Make Your Corporate Contributions Count - Consider "Atlantic Legal"

Monday, May 1, 2006 - 01:00

Al Driver, Editor
The Metropolitan Corporate Counsel

From your vantage point, you know that the United States is the most litigious country in the world. In fact you can feel the pain whenever you talk to your CEO about that needed budget increase.

A recent study by Tillinghast-Towers Perrin found that the U.S. tort sys-tem cost $260 billion in 2004, projected to rise to $315 billion by 2007, outpacing the expansion of the economy. According to a 2004 Business Roundtable survey, 24 percent of CEOs cited litigation costs as their com-pany's greatest cost pressure.

The burden of litigation on productive activity can be reduced by civil justice reform. The integrity of our jury system is of great concern to all of us. Progress has been made in reducing the use of "junk science" as the basis for erroneous jury verdicts. The landscape is uneven, but progress has been and is being made.

In 1993, the U.S. Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579. Daubert quickly became a seminal case on the admissibility of expert evidence in federal court proceedings under Fed.R.Evid. 702. It was followed in 1997 by General Electric Co. v. Joiner, 522 U.S. 136, and in 1999 by Kumho Tire Co. v. Carmichael, 526 U.S. 137, both of which elaborated and expanded the Court's teaching in Daubert.

Together, these three cases have had a far-reaching impact on product liability, environmental exposure and other cases in federal courts. In 2002, Fed.R.Evid. was amended to incorporate the criteria articulated in Daubert.

Numerous states have adopted Fed.R.Evid. 702 or a variation of it and some have also adopted the 2002 amendment. Some states have not, how-ever, imported the Joiner or Kumho elaborations on Daubert. Some states have adopted a variation on Daubert, or have adopted Daubert in only limited types of cases. Other states have explicitly rejected Daubert and its progeny, and some state courts, while verbally disavowing Daubert, have themselves adopted similar standards.

Atlantic Legal Foundation, a public interest law firm, has played an influential role in the Daubert trilogy and later litigation seeking to ensure that the courts use their "gatekeeping" power to ensure that sound science is used as the basis for adjudication. Its amicus brief on behalf of half a dozen Nobel laureates and a dozen other prominent scientists was cited and quoted by the majority in Daubert, and its amicus brief in Kumho was also cited with approval by the Court. The Supreme Court majority rarely cites an amicus brief, and it is even rarer for the Court to do so twice on the same subject.

Atlantic Legal has submitted numerous briefs in federal and state appellate courts urging the adoption or application of "sound science" principles in many types of cases, and its briefs have been influential in obtaining decisions based on sound science. In various science-related cases, Atlantic Legal has represented numerous renowned scientists, including more than a dozen Nobel laureates in Chemistry, Medicine and Physics, as well as professors at Harvard, Yale, MIT, the University of California and other esteemed institutions. It well merits the praise of Hank McKinnell, Chairman and CEO, Pfizer Inc., who stated "I congratu-late Atlantic Legal Foundation for your work in tort reform, particularly in fighting the menace of junk science in our nation's courtrooms."

As a member of Atlantic Legal's Advisory Council, I have had a first hand opportunity to observe the care with which it selects the cases in which it files amicus briefs and to appreciate the quality of its work. The fact that 17 present and former corporate counsel are actively involved as members of its Board and Advisory Council attests to its effectiveness. Its ability to file needed amicus briefs can be enhanced if your company joins with other companies to support its efforts.

I urge you to visit Atlantic Legal's Web site at www.atlanticlegal.org or call its president, Bill Slattery, (also a former general counsel) at (212) 867-3322 and then to consider bringing Atlantic Legal to the attention of your company's contributions committee.