Oct 20 2010
Rule 702
I have followed with interest the legal issues surrounding expert scientific testimony in the courtroom. This is one of those topics that should be well known, but is generally not known outside of legal circles or those who have been at the wrong end of a liability suit.
It seems like a no-brainer that generally the public would want good science in the courtroom, and it is easy to understand the miscarriage of justice that would result from junk science. In a way science in the courtroom is a form of applied science – actual decisions have to be made, even when the science is inconclusive. In practice the line between solid science and speculative opinion is not stark, and it is that line that has been the focus of rules and precedent regarding expert testimony.
A recent court decision on a case involving manganese exposure and Parkinson’s disease seems to represent a positive trend in dealing with expert testimony. The case involves Jeff Tamraz who alleged that exposure to manganese through welding led to his Parkinsonism – a family of neurological disorders. Tamraz and his wife were awarded 20.5 million dollars by a jury, who decided against the five companies being sued. Those companies appealed the decision, and an appelate judge just set aside the judgment on the basis that the court in the case overstepped their bounds and violated Federal Rule 702 pertaining to expert testimony.
Rule 702 was amended in 2000 to include:
If scientific, technical, or other specialized knowledge will assist the trier of fact 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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
This amendment was meant to clarify the Daubert precedent, set in 1993. Actually the Daubert rule often refers to several precedent cases that together establish that judges can act as gatekeepers of expert testimony admissibility, that expert testimony needs to be based on relevant science, and that even not-strictly scientific areas of expertise apply.
But Daubert was often criticized as being vague, and so Rule702 was amended to make it more clear – that expert testimony has to be based on actual evidence. The recent ruling, apparently, is an important decision because it affirms the new and improved Rule 702 by excluding expert testimony because it crossed over the line from expert opinion to speculation. From reading various legal blogs it seems that this case is likely to have important implications for other similar cases.
The facts of this particular case are interesting from a neurological point of view. Tamraz has Parkinsonism – that much is not in dispute. Parkinsonism is a type of neurological disorder involving the basal ganglia, part of the brain that modifies movement to make it smooth and responsive. In Parkinsonism the feedback loop is disrupted, resulting in tremors, decreased movement, and impaired gait and balance.
The most common type of Parkinsonism is Parkinson’s disease, which is a degenerative disorder of unclear cause. It is, however, treatable with medication (improves symptoms but does not alter the course of the disease.
Manganism is caused by manganese toxicity and results in the symptoms above. However, there are differences with Parkinson’s disease. The symptoms are more symmetrical right and left, and the resulting gait has some specific features and has been described as a cock walk.
Apparently Tamraz clinically has a picture more like Parkinson’s disease and not like manganism. However, his neurologist speculated that perhaps he was predisposed to developing Parkinson’s disease and manganese exposure, while not sufficient to cause manganism, triggered Parkinson’s disease.
This is a fine theory, but it is simply not based upon establish scientific facts. And that is the precise basis of the appelate judge’s decision – the expert testimony was too speculative to be admissible.
I could not help thinking of all the vaccine-related cases that similarly are based upon speculation about mercury and autism. Anti-vaccine activists once claimed (and some still cling to this notion) that autism is mercury toxicity. That hypothesis has been rejected by scientific evidence. Autism, in fact, does not resemble mercury toxicity, and people with autism are not mercury toxic. So the antivaccinationists retreated to a more speculative position – that mercury triggers autism in a genetically susceptible subpopulation. This sounds strangely similar to the Tamraz theory above.
It is good to see that speculative theories about environmental triggers, lacking supportive evidence, do not pass the amended Rule 702. This may be an important precedent indeed.
11 Responses to “Rule 702”
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Speculation: great for proposing new avenues of research; not so good for deciding someone’s fate.
Your article immediately brought to mind all the brouhaha around Doctors’ Data Inc. vs. Dr. Stephen Barrett. I recall one critic of Dr. Barrett bringing up a case involving homeopathy where Barrett was found not to qualify as an expert. I’ll have to take a closer look at the case again to see how things may have gone differently in light of Rule 702.
“I recall one critic of Dr. Barrett bringing up a case involving homeopathy where Barrett was found not to qualify as an expert.”
I hope this is not true. I don’t even know what an expert in homeopathy could mean in theory. Perhaps it is someone with so little knowledge that their expertise is great.
If malpractice suits were determined only on fact (sans speculations), then wouldn’t medical expenses be much lower?
ccbowers, see this:
http://www.ratbags.com/rsoles/comment/kingbio.htm
Wouldn’t it marvelous if journalists had to apply those rules to their science reporting?
Think of the improvements. Journalist would have to make sure they are
a. Not reporting speculations or observational data.
b. That they are correctly applying the conclusions in their own article.
I wonder how this would affect a case where climate change was the issue. Both sides seem to think that they have science on their side.I could see that a judge having to make a ruling in such a case might be ‘baffled by BS’ by the ‘contrarian side of the argument.
Who ultimately gets to decide what is science?
@ tmac57 – Judges decide what evidence to allow (i.e. which experts can testify, etc.) using the rules of evidence. Luckily, rule 702 is well written and Justice Sutton (the judge that wrote the opinion for this case) is very good at reading laws.
This case is good news, but I wouldn’t hold it out there as a victory for skepticism or scientific understanding in our court system (not saying you were doing that Steve.)
I was cognitively apopleptic my first two years of law school due to what I sensed to be a disdain for science, math, scientists, economists, etc From the professors and the students. A quick example off the top of my head: We read a case one time where guilt was based on the victims past life regression therapy. No one said anything about about what BS PLRT is. So I raised the issue only to be met w/ replies of “I had regression therapy done on me and it helped me soo much. Science doesn’t know everything” etc. etc.
In my state every judge must have been a lawyer, and every lawyer must have been a law student. Law students receive no training in science or truly logical thinking. So unless they bring that knowledge with them to the bench, they probably wont have it. What they will have is 3 years of learning how to be expert cherry pickers and ad hoc reasoners.
@marc82281
Not knowing much about the US legal system, isn’t there some level of specialisation in the legal fraternity wherby a law student majors in the type of law that interests them? For example i know that in NSW, Australia, we have the Land and Environment Court where the lawyers who argue before it are not only legal practitioners but environmental scientists as well (though from what i can gather this is not compulsory).
It would seem that a beneficial thing to do would be to require lawyers who practice a certain type of law to undertake some level of study into the subject that they are arguing about. Does this happen as a lawyer gets known for winning certain types of cases?
I work with people who have given expert scientific testimony in the NSW court system and the burden of scientific proof that they have needed to present to back up any claims they make has been relatively large (though it appears that the evidence required by the other side is much smaller but that may be subjective).
@Skeptiverse
The short answer to your 1st Q is “no”, but it’s not an unqualified “no”. All lawyers are expected to be competent in any field of law and law schools generally encourage students to take classes in all fields. In most schools, the first year curriculum is mandatory and covers general topics in both civil and criminal law. After your first year you’re generally free to choose the classes you take. You can also enroll in a “clinic” which counts as one class. Clinics allow students to get hands on experience in a chosen field. So if you’re interested in family law, then you’d take a family law clinic where you might help out pro bono clients under the supervision of a licensed attorney.
As to your second Q, patent attorneys are the only attorneys that have to have any kind of specific academic training. Patent attorneys must have a bachelors degree in a natural science or engineering. But other than that, all lawyers are expected to be able to become “experts” in any field that a case might require. So theoretically, everyone of those lawyers in an anti-vaccine case thinks of them self as an “expert” in the fields of science relevant to that case. Despite the fact that many people in law school have never taken a math or science beyond the one class their undergrad degree probably would have required (the vast majority of US law students have liberal arts degrees.
edit: Maybe I should have said “the vast majority of US law students have humanities degrees” instead of “liberal arts”?
Also, I just realized while watching this week’s South Park that I should have just said “regression therapy” instead of “past life regression therapy”. Got my woo’s mixed up.