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

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

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.

[23 ELR 10435]

What scientific evidence is valid enough to be admitted into evidence? The answer to this question can significantly affect many cases that involve issues on the frontiers of science, including toxic-tort and other environmental litigations. The threshold for admitting scientific evidence into evidence has long been debated.¹ Many courts have considered this issue, including the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals.²

In Daubert, the parents of two children with birth defects sued Merrell Dow, the manufacturer of a drug called Bendectin, claiming that the mothers' ingestion of the drug during their pregnancies caused the defects. Defendant's experts reviewed every available epidemiological study of the alleged connection between Bendectin and birth defects. This involved over 30 published studies and data on 130,000 patients. Defendant's experts found no "statistically significant association between Bendectin and birth defects."³ Plaintiffs offered an unpublished reanalysis, prepared for litigation, of a single published study as evidence of a causal connection.

The district court granted summary judgment for the defendant because plaintiffs could not meet their burden of proving that Bendectin caused the defects. As to plaintiffs' expert's reanalysis, the court concluded that it was inadmissible because the technique employed in the reanalysis was not "generally accepted as a reliable technique among the scientific community."⁴

On appeal, the Ninth Circuit upheld the district court's order on the ground that plaintiffs had not proved causation to the extent necessary to allow the case to proceed to trial.⁵ The court ruled that would-be scientific studies that are not "subjected to the normal peer review process" of "verification and scrutiny by others in the field,"⁶ cannot be considered scientific proof. The court noted that this is particularly true of evidence "generated solely for use in litigation," and when all of the studies used by the opposition have "undergone full scrutiny from the scientific community."⁷ Quoting Peter Huber,⁸ the court reasoned, [23 ELR 10436] "[t]he best test of certainty we have is good science — the science of publication, replication, and verification, the science of consensus and peer review."⁹ Because the plaintiffs' expert's reanalysis had not met this test, the Ninth Circuit concluded that the lower court had properly excluded the evidence.

This Article considers the current standards for admitting scientific evidence and reviews approaches taken by several different courts. The Article explains that courts too often admit scientific evidence that does not meet scientific standards for reliability. Such evidence is art masquerading as science, or "artified" science. Artified science lacks the explanatory power it attempts to claim. The Article concludes that to claim scientific authority, evidence should meet the scientific standards.

The Frye Insight

Before the adoption of the Federal Rules of Evidence (Rules) in 1975, most courts applied a test for admitting scientific evidence that was first set forth in Frye v. United States.¹⁰ In Frye, a case of first impression, the court considered whether to admit into evidence polygraph test results. In a remarkably brief opinion, the court held:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while the courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs ….¹¹

The court excluded the evidence because the polygraph had "not yet gained such standing and scientific recognition among physiologists and psychological authorities."¹²

This resolution of the admissibility question was informed by a crucial, valid insight: Nobody is better equipped to evaluate the truth of scientific claims than the scientific community itself. Frye recognizes that modern science is, by definition, a collective enterprise of hypothesizing, testing, rehypothesizing, and retesting. Although hermit scientists may have existed in Galileo's day, the scientific enterprise has changed dramatically in the centuries since that time. The notion of maverick scientists working individually in isolation is now only a myth — although the myth is kept alive in too many courtrooms.

Criticisms of the Frye Test

Frye is frequently criticized, perhaps justifiably. The Frye court presented little analysis beyond its general acceptance phraseology. Commentators and courts have complained that Frye's general acceptance test is vague. For example, although the test says that would-be scientific evidence must have gained "general acceptance in the particular field in which it belongs," the appropriate field is often not obvious. As a result, cases have turned on what field the court finds relevant: for example, the appropriate field might include all scientists, only forensic scientists, or only forensic scientists who administer a particular kind of test. A small group of forensic scientists might readily accept a theory or a technique that a larger group, or even the "whole" scientific community, would reject outright. Frye's silence on this matter has led commentators and courts to complain that the test is too malleable and therefore unhelpful.

A related criticism addresses the question of what constitutes "general acceptance" within whatever field is selected. Obviously, courts will reach different results if they variously consider 10 percent, 30 percent, 50 percent, 60 percent acceptance or some other number to represent the line of "general acceptance." Some commentators have objected that the standard amounts to nothing more than "scientific nose-counting."

Another point of controversy under Frye is the question of what must be accepted. Frye states that "the thing from which the deduction is made must be sufficiently established to have gained general acceptance."¹³ It is unclear whether this means that it is the underlying theory, the underlying data, the technique employed, the conclusions reached, the reasoning by which the expert arrived at his or her conclusion, or some combination of these or other factors that must be generally accepted. Consequently courts have selected various points of emphasis, resulting in contradictory findings and conclusions.¹⁴

These criticisms of the Frye test's mechanics may be justifiable. Their striking similarity, however, is that not one of them undercuts or challenges the Frye insight itself. In fact they underscore the importance of formulating a more specific, scientific methodology for evaluating scientific evidence submitted to the court. Moreover, the solutions proffered by critics of Frye's mechanics are often just as vague, malleable, and unhelpful as Frye's oblique mechanics.¹⁵ If the results of Frye's applications are unsatisfactory, it is the lack of hard mechanics, not the powerful insight behind the test itself, that must be altered.¹⁶

Other criticisms of Frye address Frye's philosophy. The most prevalent and important of these is that Frye is just "too conservative." The commentators and courts that criticize Frye's conservatism express a preference for the approach taken in the Rules. This preference, however, depends on a questionable reading of the relevant Rules. A more accurate reading of the Rules encompasses the Frye insight.¹⁷

A related philosophical attack on Frye is the suggestion [23 ELR 10437] that Frye makes it too difficult for some toxic-tort plaintiffs to prove causation. However, to the extent causationis a scientific question, if it is difficult to prove causation in a given case, it is because the scientific claims are weak — the science finds no causal link.

These philosophical attacks on Frye are informed by a preference for artified science. People who disagree with Frye's insight do not want to shackle scientific evidence with scientific standards. Frye, on the other hand, requires would-be scientific evidence to be scientific.

The Federal Rules and Scientific Evidence

The adoption of the Rules sparked debate over whether the Frye test survived the event. Those arguing that it survived believe that the Federal Rules were not intended as a comprehensive codification of common-law evidence rules.¹⁸ They also point out that a number of common-law evidence rules are not mentioned in the Rules, and many that are, are mentioned only briefly.¹⁹

Those who oppose the Frye test regard the Rules' silence about the Frye test to be an implicit repudiation of Frye. Because silence is too easily read in one's own favor, however, the Rules themselves deserve closer examination.

The most popular interpretation of the Rules is that they opened the courts to nearly all relevant evidence, the notion being that more evidence is preferable to less evidence. This is contrary to the Frye insight, which would say that unscientific science is "preferable" only if one is uninterested in truth. The Rules do not demand such an open reading.

A better reading of the Rules recognizes that they are informed by the Frye insight at every turn, and courts have been reading the Rules in just this fashion with greater frequency.²⁰ For example, consider Rule 702, which states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to 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.²¹

Rule 702 speaks to the admissibility of "scientific, technical, or other specialized knowledge."²² Specifically, scientific knowledge is one kind of "specialized knowledge" that is admissible as evidence because it satisfies Rule 702. Many courts skip directly to whether the so-called scientific evidence will "assist the trier of fact." Apparently, they miss an important implied precondition to that question — whether, in the case of scientific evidence, the evidence qualifies as "scientific knowledge."

Courts that use liberal admissibility standards ignore this question altogether, revealing that they regard any testimony given by a person claiming to be a scientist or any testimony in a scientific area to be "scientific." Ruling that evidence is "scientific enough for the law" when it is not scientific at all defies logic.

A more substantive reading of the word "scientific" in Rule 702 is preferable because it is more demanding. It is more demandingfor two reasons. First, the rationale for allowing expert testimony and disallowing nonexpert testimony supports such a reading. Experts are allowed to testify because they have relevant knowledge about an element that is beyond the knowledge of the court. To decide a scientific question, the trier of fact needs scientific knowledge. Scientific experts can provide this scientific knowledge and, thus, are allowed under Rule 702. A would-be witness who admits to having no such expert knowledge would not be allowed to testify, because he or she could not offer helpful expert knowledge.

For the same reason that a nonexpert witness is not allowed to testify, a would-be expert witness who believes he or she is an expert but does not have such expert knowledge should not be permitted to testify. In fact it is more important to not permit this person's testimony, because his or her conviction may mask his or her ignorance. If "scientific" in Rule 702 is merely a code for anything having to do with a traditional area of science, then courts expose themselves to such ignorance, which offends the rationale distinguishing expert opinion from nonexpert opinion.

Second, the language of Rule 702 supports a more substantive reading of the word "scientific." Rule 702 does not refer to scientific "testimony," but to scientific "knowledge," and allows a qualified witness to testify about her scientific knowledge if it will assist the trier of fact. The word "knowledge," as opposed to "testimony," recognizes the authority and utility of truly scientific evidence, and reinforces a substantive reading of "scientific." The rule does not envision the admission of any testimony about a particular area of science if it is somehow "helpful," but rather testimony of "scientific knowledge."

The "assistance" requirement in Rule 702 also supports reading "scientific" as a requirement that proposed scientific evidence be scientific. Because a scientific question needs a scientific answer, it is unclear how would-be scientific evidence could ever assist the trier of fact if it is unscientific. Thus, Rule 702's assistance requirement should screen out unscientific science even if a court relies on a less substantive reading of "scientific."

At least one jurist supports an alternate reading of Rule 702's assistance requirement. He believes it is an error to interpret Rule 702 "to require the expert's opinion to assist the trier of fact."²³ Rather, "[e]xpert opinion testimony is admissible when 'scientific, technical, or other specialized knowledge [in general] will assist the trier of fact to understand the evidence or to determine a fact in issue.'"²⁴ This reading of Rule 702 would invite unscientific science into court, which is counter to the reason for allowing expert testimony at all.

Rule 702 states that the expert witness "may testify thereto." The "thereto" is best understood to refer back to "scientific, technical, or other specialized knowledge." Even if the assistance requirement were to attach to scientific knowledge in general, as opposed to a witness' specific scientific knowledge, the helpfulness requirement is incorporated [23 ELR 10438] by reference to apply to the witness' testimony as well, because the "thereto" allows the witness to testify about scientific knowledge, and the assistance requirement refers to the scientific knowledge.

Finally, even if unscientific science were to make it past Rule 702, it should be excluded under Rules 401, 402, and 403. Rule 401 reads:

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.²⁵

Rule 402 reads, in relevant part: "Evidence which is not relevant is not admissible."²⁶

Rule 403 reads:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.²⁷

Unscientific scientific evidence is not "relevant," and should be barred by Rule 402. Scientific questions call for scientific answers. Unscientific scientific testimony does not "make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."²⁸ Falsity only makes confusion and mistake more probable.

In addition, unscientific scientific evidence is unfairly prejudicial and misleading and should therefore be barred by Rule 403. When unscientific science is admitted as scientific expert testimony, nonscience assumes a "false aura of scientific infallibility."²⁹ Rule 403 requires that a balance be struck between the prejudicial and misleading nature of the evidence and its probative value. The prejudicial and misleading nature of such evidence is inversely related to the scientific accuracy of the would-be evidence:

Rule 403 allows a court to exclude relevant evidence when its probative value is substantially outweighed by the danger of unfair prejudice. An expert's opinion may be based on such erroneous facts or data, such proven unsound methodology, or such internally inconsistent reasoning that its probative value is minimal…. When an opinion, especially one a lay person finds as arcane and speculative as cancer causation, is based on erroneous data, reasoning, or methodology, qualifying the opining witness as a medical expert carries a likely danger than [sic] the opinion will be substantially more prejudicial than probative. The fact that a witness is labelled an "expert" under Rule 702 would certainly be an improper basis for a jury's decision to believe the witness' opinion.³⁰

Courts that admit artified, legal "science" enshroud nonscience with the aura of scientific authority, then lob it to the jury. One authority remarked sadly that "[t]he law extends equal dignity to the opinions of charlatans and Nobel Prize winners, with only a lay jury to distinguish between the two."³¹ If law really is concerned with resolving disputes based on the most reliable and trustworthy evidence, there is no reason to disregard standards of science when evaluating the admissibility of scientific evidence. Truly scientific evidence presumes scientific standards.

Artified Science in Practice

When courts refuse to measure scientific evidence by scientific standards, the legal result is a misinformed guess. Consider the following cases.

Ferebee v. Chevron Chemical Co.³²

In Ferebee the court considered defendant's appeal for a judgment notwithstanding the verdict ("judgment n.o.v."). Plaintiff worked as an agricultural worker, spraying various chemicals on plants. One of these chemicals was an herbicide called "paraquat," which was distributed by defendant. Plaintiff claimed that his exposure to paraquat caused him to contract pulmonary fibrosis, a serious lung disease from which plaintiff eventually died.

Defendant's experts argued that plaintiff's claims were unsupported by scientific evidence. Paraquat's known ill-effects occur very shortly after exposure, and this known pattern contradicted plaintiff's claim of injury from paraquat because plaintiff reported no ill-effects until more than 10 months after his last exposure to paraquat.³³ Plaintiff produced two experts, however, who testified that in their opinion plaintiff's disease was caused by his exposure to paraquat. Both experts acknowledged that a case like plaintiff's was rare. Plaintiff's experts could think of only three cases that could have been similar — a point that defendant's experts disputed.³⁴

Unfortunately the court refused to evaluate the expert testimony. The court wrote:

Judges, both trial and appellate, have no special competence to resolve the complex and refractory causal issues raised by the attempt to link low-level exposure to toxic chemicals with human disease. On questions such as these, which stand at the frontier of current medical and epidemiological inquiry, if experts are willing to testify that such a link exists, it is for the jury to decide whether to credit such testimony.³⁵

The court's analysis is troubling. "[J]udges … [may] have no special competence," but neither do juries. And although juries can gain from qualified experts the necessary knowledge to resolve causal issues, Ferebee introduced the lowest level of expert qualification imaginable — the "willingness" standard. Allowing evidence simply because someone is willing to provide it, without qualifying its accuracy, is to invite ignorance into evidence.

The court's "short answer" to defendant's appeal was [23 ELR 10439] that plaintiff's two witnesses refuted the expert testimony of defendant's witnesses, and "that the jury was entitled to believe [plaintiff's] experts."³⁶ The longer answer to defendant's objections was that because plaintiff's experts had based their opinions on well-accepted tissue samples, standard tests, and patient examinations, whatever conclusion they may have reached from those tests wereproperly admitted, and reasonable jurors could properly believe them.

This type of analysis ignores the crucial aspect of an expert's testimony: the scientific validity of the reasoning connecting the underlying data to the scientific conclusion. The court assumes that courts are incompetent to evaluate scientific validity and throws the case to the jury. As Judge Learned Hand observed, however:

The trouble with all this is that it is setting the jury to decide, where doctors disagree. The whole object of the expert is to tell the jury, not facts, as we have seen, but general truths derived from his specialized experience. But how can the jury judge between two statements each founded upon an experience confessedly foreign in kind to their own? It is just because they are incompetent for such a task that the expert is necessary at all.³⁷

Thus, if no standards existed to evaluate the validity of scientific testimony, nothing better could be expected. Where such standards exist, however, deferring to the jury is inappropriate. Two commentators have appropriately assessed Ferebee in the following way:

Ferebee reveals not only the usual deference accorded medical doctors by courts, but also an open retreat from scientific standards. Because it labored under the misperception that science relates only to certain and conclusive knowledge, the court justified its holding by noting that the law does not require such certainty, implying that what science would accept as valid is not important. In effect, the court relied on the certainty expressed by the plaintiff's experts and ignored the question of whether this certainty had any valid basis. This mode of analysis can produce legal verdicts wholly out of keeping with scientifically established facts as well as scientific reasoning.³⁸

Wells v. Ortho Pharmaceutical Corp.³⁹

In Wells, plaintiffs, an infant and her parents, claimed that the infant's birth defects had been caused by a spermicide manufactured by defendant that the mother had used during the first four weeks of pregnancy. The infant's birth defects consisted of a deformed right hand, no left arm, a partially developed left clavicle and shoulder, a cleft lip, nostril deformity, and an optic-nerve defect in her right eye. The case was tried without a jury and the district court found sufficient evidence of a causal connection between the birth defects and the spermicide to award plaintiffs $5.1 million.

The Eleventh Circuit ruled that it could only overturn the district court's opinion if the district court's findings were "clearly erroneous."⁴⁰ The district court had admitted that the testimony was "inconclusive on the ultimate issue of whether the product caused [the infant's] birth defects,"⁴¹ and admitted that it "was forced to make credibility determinations to decide the victor."⁴²

In refusing to evaluate the validity of the scientific evidence relied on by the district court, the appellate court reasoned:

If the fact finder here is convinced that plaintiffs have proven to a reasonable degree of medical certainty … that Ortho-Gynol caused [the infant's] … defects, it does not matter in terms of deciding the case that the medical community might require more research and evidence before conclusively resolving the question. What matters is that this particular fact finder found sufficient evidence of causation in a legal sense in this particular case, and that that finding is not clearly erroneous.⁴³

The district court's standard for "a reasonable degree of medical certainty" appears dangerously devoid of medical/scientific rigor. If a court really is to apply the "reasonable degree of medical certainty standard," it should be — as advertised — a medical/scientific standard rather than a legal one, because legal evaluations of scientific questions are "clearly erroneous" by definition.

The scientific community's outrage at the Wells decision demonstrates the failure of the court's legal, rather than medical/scientific, standard. An article in The New England Journal of Medicine stated that the Wells "decision took the medical community by surprise, because the overwhelming body of evidence indicates that spermicides are not teratogenic."⁴⁴ It went on to state that plaintiffs had won "despite testimony citing considerable medical evidence that spermicides do not cause birth defects."⁴⁵

Oxendine v. Merrell Dow Pharmaceutical⁴⁶

Oxendine involved a claim that Bendectin, produced by defendant and ingested by an infant's mother during pregnancy, caused congenital limb defects in the infant, including a shortened right forearm and three fused fingers on her right hand. Plaintiffs claimed that the infant's birth defects were caused by Bendectin, and the jury agreed, awarding them $750,000. Defendant filed a motion for judgment n.o.v., and the trial court granted the motion.

The appellate court emphasized that "judgment notwithstanding the verdict is proper only in extreme cases, in which no reasonable person, viewing the evidence in the light most favorable to the prevailing party, could reach a verdict in favor of that party."⁴⁷ The court stressed that a judgment n.o.v. is even more difficult to obtain in cases such as Oxendine, "which present difficult medical issues [23 ELR 10440] of causation, with expert testimony going both ways."⁴⁸ The court stated further that "on questions such as these, which stand at the frontier of current medical and epidemiological inquiry, if experts are willing to testify that such a link exists, it is for the jury to decide whether to credit such testimony."⁴⁹

In the face of dozens of published epidemiological studies, none of which have found a statistically significant correlation between Bendectin and birth defects, the appellate court found that jurors could have reasonably relied on plaintiff's expert's testimony of a causal link between Bendectin and plaintiff's birth defects. Plaintiff's expert testified of "suspicions" and "clues" of Bendectin's teratogenocity provided by four kinds of evidence: chemical structure analysis, in vitro studies, in vivo studies, and epidemiological studies. The expert conceded the weakness of each individual piece of evidence and admitted that each kind of evidence, taken alone, could not support a finding of cause and effect. He testified that taken together, however, the clues and suspicions raised by each of these four kinds of evidence could support a finding of a causal link.

The expert's evidence amounted to the following: First, studies demonstrating that the antihistamine in Bendectin is teratogenic at high doses in animals, providing a "clue" that Bendectin may have similar effects in humans; second, a study showing the effect of high doses of Bendectin on rabbit fetuses raising a "suspicion" of Bendectin's teratogenocity (although he admitted that the results were inconclusive); third, an in vitro experiment indicating that Bendectin may have the "potential" to cause limb deformities; and fourth, reexamination of data from a published epidemiological study finding no correlation between Bendectin and birth defects, but which, after reexamination and massaging of the data resulted in the conclusion that "taken together with the rest of the available data, supported [the] conclusion that Bendectin caused [plaintiff's] birth defects."⁵⁰ This reanalysis has not been published nor subjected to peer review.

Defendant's experts contradicted plaintiff's evidence at every turn. The appellate court agreed with plaintiff's experts that each of the elements, taken alone, could not show that Bendectin caused plaintiff's birth defects. However, because the expert testified that taken together these studies support such a finding, the appellate court held that the lower court was in error to grant the motion for judgment n.o.v.⁵¹

The problem in Ferebee, Wells, and Oxendine, was that scientific experts were allowed to testify before the trier of fact about unscientific theories. The appellate courts apparently believed it would be inappropriate to interfere with the fact finder's decision, and applied weak tests such as the willingness-to-testify standard. As a result, rather than analyzing the scientific sufficiency of each of the expert's claims, the appellate courts generally held that reasonable persons could have relied on the expert testimony to reach the conclusions they did, and thus they affirmed the judgments.

Judge Patrick E. Higginbotham recognized the problem with this approach in his dissenting opinion in Brock v. Merrell Dow Pharmaceutical, Inc.⁵² Judge Higginbotham quoted the Attorney General's tort-policy working group's comments about the "increasingly serious problem of reliance by judges and juries on non-credible scientific or medical testimony, studies or opinions,"⁵³ and added:

It has become all too 'common' for 'experts' or 'studies' on the fringes of or even well beyond the outer perimeters of mainstream scientific or medical views to be presented to juries as valid evidence from which conclusions can be drawn. The use of such invalid scientific evidence (commonly referred to as "junk science") has resulted in findings of causation which simply cannot be justified or understood from the standpoint of the current state of credible scientific and medical knowledge. Most importantly, this development has led to a deep and growing cynicism about the ability of tort law to deal with difficult scientific and medical concepts in a principled and rational way.⁵⁴

Case Law Application of the Frye Insight

Several recent cases demonstrate that some courts are increasingly recognizing the Frye insight in the Rules. Recognizing the peculiar nature of scientific evidence, and applying the Rules in ways that allow the law to benefit most from scientific knowledge, these courts understand that the Rules are designed to help facilitate correct decisions, not misinformed guesses.

In cases involving review of jury-verdict reversals, the same insight recognizes that if artified science is admitted and a jury is hoodwinked by it, Ferebee's willingness-to-testify approach should not require a court to ignore a clear record of scientific evidence. The initial mistake of admissibility should not forever preclude a judgment based on the most reliable and trustworthy evidence.

Richardson v. Richardson-Merrell, Inc.⁵⁵

Richardson involved another claim that Bendectin caused an infant's congenital limb defects. The jury awarded $1.16 million to plaintiffs. The district court granted defendant's motion for judgment n.o.v., however, holding that "on the basis of the evidence presented no reasonable jury could find that [plaintiffs'] birth defects were more likely than not caused by Bendectin."⁵⁶

The same expert that testified for plaintiffs in Oxendine testified in Richardson, and his testimony was substantively unchanged.⁵⁷ Again he admitted that the evidence from the first three kinds of studies was speculative to the point that each of them alone could provide no basis for a scientific opinion that Bendectin caused birth defects in plaintiffs.

The appellate court held that chemical, in vitro, and in vivo studies "cannot furnish a sufficient foundation for a conclusion that Bendectin caused the birth defects at issue [23 ELR 10441] in this case. Studies of this kind, singly or in combination, are not capable of proving causation in human beings in the face of the overwhelming body of contradictory epidemiological evidence."⁵⁸

Epidemiological studies of Bendectin's effect on fetuses are ample. And even the expert admitted that "no one who has published work on Bendectin has concluded that there is a statistically significant association between Bendectin and limb reduction defects of the type at issue in this case."⁵⁹ "Only by recalculating the data was [he] able to obtain what he deems a statistically significant result."⁶⁰ However, the studies that he rejected "had been published in peer-reviewed scientific journals, while [he] has neither published his recalculations nor offered them for peer review."⁶¹

The D.C. Circuit approvingly quoted the following district court language:

Though [the expert] might disagree, there is now nearly universal scientific consensus that Bendectin has not been shown to be a teratogen, and, the issue being a scientific one, reasonable jurors could not reject that consensus without indulging in precisely the same speculation and conjecture which the multiple investigations undertook, but failed, to confirm. That [the expert] remains an unbeliever and was willing to testify to his disbelief "with reasonable medical certainty" does not mandate that this case be left as the jury decided it. Without a genuine basis "in or out of the record" even his expert "theoretical speculations" are insufficient to sustain the plaintiff's burden of proving, by a preponderance of the evidence, that Bendectin not only causes congenital defects generally, but that, in particular, it caused those limb reduction defects with which [the plaintiff infant] Richardson was most unfortunately born.⁶²

Hence, the court rejected the Ferebee "willingness" standard used by the Oxendine court.

On the basis of this overwhelming evidence in defendant's favor, and in light of the lack of any statistically significant supporting evidence for plaintiff's position, the appellate court upheld the district court's granting of the judgment n.o.v. The initial jury verdict demonstrates how prejudicial and misleading unscientific science can be.

Lynch v. Merrell-National Laboratories ("Lynch II")⁶³

In Lynch II, the First Circuit upheld the district court's grant of defendant's summary judgment motion in another Bendectin case. Again, the plaintiff's expert witness was the Oxendine expert. He presented the same four categories of evidence. The district court found that:

The in vitro studies suffer from the same deficiencies as the in vivo animal studies — they are performed in other biological species and at doses far in excess of the human therapeutic dose. This court also cannot find, pursuant to Rule 703, that such studies are "of a type reasonably relied upon by experts in the particular field."⁶⁴

The district court also found:

[T]he studies of analogous chemical structures relied upon by plaintiffs' experts to be of lesser probative value than the in vivo and in vitro animal studies …. [S]uch evidence does not comport with the requirements of Rule 703 that an expert's opinion be grounded on facts or data of a type reasonably relied upon by experts in the particular field.⁶⁵

The evidence in the fourth category of evidence, epidemiological studies, was strongly in defendant's favor. In fact, no pregnancy-associated drug has been tested more than Bendectin, and no study has found any statistically significant association between Bendectin and congenital birth defects like the defects suffered by plaintiff. The district court ruled:

Thus, a careful review of the material before this court indicates that the only relevant, probative, and nonmisleading evidence on the issue of Bendectin's role in the causation of birth defects are the controlled observations of human beings, documented in more than 25 published epidemiological studies. The data from these studies does not indicate any statistically significant association between Bendectin and the type of birth defects suffered by [the infant]. This court finds that the evidence submitted by the plaintiffs in support of their expert testimony does not comport with the requirements of the Federal Rules of Evidence. Absent admissible and competent expert testimony grounded on evidence comporting with the requirements of the Federal Rules of Evidence, the plaintiffs cannot raise a genuine issue of material fact concerning Bendectin's role in the causation of [the infant's] birth defect.⁶⁶

On that basis, the district court granted defendant's motion for summary judgment.

The D.C. Circuit agreed with the district court's assessment of the evidence, stating that the scientific evidence shows that:

Bendectin is as likely as aspirin to cause limb reduction. Because many mothers take aspirin during pregnancy, as they once took Bendectin, there will always be some children whose mothers took aspirin who were then born with defects including limb reduction. The coexistence of the defect and the taking of aspirin does not prove that one caused the other. Rather, the connection is one of "happenstance." To blame aspirin or to blame Bendectin would be an "aberration of reason." The association of Bendectin with limb reduction is in the view of the health-care community an instance of popular delusion and error…. A new study coming to a different conclusion and challenging the consensus would be admissible evidence. Without such a study there is nothing on which expert opinion on Bendectin as a cause may be based. The plaintiffs offered no new study.⁶⁷

Reasoning that "[t]he sight of a helpless mutilated youngster may evoke emotion along with the corresponding wish [23 ELR 10442] to make somebody pay for his or her plight,"⁶⁸ the appellate court held:

With this very real possibility of runaway emotion overcoming judgment, the district court's firm rejection here of foundationless expert testimony was necessary, admirable, and entirely within the discretion of the court under Federal Rules of Evidence 403 and 703.⁶⁹

This court's approach was appropriate, although it is important to note that the analysis also fits under Rules 403 and 703.⁷⁰

Perry v. United States⁷¹

In Perry the Eleventh Circuit affirmed the district court's determination that plaintiff did not prove a causal connection between administration of a swine-flu shot to plaintiff and plaintiff's subsequent dizziness and coordination problems. In addition, the district court had properly rejected plaintiff's experts' testimony of such causal connection in light of the experts' analysis of such connection solely for use in litigation and without subjecting the study to peer review.⁷²

Christophersen v. Allied-Signal Corp.⁷³

Christophersen addressed the question of whether plaintiff had contracted a "rare, small-cell form of cancer that originated in his colon and metastasized to his liver"⁷⁴ from exposure to fumes emitted from the manufacturing of nickel/cadmium batteries at the plant where plaintiff worked. The district court granted defendant's motion for summary judgment, holding "that the basis of the expert's opinion was insufficiently reliable and, in the alternative, that the expert's testimony would have been more prejudicial than probative."⁷⁵

The Fifth Circuit took the case en banc in order to "light the path district courts should follow in ruling on expert opinion evidence."⁷⁶ The fractured opinions illustrate the level of judicial disagreement and confusion over the admissibility of scientific evidence.

The majority stated that "the Federal Rules of Evidence, combined with Frye, provide a framework for trial judges struggling with proffered expert testimony."⁷⁷ Its analytical approach to assess the admissibility of expert scientific testimony followed four steps:

(1) whether the witnesses qualify to express an expert opinion, Fed. R. Evid. 702;

(2) whether the facts upon which the expert relies are the same type as are relied upon by other experts in the field, Fed. R. Evid. 703;

(3) whether in reaching his conclusion the expert used a well-founded methodology, Frye; and

(4) assuming the expert's testimony has passed Rules 702 and 703, and the Frye test, whether under Federal Rule of Evidence 403 the testimony's potential for unfair prejudice substantially outweighs its probative value.⁷⁸

The appellate court questioned plaintiff's expert's qualifications as an expert witness under its Rule 702 analysis. Because the district court did not rely on this basis for not allowing the expert's testimony, however, the appellate court quickly moved to its Rule 703 analysis and later to the Frye analysis. The majority held, under Rule 703, that "district judges may reject opinions founded on critical facts that are plainly untrustworthy, principally because such an opinion cannot be helpful to the jury."⁷⁹ The court continued:

Certainly nothing in Rule 703 requires a court to admit an opinion based on facts that are indisputably wrong. Even if Rule 703 will not require the exclusion of such an unfounded opinion, general principles of relevance will. In other words, an opinion based totally on incorrect facts will not speak to the case at hand and hence will be irrelevant. In any event, such an opinion will not advance the express goal of "assisting the trier of fact" under Rule 702.⁸⁰

The court found that the data on which the plaintiff's expert's opinion was based was fatally deficient and not "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject."⁸¹ Therefore, the majority held that the testimony was properly excluded under Rule 703.

The majority's Rule 703 analysis really is a Rule 702 analysis mixed with support from Rule 403. The majority quotes Viterbo v. Dow Chemical,⁸² for the idea that the general rule that

[T]he scientific bases of an expert's opinion 'affect the weight to be assigned that opinion rather than its admissibility' … yields when 'the source upon which an expert's opinion relies is of such little weight … that [the] testimony would not actually assist the jury in arriving at an intelligent and sound verdict.'⁸³

The majority states further:

Although [Rule 703] is primarily directed toward permitting an expert to base his opinion on hearsay or otherwise inadmissible sources, … the inquiry into the "types" of "facts and data" underlying an expert's testimony is not limited to the admissibility of that data. District judges may reject opinions founded on critical facts that are plainly untrustworthy, principally because such an opinion cannot be helpful to the jury."⁸⁴

[23 ELR 10443]

After justifying their Rule 703 conclusion with Rule 702 reasoning, the majority concluded its Rule 703 analysis with an explicit reference to Rule 403 and 702 considerations:

Even if Rule 703 will not require the exclusion of such an unfounded opinion, general principles of relevance will. In other words, an opinion based totally on incorrect facts will not speak to the case at hand and hence will be irrelevant. In any event suchan opinion will not advance the express goal of "assisting the trier of fact" under Rule 702.⁸⁵

The majority adopted an approach to the Frye test that Bert Black argued for in his article "A Unified Theory of Scientific Evidence."⁸⁶ According to this approach not only must data be well-founded and derived from a technique that is generally accepted by the relevant scientific community, the process by which the expert witness moves from those sources to his opinion must represent a methodology that is generally accepted by scientific authorities in the relevant field or be a scientifically valid methodology. Accordingly, the court started analyzing the Frye question with the following quote:

When analyzing the validity of an expert's methodology, we seek to determine whether it connects the facts to the conclusion in a scientifically valid way. We answer this question by applying the Frye test: Whether the methodology or reasoning that the expert uses to connect the facts to his conclusion is generally accepted within the relevant scientific community.⁸⁷

The court agreed with the district court's analysis of the plaintiff's methodology, commenting that "all [the plaintiff's expert] had was a scientific hunch, which as far as the record shows, no one else shares."⁸⁸ Moreover, even though the plaintiff's expert agreed that human epidemiological studies, live animal testing, and in vitro testing are the main methodologies used to establish a causal link between exposure to certain chemical fumes and the development of a small cell carcinoma, he failed to employ any of these methodologies. Instead, he based his opinion entirely on plaintiff's exposure to fumes during his employment over an estimated duration of 14 years,⁸⁹ the possibility that the fumes might have contained nickel and cadmium, and the assertion that these substances have been linked to a certain kind of cell in lung cancer that resembles the small cell carcinoma that appeared in plaintiff's colon. Plaintiff offered no scientific support for his expert's testimony.

An opposing party's expert witness concluded that plaintiff's expert's "presumption that nickel and cadmium have been associated with a certain type of cell in lung cancer and therefore should be associated with a similar type of cell in the colon has no support in medical science and is without foundation."⁹⁰ Thus, for these reasons, the court found that the expert's methodology was not generally accepted within the relevant scientific community, had therefore failed the Frye test, and consequently, that the testimony was inadmissible.

Because the testimony failed under Rule 703 and under the Frye test, the court did not consider excluding the testimony under Rule 403. This is because "unlike Rule 702 and 703, which define admissibility thresholds for expert-opinion evidence, Rule 403 'createsa power to exclude otherwise admissible evidence; it gives no discretion to admit evidence that is subject to exclusion under some other rule.'"⁹¹

In a concurring opinion, Chief Judge Clark blasted the majority for misconstruing Rules 702 and 703. Nonetheless, he believed that plaintiff's expert's testimony would have been properly excluded under Rule 403, and thus he concurred in the result.

The four dissenting justices favor admitting most any expert scientific testimony if it has the potential to aid the trier of fact. They argue that all of the court's objections to the expert testimony under Rules 702, 703, and 403 and the Frye test are questions that properly should be considered by the trier of fact and go to the weight of the evidence rather than its admissibility.

DeLuca v. Merrell Dow Pharmaceuticals, Inc.⁹²

DeLuca is another Bendectin case. The district court granted defendant's motion for summary judgment because plaintiff proffered no relevant testimony as to the causal link between Bendectin and her birth defects.⁹³ The district court had excluded plaintiff's expert's testimony of such a causal link under Rule 703, because the expert's testimony was not based on facts or data "of a type reasonably relied upon by experts in the particular field informing opinions or inferences upon the subject."⁹⁴ The district court relied on evidence establishing that all relevant published epidemiological studies show no statistically significant link between Bendectin used during pregnancy and congenital birth defects.

On appeal, the Third Circuit held that the district court had misapplied Rule 703, and overturned the grant of summary judgment.⁹⁵ The court acknowledged that "the great weight of scientific opinion, as is evidenced by the FDA committee results, sides with the view that Bendectin use does not increase the risk of having a child with birth defects."⁹⁶ Nonetheless, the court found this fact not dispositive for Rule 703 admissibility:

[W]e do not view the absence of statistically significant findings or the great weight of contrary opinion as being relevant to the Rule 703 question posed here. Rule 703 is satisfied once there is a showing that an expert's testimony is based on the type of data a reasonable expert in the field would use in rendering an opinion on the subject at issue; it does not address the reliability or general acceptance of an expert's methodology. When a statistician refers to a study as "not statistically significant," he is not making a statement about [23 ELR 10444] the reliability of the data used, rather he is making a statement about the propriety of drawing a particular inference from that data.⁹⁷

Therefore, the court concluded "that the present record provides no basis for excluding [plaintiff's expert's] testimony under Rule 703."⁹⁸

Although holding that Rule 703's unreliability renders it inappropriate as a device to exclude evidence, the court remanded for consideration of this question under Rule 702. The court said:

While no Federal Rule of Evidence specifically addresses the methodological fundamentals for expert testimony, Rule 702's helpfulness requirement implicitly contains the proposition that expert testimony that is based on unreliable methodology is unhelpful and therefore excludable.⁹⁹

The court instructed the district court that a motion for summary judgment might still succeed even if plaintiff's expert's testimony passes Rule 702 scrutiny as well as Rule 403 scrutiny. The court reasoned that where the substantive legal rule requires a jury to find that Bendectin more likely than not caused the birth defects in plaintiff, expert testimony that is helpful to the trier of fact under Rule 702 and that does not raise problems of prejudice and confusion under Rule 403, still may not prevent defendant from prevailing on summary judgment. The court stated:

[Plaintiff's expert] may be able to testify, on the basis of adequate data and the application of reasonably reliable methodology, for example, that of women who took Bendectin and had children with birth defects, 25 percent of the cases of birth defects can be attributed to Bendectin exposure. This testimony would be admissible as it would be a basis from which a jury could rationally find that Bendectin could have caused [plaintiff's] birth defects; however, it would not without more suffice to satisfy that [plaintiff's] burden on causation under a more likely than not standard since a fact finder could not say on the basis of this evidence alone that plaintiff's birth defects were more likely, than not caused by Bendectin.¹⁰⁰

Toward More Specific Applications of the Frye Insight

Each of the cases reviewed in the preceding section at least implicitly recognizes the Frye insight that scientific evidence must be scientifically valid to qualify as science. These cases also begin to articulate mechanics that make practical application of the Frye insight possible.

The most profound corollary of the Frye insight is that other scientists are in a better position to evaluate the truth of would-be scientific evidence than are judges and jurors. Any practical legal approach that facilitates the judgment of the scientific community on matters of scientific evidence is a move in the right direction.

One approach, used by the Ninth Circuit in Daubert, requires peer-reviewed publication. If published peer-reviewed studies unanimously contradict the unpublished claims, courts should rely on the published results. The scientific community has spoken in such a case. The published review will be far more accurate than the politically charged deliberations of a thousand juries. Similarly, if published peer-reviewed studies unanimously support an expert's claims, courts can safely admit the evidence as expert scientific evidence.

That leaves the more difficult situation of what courts should do to ascertain the scientific accuracy of a claim when published peer-reviewed studies are presented on both sides of an issue. First, courts should recognize that all scientific publications are not equal, giving more reputable journals relatively more weightin their deliberations. Second, more recent studies should be favored if an earlier study may have made mistakes for which later more careful, studies accounted. Third, courts should discount studies made solely for use in litigation because of litigation's result-oriented pressures. In addition, courts should recognize that scientific studies are studies of probabilities, and that their results and subsequent conclusions will vary either because their parameters differ or because scientists would draw different inferences from similar probabilities. One of the inferences may be more appropriate for the litigation than another.

The degree of certainty with which an expert expresses his opinion is another consideration. If a scientific expert is unwilling to testify with "reasonable probability," which means that the proposition is "more probable than not," then his testimony should not be permitted. Possibility is the realm of the philosopher and the theologian, not the scientist. In the strictest sense, anything is "possible." For that reason, expressions of possibility should not be mistaken for science.

Although such a level of expressed scientific certainty is necessary, it is insufficient. Reasonable probability should not, by itself, be enough to validate a witness' testimony, especially when the testimony is inconsistent with scientific consensus. There must be some level of general acceptance in the field, because any one qualified person may believe something strongly enough to recite the magic words. Modern science is a collective enterprise.

Court should consider appointing scientific masters when the scientific evidence is complicated and apparently contradictory. These neutral experts could be used effectively by courts at the preliminary, evidentiary stages of lawsuits to evaluate the scientific validity of would-be scientific evidence. They would be better equipped than judges are to analyze the probabilistic subtleties of difficult and seemingly contradictory scientific studies. Another similar option is the creation of an independent panel of scientists to aid courts in adjudicating scientific issues. Respected scientists would willingly fill such roles to bring the law's treatment of science into the twentieth, if not the twenty-first, century.

Scientific Evidence: From Art to Science

Poor jury verdicts in cases involving crucial scientific questions are often the result of poor evidentiary decisions. Once artified science is admitted, the sympathetic synergies created by mixing a suffering plaintiff with a deeppocketed defendant often produce some level of judgment in favor of the suffering plaintiff, no matter what the state of the "scientific" evidence. This is why the evidentiary question is crucial to courts that are interested in facilitating truthful decisions.

[23 ELR 10445]

In the last few years, courts have increasingly required scientific claims to measure up to science. One commentator observed:

Although courts have traditionally avoided evaluation of the theory or reasoning underlying scientific evidence, a more active approach has begun to evolve. Especially in toxic tort cases, a growing number of courts now delve into the reasoning behind an expert's conclusions and require that this reasoning reflect accepted scientific practice. As society grows more tied to science and technology, and more enamored of litigation, this development becomes increasingly necessary. The law should seek verdicts consistent with scientific reality, and with each other, and it can achieve this goal only by requiring scientific evidence to conform to the standards and criteria to which scientists themselves adhere.¹⁰¹

The genius of the law has been to incorporate the expertise of other areas into the law's pursuit of correct judgments. Expert witnesses are allowed to testify for precisely this reason. A legal system's efficacy as a justice-dispensing enterprise is jeopardized when those controlling the system permit the substitution of their own judgments about other areas for the informed judgments of those disciplines themselves. In difficult cases like mass toxic-tort litigations, it can be difficult to see where the law ends and the science begins. Nevertheless, the accuracy of the legal judgment in such cases depends on that line being seen and honored.

More and more courts are seeing and honoring that line. When science is at issue in the courtroom, courts increasingly are applying scientific standards and getting the science right. As a result, legal decisions in such cases are becoming more uniform and accurate. They are based on science rather than art — as they should be when the legal questions are questions of science rather than art.

1. Perhaps the most notable recent addition to the debate is Peter Huber's book, GALILEO'S REVENGE: JUNK SCIENCE IN THE COURTROOM 1991. See also Bert Black, A Unified Theory of Scientific Evidence, 56 FORDHAM L. REV. 595 (1988); E. Donald Elliott, Toward Incentive-Based Procedure: Three Approaches for Regulating Scientific Evidence, 69 B.U. L. REV. 487 (1989); Paul Gianelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later, 80 COLUM. L. REV. 1197 (1980); Michael Graham, Expert Witness Testimony and the Federal Rules of Evidence: Insuring Adequate Assurance of Trustworthiness, 1986 U. ILL. L. REV. 43 (1986); Edward Imwinkelried, The "Bases" of Expert Testimony: The Syllogistic Structure of Scientific Testimony, 67 N.C. L. REV. 1 (1988); Mark McCormick, Scientific Evidence: Defining a New Approach to Admissibility, 67 IOWA L. REV. 879 (1982); Andre Moenssens, Admissibility of Scientific Evidence — An Alternative to the Frye Rule, 25 WM. & MARY L. REV. 545 (1984); John Osborne, Judicial/Technical Assessment of Novel Scientific Evidence, 1990 U. ILL. L. REV. 497 (1990); John D. Borders Jr., Fit to be Fryed: Frye v. United States and the Admissibility of Novel Scientific Evidence, 77 KY. L.J. 849 (1988-89); and Jack Weinstein, Improving Expert Testimony, 20 U. RICH. L. REV. 473 (1986).

2. 951 F.2d 1128 (9th Cir. 1991), cert. granted, 113 S. Ct. 320 (1992).

3. Id. at 1129.

4. United States v. Solomon, 753 F.2d 1522, 1526 (9th Cir. 1985).

5. Daubert, 951 F.2d at 1131.

6. Id.

7. Id. at 1130-31.

8. GALILEO'S REVENGE: JUNK SCIENCE IN THE COURTROOM 228 (1991).

9. Daubert, 951 F.2d at 1131.

10. 293 F. 1013 (D.C. Cir. 1923).

11. Id. at 1014.

12. Id.

13. Id. (emphasis added).

14. See Gianelli, supra note 1, at 1208-25.

15. The empty "relevancy" and "helpfulness" standards that have become more popular since the Federal Rules of Evidence were passed are, like some applications of Frye, devoid of hard and helpful standards.

16. For as much as each of these criticisms speak to the inadequacies of Frye as it has been applied, they apply equally well to most every legal standard that has been formulated in Frye's place. Legal standards are notoriously capable of manipulation. Indeed, one of the law's strengths is its applicability in many different circumstances. The price for such flexibility is the introduction of malleable standards such as "reasonableness."

17. See discussion infra accompanying notes 20-30.

18. Id. at 1229.

19. Id.

20. See discussion infra accompanying notes 55-100.

21. FED. R. EVID. 702.

22. Id.

23. Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1116-17 (5th Cir. 1991) (Clark, C.J., concurring).

24. Id.

25. FED. R. EVID. 401.

26. FED. R. EVID. 402.

27. FED. R. EVID. 403.

28. FED. R. EVID. 401.

29. In re "Agent Orange" Product Liability Litigation, 611 F. Supp. 1223, 1256 (E.D.N.Y. 1985).

30. Christophersen, 939 F.2d at 1120.

31. Elliot Ellis, Science Panels in Toxic Tort Litigation: Why We Don't Use Them, in ICET Symposium III Immunotoxicology: From Lab to Law 115, 117 (Ithica, N.Y.: Institute for Comparative and Environmental Toxicology, Cornell University, 1987).

32. 736 F.2d 1529 (D.C. Cir. 1984).

33. Id. at 1535.

34. Id.

35. Id. at 1534.

36. Id. at 1535.

37. Learned Hand, Historical and Practical Considerations Regarding Expert Testimony, 15 HARV. L. REV. 40, 53 (1901).

38. Paul Strain & Bert Black, Judicial Control of Expert Medical Testimony, THE ROLE OF SCIENCE IN TOXIC TORT LITIGATION 45, 48 (A.B.A. TORTS & INS. PRACTICE SESSION 1989).

39. 788 F.2d 741 (11th Cir. 1986).

40. Id. at 743.

41. Id. at 745.

42. Id.

43. Id.

44. James Mills & Duane Alexander, Teratogens and "Litogens," 315 NEW ENG. J. MED. 1234, 1235 (1986).

45. Id.

46. 506 A.2d 1100 (D.C. 1986).

47. Id. at 1103.

48. Id. at 1104.

49. Id.

50. Id. at 1108.

51. Id. at 1110.

52. 884 F.2d 167 (5th Cir. 1989).

53. Id. at 169.

54. Id. (quoting Report of the Tort Policy Working Group on the Causes, Extent, and Policy Implications of the Current Crises in Insurance Availability and Affordability (Feb. 1986)).

55. 857 F.2d 823 (D.C. Cir. 1988), cert. denied, 493 U.S. 882 (1989).

56. Id. at 825.

57. Id. at 830.

58. Id.

59. Id. at 831.

60. Id.

61. Id.

62. Id. at 827 (quoting Richardson v. Richardson-Merrell, Inc., 649 F. Supp. 799, 803 (D.D.C. 1986)).

63. 830 F.2d 1190 (1st Cir. 1987) ("Lynch II").

64. Lynch v. Merrell-National Labs., 646 F. Supp. 856, 866 (D. Mass. 1986) ("Lynch I").

65. Id.

66. Id. at 866-67.

67. Lynch II, 830 F.2d at 1194 (citations omitted).

68. Id. at 1196.

69. Id. at 1197 (citing Ricciardi v. Children's Hosp. Medical Ctr., 811 F.2d 18, 25 (1st Cir. 1987)).

70. See infra text accompanying notes 73-100.

71. 755 F.2d 888 (11th Cir. 1985).

72. Id. at 892.

73. 939 F.2d 1106 (5th Cir. 1991).

74. Id. at 1108.

75. Id.

76. Id. at 1116 (Clark, C.J. concurring).

77. Id. at 1110.

78. Id.

79. Id. at 1114. Here the court actually blends Rules 702 and 703 together, since the helpfulness to the jury language is from Rule 702. See discussion infra accompanying notes 82-85.

80. Id. at 1114-15.

81. Id. at 1114.

82. 826 F.2d 420 (5th Cir. 1987).

83. Christophersen, 939 F.2d at 1113-14 (quoting Slaughter v. Southern Talc Co., 919 F.2d 304, 306-07 (5th Cir. 1990), quoting Viterbo, 826 F.2d at 422 (emphasis added)).

84. Id. at 1114 (emphasis added).

85. Id. at 1114-15.

86. Black, supra note 1.

87. Christophersen, 939 F.2d at 1115 (footnotes omitted).

88. Id.

89. The expert actually incorrectly based his opinion on the assumption that plaintiff had worked under such circumstances for 20 years.

90. Id.

91. Id. at 1112.

92. 911 F.2d 941 (3d Cir. 1990).

93. Id. at 943.

94. Id.

95. Id.

96. Id. at 945-46.

97. Id. at 953.

98. Id. at 954.

99. Id. (citation omitted).

100. Id. at 958.

101. Bert Black, Evolving Legal Standards for the Admissibility of Scientific Evidence, 239 SCI. 172, 175-76 (1988).