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NOTICE: The project that is the subject of this report was approved by the Governing Board of the National Research Council, whose members are drawn from the councils of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine. The members of the committee responsible for the report were chosen for their special competences and with regard for appropriate balance.
This report was supported by a gift from Procter & Gamble, the Federal Judicial Center, and The National Academies Endowment Fund. Any opinions, findings, conclusions, or recommendations expressed in this publication are those of the author(s) and do not necessarily reflect the views of the organizations or agencies that provided support for the project.
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THE NATIONAL ACADEMIES
National Academy of Sciences
National Academy of Engineering
Institute of Medicine
National Research Council
The National Academy of Sciences is a private, nonprofit, self-perpetuating society of distinguished scholars engaged in scientific and engineering research, dedicated to the furtherance of science and technology and to their use for the general welfare. Upon the authority of the charter granted to it by the Congress in 1863, the Academy has a mandate that requires it to advise the federal government on scientific and technical matters. Dr. Bruce M. Alberts is president of the National Academy of Sciences.
The National Academy of Engineering was established in 1964, under the charter of the National Academy of Sciences, as a parallel organization of outstanding engineers. It is autonomous in its administration and in the selection of its members, sharing with the National Academy of Sciences the responsibility for advising the federal government. The National Academy of Engineering also sponsors engineering programs aimed at meeting national needs, encourages education and research, and recognizes the superior achievements of engineers. Dr. Wm. A. Wulf is president of the National Academy of Engineering.
The Institute of Medicine was established in 1970 by the National Academy of Sciences to secure the services of eminent members of appropriate professions in the examination of policy matters pertaining to the health of the public. The Institute acts under the responsibility given to the National Academy of Sciences by its congressional charter to be an adviser to the federal government and, upon its own initiative, to identify issues of medical care, research, and education. Dr. Kenneth I. Shine is president of the Institute of Medicine.
The National Research Council was organized by the National Academy of Sciences in 1916 to associate the broad community of science and technology with the Academy’s purposes of furthering knowledge and advising the federal government. Functioning in accordance with general policies determined by the Academy, the Council has become the principal operating agency of both the National Academy of Sciences and the National Academy of Engineering in providing services to the government, the public, and the scientific and engineering communities. The Council is administered jointly by both Academies and the Institute of Medicine. Dr. Bruce M. Alberts and Dr. Wm. A. Wulf are chairman and vice chairman, respectively, of the National Research Council.
SCIENCE, TECHNOLOGY, AND LAW PANEL
DONALD KENNEDY, Co-Chair,
Editor-in-Chief, Science; Bing Professor of Environmental Studies, Co-Director,
Center for Environmental Science and Policy, Institute for International Studies, and
Stanford University, Palo Alto, Calif.
RICHARD A. MERRILL, Co-Chair,
Daniel Caplin Professor of Law and Sullivan & Cromwell Research Professor of Law,
University of Virginia Law School, Charlottesville, Va.
FREDERICK R. ANDERSON, Partner,
Cadwalader, Wickersham & Taft, Washington, D.C.
MARGARET A. BERGER, Suzanne J. and Norman Miles Professor of Law,
Brooklyn Law School, Brooklyn, N.Y.
PAUL D. CARRINGTON, Harry R. Chadwick Senior Professor,
Duke University Law School, Durham, N.C.
JOE S. CECIL, Project Director,
Program on Scientific and Technical Evidence, Division of Research, Federal Judicial Center, Washington, D.C.
JOEL E. COHEN,
Abby Rockefeller Mauze Professor and Head,
Laboratory of Populations, The Rockefeller University, and Professor of Populations, Columbia University, New York, N.Y.
REBECCA S. EISENBERG, Professor of Law,
University of Michigan Law School, Ann Arbor, Mich.
DAVID L. GOODSTEIN, Vice Provost and Professor of Physics and Applied Physics,
California Institute of Technology, Pasadena, Calif.
BARBARA S. HULKA,
Kenan Professor, Department of Epidemiology,
School of Public Health, University of North Carolina, Chapel Hill, N.C.
SHEILA JASANOFF, Professor of Science and Public Policy
at Harvard University’s John F. Kennedy School of Government and the School of Public Health, Cambridge, Mass.
ROBERT E. KAHN,
Chairman, CEO and President
of the Corporation for National Research Initiatives, Reston, Va.
DANIEL J. KEVLES, Stanley Woodward Professor of History,
Yale University, New Haven, Conn.
Senior Vice President for Biomedical and Health Sciences Research,
Association of American Medical Colleges, Washington, D.C.
ERIC S. LANDER,
Whitehead Institute for Biomedical Research,
Professor of Biology,
Whitehead Institute/MIT Center for Genome Research, and
Massachusetts General Hospital, Massachusetts Institute of Technology, Cambridge, Mass.
PATRICK A. MALONE, Partner,
Stein, Mitchell & Mezines, Washington, D.C.
RICHARD A. MESERVE, Chairman,
Nuclear Regulatory Commission, Washington, D.C.
ALAN B. MORRISON, Director,
Public Citizen Litigation Group, Washington, D.C.
HARRY J. PEARCE, Chairman,
Hughes Electronics Corporation, El Sagamundo, Calif.
A.S. Vesic Professor of Civil Engineering and Professor of History,
Duke University, Durham, N.C.
CHANNING R. ROBERTSON, Ruth G. and William K. Bowes Professor,
School of Engineering, and
Department of Chemical Engineering, Stanford University, Palo Alto, Calif.
PAMELA ANN RYMER, Circuit Judge,
U.S. Court of Appeals for the Ninth Circuit, Pasadena, Calif.
STAFF OF THE SCIENCE, TECHNOLOGY, AND LAW PROGRAM
ANNE-MARIE MAZZA, Director
SUSIE BACHTEL, Staff Associate
MAARIKA LIIVAK, Christine Mizrayan Intern
KEVIN WHITTAKER, Christine Mizrayan Intern
KIRSTEN MOFFATT, Consultant
ALAN ANDERSON, Consultant Writer
A dozen years ago, the Carnegie Corporation of New York established the Commission on Science, Technology, and Government to explore the increasing importance of scientific understanding to decision making in government. Reports issued under the auspices of that commission called attention to the interdependence of science and all three branches of the federal government, including its legal rules and institutions.
Events over the past decade have confirmed the importance of the Carnegie Commission’s work by dramatizing the connections, and sometimes the tensions, between science and the law. In response to these connections and tensions, the National Academies created the Science, Technology and the Law Program (STL) in 1998 to more fully explore these issues. The STL Program initiated its work with a two-day meeting in March 2000.
A major topic of that meeting, Scientific Evidence, was explored more fully in a workshop on September 7, 2000. This topic has drawn substantial current attention because of three recent Supreme Court cases that address the admissibility of scientific and other technical evidence in civil litigation.
The purpose of the Scientific Evidence Workshop was to air fully all points of view about the controversial issue of admitting scientists and their testimony into the courtroom. The goal of the workshop was not to reach conclusions or recommendations, but to hear and consider all view-points from both legal and scientific leaders with long experience in the field of expert testimony. The current report attempts to be faithful to that
original intention by summarizing the proceedings and organizing them by topic; it does not advocate the kinds of specific recommendations commonly seen in reports of the National Academies. It should be pointed out that, while workshop participants did hold strong opinions about the admissibility of evidence and expert testimony, this summary does not attribute views to specific speakers.
Issues of admissibility often become extremely complex in tort litigation, notably in the “toxic tort” litigation where a plaintiff may claim damage by a chemical or product produced by the defendant. Thus, it is anticipated that defendants will generally seek restrictions on the evidence that is admitted to establish liability, while plaintiffs will prefer more lenient standards for admitting such evidence. These points of view, which are central to issues of admissibility, can be perceived throughout the workshop summary.
In light of the difficulties of deciding how to admit expert testimony in cases that often have great economic and personal consequences, the legal system itself must work as effectively as possible. Thus a primary goal of this workshop was to seek ways to improve communication between scientists, lawyers, judges, and juries. It is important to inform the scientific community about how and why science is presented in a certain manner in court, revealing why some points of view that find their way into the courtroom may seem “extreme” or outside the prevailing scientific community consensus. It is equally important to inform the legal community about the scientific method, the scientific concept of the “truth,” and the reasons why some of the most qualified scientists may be reluctant to testify in a courtroom. To these ends, this report does discuss a series of techniques—such as court-appointed witnesses, technical advi-sors, short courses, and other educational tools—that are being used to improve communication and understanding between the worlds of scientists and lawyers. Improved communication and understanding are fundamental to more effective litigation in an age when science and technology underlie many of the customs, decisions, and assumptions of our culture.
The Science, Technology, and Law Panel wishes to acknowledge the many fine contributions of the speakers attending the workshop. We especially wish to thank
Margaret A. Berger, Suzanne J. and Norman Miles Professor of Law, Brooklyn Law School; Donald N. Bersoff, Professor of Law and Director of Law and Psychology Program, Villanova School of Law; M. Gregg Bloche, Professor of Law, Georgetown University Law School and Adjunct Professor of Public Health, The Johns Hopkins University; Paul D. Carrington, Harry R. Chadwick Senior Professor of Law, Duke University Law School; Joel E. Cohen, Abby Rockefeller Mauze Professor, and Head, Laboratory of Populations, The Rockefeller University and Columbia University; The Honorable Andre M. Davis, Judge, U.S. District Court for the District of Maryland; Shari Diamond, Professor of Law and Psychology, Northwestern University Law School; David A. Freedman, Professor of Statistics, University of California, Berkeley; Bernard D. Goldstein, Director, Environmental and Occupational Health Sciences Institute, UMDNJ–Robert Wood Johnson Medical School; Leon Gordis, Professor of Epidemiology, School of Public Health, Professor of Pediatrics, School of Medicine, The Johns Hopkins University; Michael H. Gottesman, Professor of Law, Georgetown University Law Center; Michael H. Hoeflich, Dean and John H. and John M. Kane Professor of Law, University of Kansas School of Law; Sheila Jasanoff, Professor of Science and Public Policy, John F. Kennedy School of Government, Harvard University; Gina Kolata, Science Desk, The New York Times; Richard A. Levie Principal,
ADR Associates, L.L.C. and Senior Judge, Superior Court of the District of Columbia (ret.); Patrick A. Malone, Stein, Mitchell & Mezines; David Ozonoff, Professor and Chair, Department of Environmental Health, School of Public Health, Boston University; Marsha Rabiteau, Counsel, The Dow Chemical Company; Channing R. Robertson, Ruth G. and William K. Bowes Professor, Department of Chemical Engineering, Stanford University; Jon Samet, Professor and Chair, Department of Epidemiology, School of Public Health, The Johns Hopkins University; and William B. Schultz, Deputy Assistant Attorney General, Civil Division, U.S. Department of Justice.
This report has been reviewed in draft form by individuals chosen for their diverse perspectives and technical expertise in accordance with procedures approved by the NRC’s Report Review Committee. The purpose of this independent review is to provide candid and critical comments that will assist the institution in making its published report as sound as possible and to ensure that the report meets institutional standards for objectivity and evidence. The review comments and draft manuscript remain confidential to protect the integrity of the deliberative process.
We wish to thank the following individuals for their review of this report: Arthur Bryant, Trail Layers for Public Justice, Oakland, California; Gilbert S. Omenn, University of Michigan Health System, Ann Arbor; Ernie Rosenberg, Soap and Detergents Association, Washington, D.C.; and Barbara H. Rothstein, U.S. District Court of the Western District of Washington, Seattle.
Although the reviewers listed above have provided many construc-tive comments and suggestions, they were not asked to endorse the report nor did they see the final draft of the report before its release. The review of this report was overseen by Morris Tanenbaum, who was responsible for making certain that an independent examination of this report was carried out in accordance with institutional procedures and that all review comments were carefully considered. Responsibility for the final content of this report rests entirely with the authoring committee and the institution.
In addition, the Panel also wishes to acknowledge the work of the Science, Technology, and Law Program staff: Anne-Marie Mazza, Susie Bachtel, Maarika Liivack, Kevin Whittaker, Kirsten Moffatt, and consultant, Alan Anderson.
Donald Kennedy and Richard A. Merrill