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AJPH First Look, published online ahead of print Nov 29, 2005
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January 2006, Vol 96, No. 1 | American Journal of Public Health 33-37
© 2006 American Public Health Association
DOI: 10.2105/AJPH.2005.063917

HEALTH POLICY AND ETHICS

Junking Good Science: Undoing Daubert v Merrill Dow Through Cross-Examination and Argument

Daniel Givelber, JD and Lori Strickler, JD

At the time of the preparation of the article, both authors were with Northeastern University School of Law, Boston, Mass.

Correspondence: Requests for reprints should be sent to Daniel Givelber, JD, Northeastern University School of Law, 400 Huntington Ave, Boston, MA 02115 (e-mail:d.givelber{at}neu.edu).

For more than 40 years, the tobacco industry prevailed in lawsuits brought by injured smokers, despite overwhelming epidemiological evidence that smoking caused lung cancer. Tobacco lawyers were able to create doubt about causation. They sought to persuade jurors that "everybody knew" smoking was harmful but "nobody knows" what causes cancer by recreating in court the scientific debate resolved by the 1964 Surgeon General’s Report.

The particularistic structure of jury trials combined with the law’s mechanistic view of causation enables a defendant to contest virtually any claim concerning disease causation. Despite judicial efforts to eliminate "junk science" from lawsuits, a well-financed defendant may succeed in persuading jurors of the epidemiological equivalent of the proposition that the earth is flat.




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