A General Counsel Leader Discusses How Corporate Counsel And Their Law Firms Can Support The Civil Justice Reform Role Of LCJ: Sue McDonnell - Uniting Inside And Outside Counsel To Fight Junk Science

Friday, December 1, 2006 - 01:00

Editor's Note: Ms. McDonnell will be included among the participants in the General Counsel's Roundtable at the December Membership Meeting of Lawyers for Civil Justice (LCJ). In our November issue (see page 49), we interviewed two of the other participants: Russell C. Deyo, Vice President, General Counsel and Chief Compliance Officer, Johnson & Johnson, and Co-Chair, Civil Justice Reform Group (CJRG ) Steering Committee; and Eric Finkelman, Vice President and General Counsel, Ciba Specialty Chemical Corporation. These interviews provide a preview of their remarks.

Editor: Junk science is a major issue. Describe corporate concerns about the issue and how our readers and their law firms can support needed reforms.

McDonnell: Junk science is a major concern for corporations. Speculative, scientifically baseless opinions presented by an articulate expert witness can certainly influence the outcome of a case. And certainly it can have a significant impact on settlements even in cases that corporations might otherwise view as relatively minor.

Expert testimony, whether presented by plaintiffs or defendants, can strongly influence juries. Expert witnesses are given extraordinary privileges. Unlike lay witnesses, experts are permitted wide latitude to offer opinions, even if not based on firsthand knowledge. Experts are unique in that their testimony may be based on hearsay and otherwise inadmissible evidence for the limited purpose of justifying their opinions. In addition, courts may permit expert witnesses to testify on the issue that will ultimately be decided by the jury, such as whether a product was defective or whether a substance caused an individual's injury. Since it recognized that expert evidence can be powerful and misleading, the U.S. Supreme Court has given trial court judges the important responsibility of ensuring that expert testimony presented in court is based on reliable methodology and fits the facts of the case. Trial judges are instructed to act as "gatekeepers" to prevent juries from being inundated with junk science.

Editor: Is the use of junk science a growing problem or is the situation improving?

McDonnell: From about 1929 until 1993, federal courts permitted parties to present expert testimony involving novel scientific theories if the underlying theory or basis of opinion was "generally accepted" as reliable within the expert's particular field. Frye v United States, 293 F.2d 1013 (D.C. Cir. 1923). The "general acceptance" test, known as the " Frye standard," was applied too narrowly and usually came into play only where an expert's opinion involved the use of new technology or novel methodology. Otherwise, judges simply deferred to the purported expert, who often testified to opinions that were based upon nothing more than hunches, intuitive guesses or gut convictions rather than objective data collected and assessed according to the scientific method. Courts generally took a "let the jury decide" approach, allowing trials to become a battle of purported experts without regard to the soundness of the evidence. Bad science presented as fact by "experts" resulted in the removal of beneficial products from the market and severe economic consequences for many companies.

That state of affairs began to change in 1993 with the U.S. Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In Daubert, the Court ruled that Congress's adoption of the Federal Rules of Evidence in 1975 supplanted the test for admissibility of expert testimony then in effect in federal courts. What Daubert and its progeny really changed was emphasizing the obligation of district judges to critically assess the basis for every expert opinion.

Editor: Are most states following the Daubert Decision?

McDonnell: Some state courts have followed in the steps of Daubert, and their judges often serve as gatekeepers against unsound expert testimony. Unfortunately, many states continue to apply the old "general acceptance test". Others have adopted their own, less rigorous, standards, or have adopted something resembling the federal standard but have interpreted and applied it less stringently. Today, there remains a clear gap between evidentiary standards in federal court and the state courts.

In 2004, LCJ conducted three separate surveys of state court experiences regarding the admissibility of expert evidence and found that state court judges practically never excluded expert evidence. By a 3:1 margin, respondents thought that their state courts were not executing their "gatekeeper" function. Considering this, what are some of the most urgent reforms needed at the state level?

A couple of features of reform stand out and we support Federal Rule of Evidence 701 as amended in 2000. It provides that witnesses who are not testifying as experts may only testify as to opinions that are based on their own perception, helpful to determining an issue in the case, and not based on scientific, technical, or other specialized knowledge. The purpose of this provision is to ensure that experts are not presented as lay witnesses in order to avoid court review of the reliability of their testimony or to avoid the requirement that parties provide adequate disclosure of expert witnesses and the basis of their testimony to the opposing party.

Achieving greater uniformity among the states to consistently translate current scientific knowledge and consensus into court rulings is also at the core of achieving meaningful expert evidence reform at the state level. Federal standards require that expert testimony must be based upon sufficient facts or data, reliable principles and methods, and a reliable application of the theory to the facts of the case. As the Advisory Committee that adopted the federal rule explained, this provision "affirms the trial court's role as a gatekeeper and provides some general standards that the trial court must use to assess the reliability and helpfulness of preferred expert testimony." It also requires that the expert's methodology and conclusion "fit" the facts of the case. It applies to all forms of expert testimony, scientific, technical, or otherwise. The success that federal courts have had in performing their duties as "gatekeepers" - which has greatly reduced the amount of "junk science" found in federal courtrooms - needs to be emulated by all state courts.