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The Artification of Science: The Problem of Unscientific "Scientific" Evidence

July 1993

Citation: 23 ELR 10435

Issue: 7

Author: Cynthia H. Cwik, James L. Ferrell, and Ernest J. Getto

Editors' Summary: The absence of a certain threshold for admitting scientific information into evidence permits many courts to admit as scientific evidence the testimony of experts that does not meet scientific standards for reliability. The validity of an expert's opinion admitted as scientific evidence in cases involving issues on the frontiers of science, including toxic-tort and other environmental litigations, often determines the outcome of those cases. Many courts considering the appropriate threshold for admitting scientific information into evidence have reached various conclusions, prompting the U.S. Supreme Court to decide to examine the issue for itself in Daubert v. Merrell Dow Pharmaceuticals.

The authors posit that evidence lacking a firm scientific basis is art disguised as science — or "artified" science — and that because such science lacks explanatory power, the admission of such evidence leads to poor jury verdicts in cases involving scientific questions crucial to their outcome. The authors consider the current standards for admitting scientific evidence and review approaches taken by several different courts. Their exploration reveals that the correctness of legal judgments in cases involving questions of science depends on informed and established expert testimony that meets a uniform standard. They conclude that the accuracy of evidentiary decisions and the subsequent legal judgments is improving as more and more courts abandon "artified" science and honor the line between law and science.

Mr. Getto is a partner and Litigation Department chairman at Latham & Watkins in Washington, D.C. He graduated from Cornell University with a B.A. in 1966 and received his J.D. in 1969 from Vanderbilt Law School. Ms. Cwik is senior associate at the firm and received her B.A. in 1983 from Yale University and her J.D. in 1987 from Yale Law School. Mr. Ferrell is an associate with the firm and received his B.A. in 1989 from Brigham Young University and his J.D. in 1992 from Yale Law School.

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