As we all know from the Vioxx jury trials, proving causation is a complex process. And still there can be ambiguity and even controversy, particularly when scientific data are relied on as key evidence. Frequently this degenerates in the courtroom to "the battle of the experts." We lead paint watchers endured four months of that in the Rhodie Island lead paint public nuisance trial.
That's why an article published in that American Bar Association's EXPERT ALERT, Summer 2008, should be of great interest to judges, lawyers, federal and state government, defendants, plaintiffs, NGOs, and, yes, the scientific community. The title is "Let Data Speak Equally To All: The Production, Protection, and Use of Raw Data in Litigation." The authors are Jones Day attorneys Laura Ellsworth, Chuck Moellenberg, and Neelie Simmons.
The first two have been prime players in the lead paint public nuisance litigation, representing Sherwin-Williams. Ellsworth argued her client's innocence both in the RI lead paint trial II and during the RI Supreme Court orals. [Those with a subscription to ABA EXPERT ALERT can retrieve the article here.]
The article's focus is the need for access to the raw data on which scientific studies were based. The Supreme Court agreed with this in "Daubert v. Merrill-Dow Pharmaceuticals, Inc." In that decision it ruled that courts, federal and state, have the responsibility to ensure that scientific testimony is not only of relevance but reliable. That entails making certain "that an expert ... employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field."
The most efficient way that can be accomplished, argue Ellsworth et al., is to have the data underlying the expert's opinion. That can bridge the gap between the opinions, usually opposed, of the scientists testifying on each side. More importantly, it can uncover overstatements, errors or downright fraud in the research. The authors cite the deliberate misrepresentation by Dr. Herbert L. Needleman in research used in a lead pollution case.
Of course, this makes sense. Too much so. That's why there is such an aggressive push not to allow the raw data to be retrieved. The objectives range from cost [not so much actually in this electronic age] to patient confidentiality [software can protect privacy] to the lack of necessity since publication of research is peer-reviewed [that peer review is an editorial procedure, not one assessing the research's validity]. Ellsworth et al. rebut those contentions.
The article concludes with eight cross-disciplinary principles to promote full and fair disclosure of raw material. They range form the availability of that data to opposing attorneys at deposition, trial and motions to unpublished studies relevant to the case be permitted.
As I see this, adoption of the authors' recommendations can become a powerful force of tort reform. The plaintiff bar would hesitate to bring class-action or even individual suits which rely on research whose methodology or statement of findings can be shown to be careless, inaccurate, hyperbolic, biased, or fraudulent. I suggest that this article be distributed to every tort-reform organization ranging from the Manhattan Institute to the U.S. Chamber of Commerce.