Justice Breyer complained that a court, relying on expert witnesses, once determined that dropping a can of orange juice could cause breast cancer.
Justice Breyer further explained his view of the role and importance of Daubert:
Our Court recently made clear that the law imposes upon trial judges the duty, in respect to scientific evidence, to become evidentiary "gatekeepers." The judge, without interfering with the jury's role as trier of fact, must determine whether purported scientific evidence is "reliable" and will "assist the trier of fact," thereby keeping from juries testimony that [is wrong]. Trial judges, looking for ways better to perform this function, increasingly have used pretrial conferences to narrow the scientific issues in dispute, pretrial hearings where potential experts are subject to examination by the court, and the appointment of specially trained "law clerks" or scientific "special masters."(8)
In his majority opinion in Kumho Tire, Justice Breyer noted that Rule 702 "makes no relevant distinction between 'scientific' knowledge and 'technical' or 'other specialized' knowledge" in expert testimony. Furthermore, said Breyer, it would prove difficult for judges to administer rules that "depended upon a distinction between 'scientific' knowledge and 'technical' or 'other specialized' knowledge." As a result, he said, Daubert's rules allowing judges to judge the reliability of scientific expert witnesses should also apply to expert witnesses claiming only technical or other specialized knowledge.
The Supreme Court is not the only venue to act recently in support of sound science in governmental decision-making. The U.S. Congress recently did so as well, although its reform is in danger of being reversed.
Due to the efforts of Senator Richard Shelby (R-AL), last year Congress approved a provision within the fiscal year 1999 omnibus appropriations law that makes it possible for the public to obtain and review research data developed during research conducted with federal grants. Specifically, the law requires the director of the Office of Management and Budget to make all federally-funded research data available to the public under the Freedom of Information Act (FOIA).(9) In keeping with the provisions of the FOIA, research data developed under federal contracts, affecting national security, trade secrets and commercial information, medical and personnel records, law enforcement information and geological data are exempt from this new "sunshine in government" provision.
This new law is important, even critical, because research data is currently used by the federal government to develop and defend federal policies, findings and regulations. Yet when members of the public objected to these policies, or even challenged them in court, they up to now have had no right to examine the science the government said justified their policies and rules.
Worse, in some cases, government agencies actually exploited the fact that the public wasn't permitted to review scientific data it had paid for by deciding in advance what conclusions it wanted scientists to reach in their research, and then hiring the scientists who would give them only the results the government wanted. On other occasions, without the approval or knowledge of any government agency, researchers have reached conclusions on matters of important public interest that were not warranted by the results of their research.
In a Roper Starch Worldwide poll conducted in 1997, 92% of the public said it agreed with Shelby's position: specifically, that basic data from government-funded research studies that are used to support a government policy or regulation should be released to the people, the communities and/or the businesses that will be affected by the policy or the regulation. 80% said they would question the trustworthiness of a study whose results were kept secret.
Despite broad public support for the public's right to know the research data behind federal regulations, Rep. George Brown (D-CA) on January 6, 1999 introduced a bill in Congress, H.R. 88, to "to repeal the requirement regarding data produced under Federal grants and agreements awarded to institutions of higher education, hospitals, and other nonprofit organizations." In introducing the bill, Brown called Shelby's provision in support of the public's right to know "a major threat to academic freedom in the United States."(10) Although the FOIA protects the dissemination of "personnel and medical files and similar files of which would constitute a clearly unwarranted invasion of personal privacy,"(11) in a December 1998 letter to the director of the Office of Management and Budget, Brown and 22 other Members of Congress complained that participants in federally-funded research studies might be "reluctant to divulge sensitive personal information" if OMB adhered to the particulars of Shelby's law.(12)
In their letter to the OMB, Brown and the other Members of Congress also complained that responding to FOIA requests could be expensive for researchers, although they conceded that "the language of the Omnibus Bill indicates that agencies could charge a user fee for obtaining data at the request of a private party."(13) The FOIA even permits researchers to charge the fee in advance if costs of complying with the FOIA request are expected to exceed $250.(14)
The OMB may be bowing to the pressure exerted by Brown and other members of the scientific community who do not wish to have their federally-funded research scrutinized, as early indications are that the OMB may move to enforce the law only as it relates to published federal research data used by the federal government to develop regulations and federal government policies. This partial enforcement would exclude from public view pre-publication research data, even if federal agencies use that data to support regulations, policies and risk assessments. The OMB has not, however, published final rules, and could decide to enforce the law as approved by Congress.
The efforts by Congressman Brown and others who would involve the public in studies only as research subjects or to pay the bills for scientific research are unfortunate. Some observers believe that the motive of at least some of those opposed to the enforcement and continuation of this "sunshine" law are political or ideological. Releasing data to the public can be politically or ideologically inconvenient at times. But democracy isn't always convenient - it just beats all the alternatives.
Not only does the public have a right to view research data that it paid
for, but an open research process, with its attendant public scrutiny of
scientists' work, is likely to lead to more honest, more reliable research
1 Associated Press, "Club in Legal Lather Bans Soap," The Australian, March 24, 1999.
2 Joe Kollin, "Clubhouses Ban Soap in Locker Room Showers; Bad Falls Can Produce Expensive Lawsuits," Ft. Lauderdale Sun-Sentinel, March 13, 1999.
3 Rule 702 reads: "If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or 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."
4 Kumho Tire Company, Ltd., et al. v. Patrick Carmichael, etc., et al., U.S. Supreme Court No. 97-1709, decided March 23, 1999.
5 Richard B. Schmitt, "Witness Stand: Who Is an Expert? In Some Courtrooms, the Answer is Nobody," Wall Street Journal, June 17, 1997, p. A1.
6 "Improving the American Legal System: The Economic Benefits of Tort Reform," Study by the Joint Economic Committee of the U.S. Congress, March 1996.
7 U.S. Senator Spencer Abraham, "The Case for Legal Reform," Speech published by the California Association for Legal Reform.
8 Supreme Court of the United States Associate Justice Stephen G. Breyer, "The Interdependence of Science and Law," Address at the 1998 American Association for the Advancement of Science Annual Meeting and Science Innovation Exposition, Philadelphia, Pennsylvania, February 16, 1998.
9 Federal Register, Volume 64, No. 23, February 4, 1999, Notices.
10 Remarks of the Honorable George E. Brown in the House of Representatives on January 6, 1999 as reported in the Congressional Record, January 7, 1999, Volume 145, Number 2.
11 The Freedom of Information Act, 5 U.S.C. § 552, as amended by Public Law No. 104-231, 100 Stat. 3048 ("the Electronic Freedom of Information Act").
12 Letter from the Honorable George E. Brown and Members of Congress Nita Lowey, David Price, Howard Berman, Edolphus Towns, Bob Filner, Lynn Woolsey, Carolyn McCarthy, Maurice Hinchey, Major Owens, Henry Waxman, Albert Wynn, Lynn Rivers, Lois Capps, James Traficant, Jr., Louise Slaughter, Jose Serrano, John Porter, James Walsh, Sherwood Boehlert, Constance Morella, Vernon Ehlers and Steven LaTourette to the Honorable Jack Lew, director, Office of Management and Budget, December 7, 1998.
13 Letter from the Honorable George E. Brown and 22 other Members of Congress to the Honorable Jack Lew, director, Office of Management and Budget, December 7, 1998.
14 The Freedom of Information Act, 5 U.S.C. § 552, as amended by Public Law No. 104-231, 100 Stat. 3048 ("the Electronic Freedom of Information Act").
Amy Ridenour is president of The National Center for Public Policy Research. Comments may be sent to [email protected]