Myths about `neutral' scientific experts.

The author refutes the idea that independent experts possess the ability to determine objective truth.

As litigation involving complex scientific issues grows more prevalent, judges who are likely to have both crowded dockets and little scientific training or experience may be tempted to use their powers under Fed. R. Evid. 706 (and state equivalents) to appoint ostensibly "independent," "neutral" experts to assist them and juries in determining "absolute" and "objective" scientific "truths." Significantly, corporate defendants are pressing judges --through briefs filed in the courts and through "judicial education" campaigns directed by corporate-funded tort "reform" think tanks and foundations--to yield to that temptation.

The impulse of busy judges to appoint such experts--and the yearning of corporations that are intentionally irresponsible and habitually negligent to have them do so--is understandable. This temptation always should be resisted, though. It should be resisted because the corporate campaign to have judges appoint theoretically neutral scientific saviors is based on a series of myths and misconceptions.

Despite myths to the contrary, there is no evidence that such putatively neutral experts are needed--neither any empirical studies demonstrating this need, nor even a single concrete example of a case in which a judge or jury was incapable of obtaining sufficient guidance from the parties. Further, there is no reason to suppose that truly neutral experts even exist.

Nevertheless, if and when courts find the impulse irresistible, counsel should insist that courts allow the parties to use all procedural safeguards--such as pretrial discovery and in-trial examination of the expert about his or her affiliations, background, and biases--to ensure that the judicial appointee does not usurp the jury's constitutional role as fact finder.

Myth Number 1: Harmony among scientists and certainty in their views constitute the rule, not the exception.

As the U.S. Supreme Court ironically observed in its landmark decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., if the history of science proves anything to a certainty it is that "there are no certainties in science."(1) University of Illinois law professor Ellen Deason explained why this is so in her comprehensive Oregon Law Review article on court-appointed experts:

   [F]rom today's perspective, ... enough accepted scientific conclusions have
   been abandoned, modified, or transcended in the last century to make the
   notion of scientific certainty seem a bit quaint. The scientific view of
   the world has changed as well, as reflected in its very language, from
   Newton's "laws" to Einstein's "relativity" and the Heisenberg "uncertainty
   principle." Whereas Newton's laws of motion were mathematical rules that
   governed a mechanistic world, Einstein redefined time and space in terms
   that are no longer absolute, but depend on the relative position of the
   individual observer. Heisenberg transformed the concept of the building
   blocks of nature by demonstrating that electrons cannot be located
   definitely in time or space in their atomic orbits, but only predicted in
   terms of probability. The solid certainties of Newtonian physics, where
   predictable effects followed inexorably from identifiable causes, have
   given way to a world of chance.(2)

According to Peter Huber, the tort "reform" guru of the corporate-funded Manhattan Institute, this historical assessment is too complicated to be true, or at least too complicated to serve the interests of his patrons. According to Huber's fable, "good science" is a uniquely simple and harmonious enterprise, one that progresses by the continuous accumulation of discrete truths, each of which is objective, universal, immutable, and complete.

Furthermore, says Huber, once these truths have been discovered, they are seamlessly incorporated into a scientific consensus, a consensus that is perfectly reflected in the scientific literature, as if each scientist were a stonemason, who, having unearthed perfectly shaped rocks, then effortlessly adds them to the smooth edifice of knowledge.(3)

Historians of science do not agree on much, but they concur that this picture is distorted. In fact, as opposed to fable, "a new theory, however special its range of application, is seldom or never just an increment to what is already known. Its assimilation requires the reconstruction of prior theory and the reevaluation of prior fact, an intrinsically revolutionary process."(4) Thus, "science advances primarily by replacement, not by addition."(5)

For these reasons, Sir Austin Bradford Hill, one of the 20th century's preeminent epidemiologists, cautioned that "we can[not] usefully lay down some hard-and-fast rules of evidence that must be obeyed before we can accept cause and effect," because "all scientific work is incomplete--whether it be observational or experimental. All scientific work is liable to be upset or modified by advancing knowledge. That does not confer on us a freedom to ignore the knowledge we already have, or to postpone action that it appears to demand at a given time."(6)

Thus, the history of science reveals not only that disagreements among scientists are frequently harsh but also that disharmony among schools of scientific thought is often prolonged.(7) Importantly, scientists not only recognize that disagreement is common, but they have come to accept discord and dissension as positive goods, and, indeed, as inescapable features of their work.

As a panel of the authoritative National Research Council recently remarked:

   It is disquieting to many nonscientists that scientific experts
   representing different interests can disagree markedly. There is an
   implicit assumption that disagreement among scientists should be rare
   because science is capable of objective, if not always experimental,
   verification. In fact, however, differences of opinion are common in
   science, although the arguments are spread out over many research papers
   and long time spans and are usually couched in careful, if not polite,
   language.(8)

Last spring, the U.S. Supreme Court adopted the same view in Kumho Tire Co. v. Carmichael, recognizing that there is a "range where experts might reasonably differ, and where the jury must decide among the conflicting views of different experts, even though the evidence is `shaky.'"(9) The Kumho Court's declaration reaffirms the historic and constitutionally protected role of the jury in sorting out disagreements among qualified and reliable experts and embodies an express recognition that the purpose of expert testimony is not to supplant the jury but rather to guide it in understanding the significance of facts.

Myth Number 2: There is a large pool of "independent," "neutral" experts who can be counted on to reveal the "true" answers to confused judges and credulous juries.

Judges should be wary of experts who portray themselves as independent, neutral, objective, and free of all biases, as neutrals are as nonexistent in science as they are in the famously strike-torn coalfields of Harlan County, Kentucky. And this is as true of renowned public health officials and famous university scientists, who are commonly presumed to be independent and free of bias, as it is of researchers directly employed by major corporations.

For example, Dr. C. Everett Koop, the former U.S. surgeon general, who was once praised for his objectivity, lionized as "one of the nation's most trusted health experts,"(10) and revered for his courage in standing up to corporate interests (most notably tobacco companies), has been caught trading on that reputation and advancing the interests of the same malefactors of great wealth he once reviled.

Koop has been castigated for downplaying health-care worries about latex gloves, in testimony before Congress and a lobbying phone call to the director of the National Institute for Occupational Safety and Health, without disclosing that a glove manufacturer paid him $1 million for unspecified services.(11) He also has been widely faulted for "steps" he "took to profit from his name and reputation," including "establishing financial ties to companies whose products and services" he praised on a Web site he created, promoted as "present[ing] objective health information."(12)

What is true of superstars like Koop, who presumably has no great need to establish his name, is regrettably even more true of up-and-coming scientists and scholars. As University of Michigan law professor Rebecca S. Eisenberg has explained, this is so in large part because scientific and biomedical research on university campuses, which once was fueled almost exclusively by federal funds, now is dominated by corporate grant makers, "who increasingly seek to control the agenda of sponsored research and the dissemination of its results."(13) Indeed,

   several studies on the effects of industry sponsorship indicate that these
   concerns about conflict of interest are justified. One showed that research
   funded by the chemical industry is more likely than government-funded
   research to conclude that occupational exposure to chemical agents is not
   harmful. Another study found that research sponsored by the pharmaceutical
   industry is more likely than research funded through other sources to favor
   the new drug being evaluated. Similarly, a third study showed that research
   sponsored by pharmaceutical companies almost always concludes that the
   sponsor's drug is equivalent or superior to comparison drugs, even when the
   data do not completely support this conclusion. These studies provide
   compelling evidence that industry funding may influence the type of
   research conducted and the conclusions drawn from the data. History has
   also shown that, when scientific findings are particularly damaging,
   industry may try to conceal, manipulate, or deny the findings.(14)

Other researchers have discovered equally alarming discrepancies between the myth of scientific neutrality and the reality of corporate bias. For example, "in an anonymous survey [by Harvard University and University of Minnesota researchers], more than half of the university scientists who received gifts from drug or biotechnology companies admitted that the donors expected to exert influence over their work, including review of academic papers before publication...."(15) Yet another study "document[ed] how corporate sponsorship of research can restrict the free flow of scientific information" and uncovered that "one of every five U.S. medical scientists has delayed publication of research results for half a year or more, sometimes to protect financial interests" of the corporate sponsors.(16)

Not surprisingly, corporate dominance affects everything from what is (and what is not) researched to which results are published (and which ones are suppressed). The decades-long fraud perpetrated by the tobacco companies and the Council for Tobacco Research, the ostensibly "independent" research group secretly created and funded by the industry, is but one example of these tendencies.(17)

These corrupt trends did not end with tobacco. More recent examples abound of systematic fakery and fraud by captive scientists caught up in the pursuit of personal fame and private profit.(18)

In the last few months alone, news accounts have highlighted: (1) that one of the manufacturers of the diet drug fen-phen hired ghostwriters to draft--and retained other "neutral" experts to sign and publish--articles that aimed to promote the drug and the manufacturer; (2) Exxon's role in "bankrol[ling]" supposedly objective social science studies that would be useful in limiting its liability for punitive damages related to the 1989 Exxon Valdez oil spill; and (3) widespread flouting of medical journal conflict-of-interest reporting requirements by scientists who receive funding from drug companies.(19)

Significantly, these ethical lapses, in violation of peer review conflict-of-interest rules, plague the most renowned journals, not just the second-rate ones. Thus, The New England Journal of Medicine, which promotes itself, and is widely regarded, as "the world's top-ranked medical journal and a leading voice in biomedical ethics,"

   violated its own ethics policy numerous times in the last three gears,
   publishing articles by researchers with drug company ties and not
   disclosing the potential conflicts of interest. ... [A]n analysis of 36
   "Drug Therapy" review articles [published by The New England Journal] since
   1997 [conducted by a team of reporters for] The Los Angeles Times ...
   identified eight articles by researchers with undisclosed financial links
   to drug companies that marketed treatments evaluated in the articles. The
   Times' finding ... highlights the expanding role that drug company funding
   and perquisites can play in some researchers' careers, raising questions
   about impartiality that lie at the heart of scientific inquiry.(20)

To make matters worse, because of systemic defects in the scientific publications' peer review system,(21) these transgressions of academic norms--and social expectations--are only infrequently discovered.(22)

Moreover, even researchers who avoid becoming directly entangled in--and compromised by--the "University-Industrial Complex" cannot be counted on to perfectly distill "the truth" from "the facts."(23) As Harvard's noted scientist and historian of science Stephen Jay Gould has observed, "`Facts are not pure and unsullied bits of information; culture ... influences what we see and how we see it. Theories, moreover, are not inexorable inductions from facts. The most creative theories are often imaginative visions imposed upon facts; the source of imagination is also strongly cultural.'"(24)

Even more basically, a true expert will not be without strongly held views. A specialist is unlikely to be neutral about the issues that divide his colleagues, while a nonspecialist may be all too willing to equate truth with prevalence, that is, wisdom with the views that are published most often. These biases are inconsistent with any conception of neutrality.

Finally, just as courts should be skeptical of individual experts who portray themselves as independent, neutral, and free of biases, they should be equally wary of organizations that style themselves as neutral, independent, and bias-free. Case in point is the American Association for the Advancement of Science (AAAS), which has been at the forefront of groups urging judges to appoint neutral experts, and whose newly created Court Appointed Scientific Experts project offers to supply to the courts experts whom the association claims will be neutral. It is doubtful that they will be.

Although the AAAS has gained fame as the nation's largest scientific organization, with approximately "143,000 scientists, engineers, science educators, policymakers, and others dedicated to scientific and technological progress in service to society," and "285 affiliated organizations,"(25) it would seem that some of the association's constituents are more influential, and less neutral, than others. Thus, although many AAAS affiliates are independent societies of scientists--the American Anthropological Association or the Society for Integrative and Comparative Biology--other affiliates --like the American Industrial Hygiene Association (AIHA),(26) the Industrial Research Institute (IRI),(27) and the Poultry Science Association(28)--are scarcely more than front groups for corporate America.

For example, 11 of the 16 members of the AIHA's board of directors are employed by Ford Motor Co., 3M, Exxon, and Dow Chemical. Similarly, the IRI is an umbrella group of "over 290 leading industrial companies."(29)

To make matters, worse, major funding for the AAAS's experts project comes from the right-wing Leland Fikes Foundation,(30) while the impetus and guidance for that project came from the "Scientific Freedom, Responsibility and Law Program," a joint venture of the AAAS and the American Bar Association that was formed at the behest of the corporate-sponsored American Chemical Society, among other groups, and that is now dominated by corporate executives and their lawyers.(31)

Myth Number 3: Courts need to appoint "neutral" experts because judges and juries are incapable of winnowing scientific wheat from nonscientific chaff.

Contrary to myth, the overwhelming consensus of scientific evidence demonstrates that lay judges and lay juries are both quite capable of winnowing scientific wheat from nonscientific chaff.

In an amicus curiae brief submitted last spring to the U.S. Supreme Court in the Kumho Tire Co. v. Carmichael case, Duke Law Professor Neil Vidmar, Wisconsin Law Professor Marc Galanter, Michigan Law Professor Richard Lempert, Cornell Law Professor Theodore Eisenberg, American Bar Foundation scholars Joanne Martin and Stephen Daniels, and a dozen other professors of law, sociology, political science, and history(32) jointly challenged the "empirically unsupported assertions about jury behavior in response to expert testimony, namely that juries are frequently incapable of critically evaluating expert testimony, are easily confused, give inordinate weight to expert testimony, are awed by science, defer to the opinions of unreliable experts, and, implicitly, that in civil trials juries tilt in favor of plaintiffs and against corporations."(33)

According to these scholars:

   The body of empirical research findings conducted by independent
   researchers and published in leading social science journals, law reviews,
   and books, taken as a whole, strongly contradicts the [defendants']
   assertions. Surveys of both federal and state judges show that the
   overwhelming majority of judges believe that juries are competent and
   conscientious. Studies comparing judges' opinions of the evidence at trial
   show substantial agreement with the verdicts rendered by juries. Research
   comparing jury verdicts in cases in which expert evidence is a critical
   issue, moreover, shows positive correlations with independent criteria of
   performance. Case studies have produced similar findings. Experimental
   studies show mixed results but primarily support the jury system. Findings
   lend no support to the charge that, in general, juries hold pro-plaintiff
   biases or anti-business sentiments. In fact, the data tend to indicate that
   jurors are often skeptical of plaintiff claims.(34)

Myth Number 4: Judicial appointment of "neutral" experts is a cost-free way of improving the justice system.

Contrary to myth, judicial appointment of "neutral" experts is not a cost-free way of improving the justice system. In fact, this cure is worse than the disease it aims to alleviate.

Proponents of "neutral" experts consistently ignore the many dangers that such appointments pose to the jury system. Indeed, because of the likelihood that both judges and juries will be inclined to abdicate their own decision-making responsibilities to the supposedly disinterested judgments made by such experts, these appointments could undermine the adversarial process that has stood at the heart of the Anglo-Saxon judicial system for more than 800 years.

As Professor Deason concluded:

   Given the multitude of factors that may influence an expert's opinion,
   however, unquestioned deference to an appointed expert simply because she
   is not sponsored by a party is inappropriate. An appointed expert is not
   necessarily any less biased in her approach to the issues than a party
   expert; therefore, her testimony should not automatically be accorded more
   weight. Furthermore, excessive deference may carry with it some independent
   costs. For example, confidence in the decision-making process is undermined
   if the decision maker seems to be deferring excessively, even if the
   deference is given to an unbiased source.(35)

Finally, because the court is likely to require the parties to split the fees charged by the neutral expert, access to justice may become too expensive for injured individuals to pursue. In that respect, this scheme not only adds insult to injury by obliging the plaintiff to pay for his own executioner but it discriminates against those who are least able to bear the expense.

Safeguards

Procedural safeguards must be available to the parties to minimize the risks posed by "neutral" experts. As shown, there is no reason for judges to appoint neutral experts in any case.

If they do so, however, they should allow the parties to obtain discovery from, depose, and examine the appointed "neutral" experts just as if the experts had been retained by opposing counsel in the case. Anything less not only runs the risk of vitiating the accuracy of fact-finding by a jury in any single case but also undermines the jury's crucial role in our constitutional system of adjudication.

Notes

(1.) Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590 (1993) (citation omitted).

(2.) Ellen E. Deason, Court-Appointed Expert Witnesses: Scientific Positivism Meets Bias and Deference, 77 OR. L. REV. 59, 99 (1998) (emphasis added). See generally CHRISTOPHER CERF & VICTOR NAVASKY, THE EXPERTS SPEAK: THE DEFINITIVE COMPENDIUM OF AUTHORITATIVE MISINFORMATION (2d ed. 1998) (providing numerous examples of faulty assessments and predictions by great scientists, inventors, and other experts).

(3.) PETER HUBER, GALILEO'S REVENGE: JUNK SCIENCE IN THE COURTHOUSE (1991). For an encyclopedic critique of Huber's "junk scholarship," see Kenneth J. Chesebro, Galileo's Retort: Peter Huber's Junk Scholarship, 42 AM. U.L. REV. 1637 (1993).

(4.) THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 7 (2d ed. 1970).

(5.) STEPHEN JAY GOULD, THE MISMEASURE OF MAN 322 (1981).

(6.) Austin Bradford Hill, The Environment and Disease: Association or Causation? 58 PROC. ROYAL SOC'Y MED. 295, 299-300 (1965).

(7.) See generally KUHN, supra note 4.

(8.) NATIONAL RESEARCH COUNCIL, COMMISSION ON GEOSCIENCES, ENVIRONMENT, AND RESOURCES, SETTING PRIORITIES FOR DRINKING WATER CONTAMINANTS 17-18 (1999).

(9.) Kumho Tire v. Carmichael, 119 S. Ct. 1167, 1177 (1999) (citing Daubert, 509 U.S. 579, 596).

(10.) Holcomb B. Noble, Koop Criticized for Role in Warning on Hospital Gloves, N.Y. TIMES, at A22.

(11.) Id.

(12.) Id. (emphasis added).

(13.) Rebecca S. Eisenberg, Academic Freedom and Academic Values in Sponsored Research, 66 TEX. L. REV. 1363, 1363 (1988). See Deborah E. Barnes & Lisa A. Bero, Industry-Funded Research and Conflict of Interest, 21 J. HEALTH POL. POL'Y & L. 515, 517 (1996).

(14.) Id. (citations omitted).

(15.) Sheryl Gay Stolberg, Gifts to Science Researchers Have Strings, Study Finds, N.Y. TIMES, Apr. 1, 1998, at A1.

(16.) Richard A. Knox, Biomedical Results Often Are Withheld: Study Examines Researchers; Financial Links to Corporations, BOSTON GLOBE, Apr. 16, 1997, at A1.

(17.) See generally Chesebro, supra note 3, at 1679-86 & nn. 209-32; see also ROBERT BELL, IMPURE SCIENCE: FRAUD, COMPROMISE, AND POLITICAL INFLUENCE IN SCIENTIFIC RESEARCH 105-82 (1992); WILLIAM BROAD & NICHOLAS WADE, BETRAYERS OF TRUTH: FRAUD AND DECEIT IN THE HALLS OF SCIENCE 140-63 (1983).

(18.) See, e.g., BELL, supra note 17, at 106-10, 113-42; BROAD & WADE, supra note 17, at 140-63; David Goodstein, Scientific Fraud, 60 AM. SCHOLAR 505, 505-15 (1991).

(19.) See Charles Ornstein, Fen-phen Maker Accused of Funding Journal Articles: Company Defends Input It Had on Published Works, DALLAS MORNING NEWS, May 23, 1999, at A1; Elizabeth Amon, Exxon Bankrolls Critics of Punitives, Then It Cites the Research in Appeal of $5.3 Billion Valdez Award, NAT'L L.J., May 17, 1999, at A1; Ralph T. King Jr., Medical Journals Rarely Disclose Research Ties, WALL ST. J., Feb. 2, 1999, at B1.

(20.) Terence Monmaney, Medical Journal May Have Flouted Own Ethics 8 Times, L.A. TIMES, Oct. 21,1999, at A1; see also Deason, supra note 2, at 110.

(21.) As four scholars of the peer review system explained in the amicus brief they submitted on the plaintiffs' behalf in Daubert: "The lure of the peer review system stems from six largely erroneous beliefs, myths that gain no validity from the fact that they may be widely held.... [N]one of these myths can withstand serious scrutiny. First, the peer review system is not intended to yield `the truth, the whole truth, and nothing but the truth.' Second, peer review journals do not replicate and verify the experiments, research and analytical techniques, or data reported in the papers submitted for publication. Third, peer review journals do not warrant that the ideas and information contained in the articles they publish are accurate, valid, certain, reliable, or true, or otherwise amount to `good science.' Fourth, the mere fact of publication does not mean that the ideas and information reported in an article are `generally accepted' by, or represent the `consensus' views of, the relevant academic community. Fifth, conversely, the fact that ideas and information have not been published in a peer review journal does not mean that they are not `generally accepted,' or that they are `generally rejected,' or that they cannot represent `good science.' Finally, the peer review system should not be regarded as more rigorous and reliable than the jury system's use of cross-examination." Brief Amicus Curiae of Darryl E. Chubin, Edward J. Hackett, David M. Ozonoff, and Richard W. Clapp, filed in Daubert, 92-102.

(22.) See Lars Noah, Sanctifying Scientific Peer Review: Public as a Proxy for Regulatory Decision-making, 59 U. PITT. L. REV. 677, 693-709 (1998); Drummond Rennie, Editorial, Thyroid Storm, 277 JAMA 1238 (1997); David Blumenthal et al., Withholding Research Results in Academic Life Sciences: Evidence from a National Survey of Faculty, 277 JAMA 1224, 1226 (1997). See also Philip E. Enterline, Commentary, Toxic Torts: Are They Poisoning the Scientific Literature?, 30 AM. J. INDUS. MED. 121, 122 (1996); DARYL E. CHUBIN & EDWARD J. HACKETT, PEERLESS SCIENCE: PEER REVIEW AND U.S. SCIENCE POLICY (1990); Brief Amicus Curiae of Darryl E. Chubin, Edward J. Hackett, David M. Ozonoff, and Richard W. Clapp, filed in Daubert, 92-102.

(23.) Deason, supra note 2, at 102.

(24.) Quoted in id. at 103-04 (citation omitted). Thus, "an individual and his scientific framework are not independent from the attitudes and mores of the broader society. Even with safeguards such as blinding, empirical measurements do not necessarily lead to completely `true' answers or objective opinions;" instead, scientific theories and even "scientific observations" "can depend on the cultural context of the scientist." Id. at 102 (footnotes omitted). In sum, what a scientist sees, thinks, and reports is shaped by the "cultural context of science," which "comprises both scientific conventions and more broadly applicable social norms." Id. at 122.

(25.) AAAS "General Information," available on the organization's Web site, http://www.aaas.org.

(26.) See the AIHA's Web site, http://www.aiha.org.

(27.) See the IRI's Web site, http://www.iri.org.

(28.) See the Poultry Science Association's Web site, http://www.psa.uiuc.edu/.

(29.) See http://www.iri.org.

(30.) See http://www.aaas.org/spp/case/case.htm; Christine McConville, Quinacrine Crimes, IN THESE TIMES, Mar. 21, 1999, at 14. See also Alix M. Freedman, Population Bomb: Two Americans Export Chemical Sterilization to the Third World, WALL ST. J., June 18, 1998, at A1.

(31.) See http://www.aaas.org/spp/dspp/sfrl/sfrl. htm.

(32.) See Brief Amici Curiae Neil Vidmar et al., filed in Kumho Tire Co. v. Carmichael, 1998 WL 734434 (Oct 19. 1998).

(33.) Id. at 2.

(34.) Id. at 3.

(35.) Deason, supra note 2, at 122.

Ned Miltenberg is ATLA's senior counsel and associate director of Legal Affairs for constitutional litigation. He has drafted U.S. Supreme Court briefs in Daubert v. Merrell Dow Pharmaceuticals, Inc., General Electric Co. v. Joiner, and Kumho Tire Co. v. Carmichael.