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© 2006 American Public Health Association
DOI: 10.2105/AJPH.2005.077149
LETTER |
Eula Bingham is with the University of Cincinnati College of Medicine, Cincinnati, Ohio. Les Boden, Richard Clapp, and David Ozonoff are with the Department of Environmental Health, Boston University School of Public Health, Boston, Mass. Polly Hoppin is with the School of Health and Environment, University of Massachusetts, Lowell. Sheldon Krimsky is with the Department of Urban and Environmental Policy and Planning, Tufts University, Medford, Mass. David Michaels is with the Department of Environmental and Occupational Health, School of Public Health and Health Services, George Washington University, Washington, DC. Anthony Robbins is with Tufts University School of Medicine, Boston, Mass.
Correspondence: Requests for reprints should be sent to David Michaels, PhD, MPH, Department of Environmental and Occupational Health, School of Public Health and Health Services, George Washington University, 2100 M St NW, Suite 203, Washington, DC 20037 (e-mail: eohdmm{at}gwumc.edu).
Judging by his simplified summary of what he believes to be the aims of the Daubert v Merrell Dow Pharmaceuticals, Inc, decision, Gori appears to have misunderstood much of what was presented in the July supplement to the Journal. Scientific reasoning is no more amenable to a mechanical approach than is legal reasoning. Daubert imposes unreachable objectives on judges: to separate science from nonscience and good science from bad science. Many of these concerns, which were detailed in the supplement,1–7 went unaddressed by Gori.
Legal disputes about public health and medical science often involve research at the frontiers of our knowledge, and scientists frequently disagree about what conclusions to draw from this research. These disagreements are part of "normal" science. Is a judge capable of settling these disagreements? Is a judge any more capable than a jury of citizens? There is virtually no evidence that the answer to these questions is yes, and there is substantial evidence to the contrary.8–10
Equally troubling to us is the role of Daubert in encouraging research designed by polluters and manufacturers of dangerous products to create the impression of scientific dispute.11 Meeting even a pro forma challenge requires extensive resources, precluding some injured individuals from even entering the justice system.12 Now the scientific bases for regulations protecting the public’s health and environment are increasingly being subjected to Daubert-like challenges, many of which are frivolous.9,13,14
Most public health scientists will probably agree with the following points:
- When science is used in the law, science should protect public health and serve justice. Scientists serving as experts have helped to do this, and the justice system should be structured to encourage the use of scientific experts.
- Lawsuits are an important mechanism for holding polluters and manufacturers of harmful substances responsible for their actions and are incentives for them to reduce the public’s exposure.
- Efforts should be made to eliminate factors that tip the scales of justice against public health and the victims of harmful substances.
The challenge facing the justice system, writes Sheila Jasanoff, "is not how judges can best do justice to science; the more critical concern is how courts can better render justice under conditions of endemic uncertainty and ignorance."1(pS49)
Acknowledgments
The authors are the planning committee for the project on Scientific Knowledge and Public Policy (SKAPP).
References
1. Jasanoff S. Law’s knowledge: science for justice in legal settings. Am J Public Health. 2005;95:S49–S58.
2. Cecil J. Ten years of judicial gatekeeping under Daubert. Am J Public Health. 2005;95:S74–S80.
3. Rothman KJ, Greenland S. Causation and causal inference in epidemiology. Am J Public Health. 2005; 95:S144–S150.
4. Haack S. Trial and error: the Supreme Court’s philosophy of science. Am J Public Health. 2005;95: S66–S73.
5. Ozonoff D. Epistemology in the courtroom: a little "knowledge" is a dangerous thing. Am J Public Health. 2005;95:S13–S15.
6. Cranor C. Scientific inference in the laboratory and the law. Am J Public Health. 2005;95:S121–S128.
7. Melnick RL. A Daubert motion: a legal strategy to exclude essential scientific evidence in toxic tort litigation. Am J Public Health. 2005;95:S30–S34.
8. Vidmar N. Expert evidence, the adversary system, and the jury. Am J Public Health. 2005;95:S137–S143.
9. Wagner W. The perils of relying on interested parties to evaluate scientific quality. Am J Public Health. 2005;95:S99–S106.
10. Gatowski S, Dobbin S, Richardson JT, Ginsburg GP, Merlino ML, Dahir V. Asking the gatekeepers: a national survey of judges on judging expert evidence in a post-Daubert world. Law Hum Behav. 2001;25: 433–458.[CrossRef][Web of Science][Medline]
11. Michaels DM, Monforton C. Manufacturing uncertainty: contested science and the protection of the public’s health and environment. Am J Public Health. 2005; 95:S39–S48.
12. Berger MA. What has a decade of Daubert wrought? Am J Public Health. 2005;95:S59–S65.
13. Neff RA, Goldman LR. Regulatory parallels to Daubert: stakeholder influence, "sound science," and the delayed adoption of health-protective standards. Am J Public Health. 2005;95:S81–S91.
14. McGarity TO. Daubert and the proper role for the courts in health, safety, and environmental regulation. Am J Public Health. 2005;95:S92–S98.
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