Jeffrey Bossert Clark*
This article is part two of a two-part series covering the colloquium
held on July 10, 1997 in Washington, D.C. The first part was published
in the Fall 1997 issue of Environmental Law and Property Rights
Luncheon Address by Peter Huber
After the morning session had ended and lunch was nearly complete,
Peter Huber rose to give his keynote address. Huber tried to flesh
out what he viewed as the two most important words in the Daubert
opinion: "falsifiability" and "reliability."
At times, however, Huber could not help but comment on certain portions
of the morning session that had aroused his interest.
Huber began by analyzing the word "falsifiability." He
was struck by the fact that Chief Justice Rehnquist, in his dissent
in Daubert, claimed not to know what the word meant. Therefore,
Huber thought it might be profitable to explore the meaning of this
word drawn from the philosophy of science espoused by Sir Karl Popper.
See Daubert, 509 U.S. at 600 (Rehnquist, C.J., concurring in part
and dissenting in part) ("I defer to no one in my confidence
in federal judges; but I am at a loss to know what is meant when
it is said that the scientific status of a theory depends on its
"falsifiability," and I suspect some of them will be,
too."); Karl Popper, Conjectures and Refutations: The Growth
of Scientific Knowledge 37 (5th ed. 1989). Huber mused that Justice
Blackmun, the author of Daubert, may also not have known what the
word meant and it was likely that neither Justice Blackmun nor his
clerks have ever read Poppers principal works, at least not
in their entirety. Huber, an MIT-trained engineer as well as a lawyer,
set out to bridge the gap. In the simplest terms possible, Huber
said that what Popper meant by "falsifiability" was that
in order for a theory to qualify as science it must make predictions
that are concrete enough to be proved wrong. Huber also traced Poppers
insights to Poppers impatience with the unfalsifiable claims
of contemporaries Marx and Freud.
Huber then quoted from the affidavit of one of the plaintiffs
expert in Daubert, Dr. Shanna Swan. Huber mused that Dr. Swan had
likely not written that affidavit herself because it was phrased
in "lawyer-speak." After reading a 71-word passage containing
a lot of double-negatives, Huber said it was time for the lawyer
to "invite Popper in." Applying Poppers falsifiability
analysis, Huber demonstrated that Dr. Swans assertions were
not science because they could not be proven wrong. Echoing a point
made earlier by Dr. Ehrlich, Huber argued that it is impossible
for science to prove ultimate negatives. Thus, it should come as
little surprise that Jason Daubert and his parents eventually lost
their case against Merrell Dow, making the positive spin put on
Daubert by the plaintiffs bar right after the case was decided
ring hollow. (On a lighter, but practical note, Huber explained
that he had personally spoken to the Dauberts and that their name
was pronounced /Daw-bert/ not /Dow-bert/ or /Do-bear/.)
Taking up the challenge laid down by Bryant, Huber asserted that
he was perfectly content to have Dauberts test to exclude
junk science be applied in a totally neutral fashion, so that defendant
experts were just as susceptible of being excluded. He had never
maintained anything to the contrary, he retorted. Huber also responded
to Bryants charge that Galileos Revenge was unscientific.
"Its true," said Huber. As if to say that Bryants
point were irrelevant, Huber said that Galileos Revenge was
merely "a polemic sold in bookstores."
Moving on to the second important word from Daubert, "reliability,"
Huber argued that this term was not equivalent to the term "validity."
To understand the true meaning of "reliability," according
to Huber, one must consult the eighteenth-century mathematician,
Thomas Bayes. Huber explained "Bayes theorem" with a simple
example. Suppose your grandmas eyesight is 80 percent accurate
(valid) and grandma tells you that she saw a yellow taxicab. Should
grandma be allowed to testify to the taxicabs color in court?
Most judges (and most people) approach this question in the following
way: 80 percent is pretty good accuracy -- I would allow grandma
to testify; now maybe 60 percent or less would be too low. Such
thinking misses half of what is important, as Bayes has demonstrated.
Suppose your grandma told you she saw a yellow lion outside, would
you still let her testify in court? Suppose your grandma told you
she saw a yellow stegosaurus? Under Bayes theorem, whats important
to judging overall "reliability" is not just the characteristics
of the observer ("validity") but the likelihood that what
an observer claims he has seen is true in the world at large.
Huber then posed the question of how we obtain information about
the extrinsic likelihood that observed (or predicted) events are
true. In the case of grandma and the yellow taxicab, the Division
of Motor Vehicles can give us information about what proportion
of taxicabs are yellow. But in cases where new scientific issues
are under consideration, there is no Division of Motor Vehicles
to consult. What to do? According to Huber, at this point we have
to make an estimate of extrinsic likelihood. How do we make such
an estimate? The best estimate of extrinsic likelihood is derived
from a range of observations, or in terms of the grandma analogy,
by looking at what the whole gamut of grannies have to say about
the color of the taxicab. Turns out that under Bayes theorem that
comes down to doing something that looks a whole lot like assessing
whether scientific theories have achieved general acceptance. Ironically,
the Daubert decision, which held that the Federal Rules of Evidence
had abrogated the general-acceptance test of Frye v. United States,
293 F. 1013 (D.C. Cir. 1923), has merely recreated Frye and to that
requirement added the further requirement of falsifiability. For
Huber, the Court has essentially come full circle and gone the older
law one better.
Turning to questions, Huber at first first faced some skepticism
about the Bayes theorem. Huber did his best to explain that the
Bayes theorem really was true, although he acknowledged that it
sometimes produces counter-intuitive results. As an example, he
used the fact that although the current HIV test is 99.8% valid,
seven out of ten people without the virus currently get false-positive
test results because the disease is so rare in the population as
a whole. This "cries out against my intuition," admitted
Huber, but it is true nonetheless.
The same federalist difficulty put forth in the morning session
was also served up to Huber. Hubers response was: "You
have to choose your poisons," implying that in this case, it
is simply worse from a conservative perspective to allow juries
to pass on whether theories qualify as real science than to give
judges greater powers as gatekeepers to do the same. Sounding a
variation on Judge Hand, Huber asked the rhetoric question of why
we dont put legal questions to juries -- "Ladies and
Gentlemen of the jury, here is the text of Rule 10b-5. Please tell
us what it means."
Lastly, I asked Huber the purely legal question of whether his
reading of the meaning of "reliability" in Daubert was
justified since Daubert specifically makes general acceptance a
single factor in the determination of what is truly scientific rather
than a determinative one and because the opinion appears to use
the words "reliability" and "validity" interchangeably.
Huber acknowledged the latter difficulty, but seemed to say that
his reading of Daubert was plausible and that it made for better
policy. "Who knows what the Court really meant by the term?,"
Many of the ideas Huber expressed at lunch are contained in his
new book, Judging Science: Scientific Knowledge and the Federal
Courts (MIT Press 1997), and Huber recommended that Federalist Society
members pick up a copy.
Afternoon Session on Science and Toxic
Torts: Who Decides and How
Panelists included Professor David Bernstein, George Mason Law
School, co-editor of Phantom Risk: Scientific Inference and the
Law (MIT Press 1993); Jackson Sharman, III (Moderator), Lightfoot,
Franklin & White, Vice Chairman of Programs for the E.L. Wiegand
Practice Group in Environmental Law & Property Rights.
Professor David Bernstein dominated the afternoon session because
of the unexpected absence of plaintiffs bar representative
Anthony Z. Roisman of the law firm of Cohen, Milstein, Hausfield
& Toll. Moderator Jackson Sharman, however, brought the welcome
perspective of a grizzled lawyer fighting to defend corporations
against "junk science" in the unreceptive state-court
systems of Alabama and Mississippi. Sharman summarized the sophistication
of many in the Mississippi judiciary by telling the story of a judge
whose name I have altered slightly to "Billy Bob." At
one point in a proceeding, Judge Billy Bob looked down at Sharman
and said, "Cases, I dont need no cases!" Sharman
challenged Professor Bernstein to give him some practical advice
that would be useful in such situations (a tall order).
Not one to be taken off his game plan merely because his adversary
was a no-show, Professor Bernstein referred to an article quoting
Roisman in the June 22, 1997 edition of the Houston Chronicle: "This
isnt about whos right -- this is about who has the right
to give an opinion. That's a mistake courts make. In the field of
toxic exposure, there is room for scientists to have an opinion
before there is a scientific consensus. Some cases are ahead of
the curve. In those cases, the jury is at least as well-equipped
as the judge to decide -- not whos right, but who should win."
Mike Tolson, Matter of Proof -- Courting Billion-Dollar Consequences
-- Changing Rules on Scientific Testimony Could Have a Big Impact
on Torts, Especially Breast-Implant Lawsuits, Hous. Chron. 6/22/97,
available in 1997 WL 6564872. For Professor Bernstein, this approach
is seriously in error. Lawsuits where scientific claims are at issue
must be judged by a "rule of fact" as much as a "rule
of law." Scientific truth, or "whos right"
in the words of Roisman, should matter according to Professor Bernstein.
Justice means more than simply giving both plaintiff and defendant
their day in court and urging the jury to follow its conscience.
Professor Bernstein reviewed a number of alternative legal explanations
for why "junk science" should be excluded from the courtroom.
First, suggesting that Judge Hands insights are now obsolete,
Professor Bernstein argued that the notion that experts should be
treated as exceptional cases in the law of evidence because they
can offer opinions is no longer true because the Federal Rules of
Evidence now allow lay witnesses in some cases to offer opinions.
Professor Bernstein also rejected an explanation based on jury incompetence
because Daubert rejected this argument. See Daubert, 509 U.S. at
596 ("respondent seems to us to be overly pessimistic about
the capabilities of the jury and of the adversary system generally.
Vigorous cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.").
Whats left, according to Professor Bernstein? The new governing
principle is that any expert scientific testimony must be capable
of being cross-examined. In other words, the heart of Daubert is
its emphasis on falsifiability. As Professor Bernstein explained,
modern Popperian scholarship equates falsifiability with criticizability.
In the courtroom this means -- will litigants be able to attempt
to undermine effectively the expert testimony presented by the other
side? A useful companion question to ask in this regard is -- can
the expert make quantifiable predictions based on his theory?
The reason for emphasizing falsifiability is that experts should
not be allowed to speculate in the courtroom. Speculation is particularly
an evil to be avoided in the judicial context because lawyers go
shopping for experts. The other side need never be told how many
experts were approached before the hiring side found what it had
been looking for. Peer review and the general-acceptance factors
of the Daubert test were similarly deployed by the Court according
to Professor Bernstein in order to ensure that expert speculation
is eliminated or minimized. To these tools Professor Bernstein added
Judge Kozinskis focus on whether the experts work had
been generated solely for the purposes of litigation. Unless unscientific
evidence is excluded from the jurys view, according to Professor
Bernstein, juries are inclined to "throw up their hands"
and decide cases based on sympathy or the relative congeniality
of opposing counsel. Professor Bernstein directed anyone who doubts
this conclusion to consult the transcript of the comments made by
jurors in the Laas breast-implant trial. SeeFRONTLINE:Breast Implants
on Trial, Feb. 27, 1996, available in LEXIS, Nexis Library, SCRIPTS
In addition to the Eleventh Circuits wayward decision in
Joiner, Professor Bernstein suggested that Federalist Society members
should read the D.C. Circuits opinion in Ambrosini v. Labarraque,
101 F.3d 129 (D.C. Cir. 1996) (Rogers, J.), cert. dismissed, 117
S. Ct. 1572 (1997). The plaintiff in Ambrosini claimed that her
childs birth defects had been caused by her ingestion of the
drugs Bendectin and Depo-Provera while pregnant. Based on Daubert,
the D.C. Circuit had earlier held that the plaintiffs Bendectin-related
expert testimony should be excluded. In Ambrosini the court concluded
that the expert testimony relating to the plaintiffs claims
regarding Depo-Provera should be treated differently, primarily
because in the case of Depo-Provera the defendants had not produced
the same body of epidemiologic evidence that they had mustered against
the claim that Bendectin causes birth defects. In Professor Bernsteins
view, this approach is wrong for two reasons. First, it contradicts
Daubert because that decision requires that admissible expert testimony
qualify as science. Since the same flimsy sorts of animal studies
had been presented to support the plaintiffs Bendectin claims,
testimony regarding the Depo-Provera claims should also have been
excluded. In the words of Professor Bernstein, this approach was
erroneous because "somethings either science or its
not." A plaintiffs evidence cannot be transmogrified
into science based on a defendants inability to produce evidence
on the other side. Second, and more obviously, the plaintiff has
the burden of proof. It was thus fundamental error in Ambrosini
to give dispositive weight to the lack of contrary evidence presented
by the defendant when deciding whether to grant a Daubert motion.
(The Joiner opinion is similarly guilty of improper burden-shifting.
See Joiner, 78 F.3d at 537 (Smith, J., dissenting) (citing Daubert).)
Professor Bernstein also added to his reading list in this area
the Ninth Circuits decision in Hopkins v. Dow Corning Corp.,
33 F.3d 1116 (9th Cir. 1994), cert. denied, 513 U.S. 1082 (1995).
The district judge in Hopkins should have excluded the plaintiffs
experts according to Professor Bernstein. (It will come as little
surprise to Federalists that the district judge in Hopkins was Thelton
Henderson, the same judge who struck down the California Civil Rights
Initiative on logic that was tantamount to arguing that affirmative
action is not only constitutionally permissible but constitutionally
compelled. See Coalition for Economic Equity v. Wilson, 946 F.Supp.
1480, revd 110 F.3d 1431 (9th Cir. 1997).)
Continuing with his attack on the absent Roisman, Professor Bernstein
turned to Roismans assertion that cases are sometimes ahead
of the curve. Professor Bernstein was willing to entertain the possibility
that a few true Galileos might somehow find their way to testifying
for plaintiffs. The problem, Professor Bernstein argued, is a practical
one -- most of the new "scientific" theories advanced
in the courtroom turn out to be wrong. Perhaps a different set of
legal rules should obtain if the opposite were true, but it is not.
Thus, keeping a few Galileos out of the courtroom is a small price
to pay to obtain the benefits of excluding a host of quacks.
Professor Bernstein associated Roismans approach with that
of fellow Professor E. Donald Elliott. Particularly irksome to Professor
Bernstein is Professor Elliotts assertion that "Toxic
tort cases are about good and evil, about corporate greed and indifference,
and about risk of the unknown. But above all, toxic tort cases are
about redefining our public morality for a new era in which we must
confront the troubling truth that we do not fully comprehend the
relationships between the things that we have made and our health
and well-being." Planning and Managing Mass Toxic Tort Cases,
C534 ALI-ABA 605, 611 (1990). "Redefining our public morality"
"is a bit much to ask of our tort system," Professor Bernstein
maintained. Professor Bernstein also found Professor Elliotts
pioneering sense of justice questionable since Professor Bernstein
believes that plaintiffs should have to establish that there has
truly been a victim before being allowed to secure a recovery from
a potentially blameless party. Mere status as a corporation and
the environmental track record of corporations generally should
never be enough to change the normal rules of evidence.
Sharman then put his own question to Professor Bernstein before
opening up the floor more generally. In Sharmans view, since
most juries approach cases in good faith and do their best to muddle
through even complicated scientific issues, the problem in this
area of the law is judges who allow "junk science" to
go to juries and thereby either confuse them or provide them with
a handy justification for indulging their prejudices. Implying that
the presentations of the day had operated on perhaps too theoretical
a plane, Sharman asked Professor Bernstein for practical advice
on to deal with judges like Judge Billy Bob, who often say that
Daubert-like arguments are really arguments about the sufficiency
of the evidence. Given that perspective, such judges are unwilling
to "cut the legs out from under" plaintiffs at an early
stage of the litigation. Professor Bernstein could only reiterate
his point that the falsifiability prong of Daubert is easily translatable
into a plea to a judge to force the side propounding "junk
science" to "give us something we can cross examine."
Professor Bernstein conceded, however, that the admissibility and
sufficiency inquiries in this area of the law were intertwined to
such a degree, however, that it is hard to give simple advice about
how to sway judges inclined to frame admissibility issues as matters
The next question to Professor Bernstein came from an audience
member who was troubled by the reality that much of the science
bearing on commonly litigated issues is performed by the corporate
defendants themselves or by other industry-affiliated scientists
rather than pure academics. Dont plaintiffs in toxic tort
cases superficially appear to have a point when they advance claims
of bias? To this Professor Bernstein suggested that expanded use
of neutral scientific panels should be investigated, such as Warren
had advocated in the morning session. (It appears to the author
that a further useful response to overly-simplistic arguments for
even-handed application of Daubert is that there are solid reasons
for judges (and juries) to give more credence to corporate science
over plaintiff-generated science. While completely neutral science
is the ideal, corporate science is at least monitored in many areas
by federal or state regulators. Much corporate science is in fact
performed to satisfy regulatory requirements. The extensive testing
required by the Federal Insecticide, Fungicide, and Rodenticide
Act comes to mind readily. Plaintiff-driven science is far more
questionable because there really are no external checks on its
validity other than judges who faithfully apply Daubert (or in the
state courts that have not followed Daubert, Frye). Many hired-gun
experts can make a good enough living as frequent witnesses that
they cease even to guard their professional repuations.) Professor
Bernstein also referenced a work in the Federalist Societys
anchor journal by audience member, Paul Taylor, who explored the
common-law self-critical analysis privilege, which prevents voluntarily
performed corporate investigations from being used by plaintiffs
against the corporations that generated the information. See Note,
Encouraging Product Safety Testing by Applying the Privilege of
Self-Critical Analysis When Punitive Damages Are Sought, 16 Harv.
J. L. & Pub. Poly 769 (1993).
Another of the positions advanced by Professor Elliott that Professor
Bernstein criticized was the suggestion that the burden on Daubert-like
questions of admissibility should be shifted to defendants when
plaintiffs can show that there was some effort by a defendant to
conceal material information (usually through the mechanism of the
"discovery tort" discussed in the morning) from past or
present plaintiffs. One audience member intrigued by this concept
asked Professor Bernstein whether he took his distaste for this
burden-shifting idea so far as to reject the doctrine of spoliation,
which applies a judicial inference that destroyed evidence was damaging
to the reponsible partys case. Professor Bernstein responded
in the negative -- there is an important difference between withheld
evidence that is eventually turned over and evidence that is destroyed.
Sharman agreed with Professor Bernstein and echoed Warrens
concerns in the morning session about the rise of the "discovery
The next question put to Professor Bernstein was whether the Seventh
Amendment requires plaintiffs to be given the opportunity to present
the views of minority scientists to juries. In Professor Bernsteins
view, Seventh Amendment objections to the exclusion of evidence
are red herrings and the Supreme Court rightly gave them short shrift
in Daubert. Codes of evidence have never been thought unconstitutional.
By contrast, the trio of summary judgment cases in 1986 seems to
have impinged on the right to a jury trial far more than Daubert
in Professor Bernsteins view and those cases are good law.
Provocative ideas like Judge Hands solution to "junk
science" do raise novel Seventh Amendment questions for Professor
Bernstein, however. Professor Bernstein also endorsed a recommendation
by Professor George Priest that juries should be required to at
least write down the reasons for their verdicts in complex cases.
Professor Bernstein suggested the possibility, however, that once
the curtain hiding Oz was torn away such a reform might have the
effect of toppling the civil-jury-trial system we use in products-liability
Lastly, Professor Bernstein was asked about how case reports in
the medical literature contribute to new litigation crazes. He pointed
out that scientists, like members of the media, have an incentive
to make news and thus there is a bias in the scientific literature,
at least when considering an issue for the first time, to search
for a causal link between some product or service and the illnesses
of users. In closing, Professor Bernstein recognized that while
peer review is an important factor in analyzing whether a theory
can truly claim scientific status, it should not be thought dispositive.
He pointed to the mild scandal over an article published in the
Journal of the American Medical Association (JAMA), purporting to
establish that breast-implants caused nursing problems. There were
many flaws in this study, however, and Professor Bernstein opined
that it never should have been published. See Jay P. Mayesh &
June A. O'Hea, Second-Generation Breast Implant Claims: A Tough
Road to Hoe, 5 Med./Leg. Aspects of Breast Implants No. 3 (1997),
available in WESTLAW, TP-ALL database.
Speaking for those who attended this Colloquium, I can say that
I thoroughly enjoyed it and I encourage attendance at the next such
*Jeffrey Bossert Clark is an associate at the law firm of Kirkland
& Ellis and a member of the Federalist Societys E.L. Wiegand
Practice Groups in Administrative Law & Regulation, Environmental
Law & Property Rights, and Federalism & Separation of Powers.