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Lie detectors, anti-emetics and truck tyres
Book reviews
Lie detectors, anti-emetics and truck tyres
the rules of evidence, can be retained by the court [6] as an 'objective' third party. Experts' roles therefore encompass:
Science on the Witness Stand Testifying in court;
Tee L Guidotti and Susan G Rose OEM Press, 2001, $50.00 ISBN 1883595312 This is a book written primarily for practitioners of workplace and environmental medicine and published by a boutique publishing house in that field. Its stated goal is to propound a system of "Evidence-based Medical Dispute Resolution" (EMDBR) toward reaching common ground between medical (science) professionals and legal professionals to resolve highly technical and science-driven cases. The authors concede that EMDBR is an "inartful" description of what they are after, and they're right ... and wrong. Regardless of one turgid acronym, there is much in this book to instruct both lawyers and scientists about what the other is, how they process information, perform their work, and how the two can promote just results when resolving disputes. It is primarily geared for those practising in the US system, however chapters concerning preparing and constructing expert opinions, the nature of science, and evidentiary frameworks in medicine and environmental law should be of value to other practitioners as well. The specialized knowledge presented in this book is considerable; the general subject matter is worth reading. As clinical medicine evolved from an anecdotal body of knowledge among practitioners to one based more in empirical studies, the character of information used in medicine changed. Similarly, when the law concerning scientific evidence in the US went from a static "admit nothing not already accepted in the relevant scientific community" - the Frye standard [I] - to the more dynamic Daubert legal standard [2] emphasizing the reliable application of scientific method to the case that makes every judge a gatekeeper assessing the reliability of all science, a sea change was afoot. The inherent suspicion of the reliability of scientific principles when used by advocates for forensic purposes [3] has focused much attention on how such evidence comes to court and the ways in which it is used. As more complicated relationships between medical and environmental factors and human infirmity became known, they inevitably wound up in court with the judicial system asked to assess and compensate blameworthy causes of injury. Expert witnesses became not only part of the landscape, but active participants in the process. Evidence concerning causation of illness or injury has been central to the cases that have developed the keystones of American jurisprudence having to do with scientific evidence: Daubert v. Merrill Dow Pharmaceuticals dealt with the relationship between the drug Bendectin and birth defects; General Electric v. Joiner [4] dealt with the health effects of PCB contamination; and Kumho Tire v. Carmichael[5] set the standard for admissibility of expert testimony based in specialized training and experience. In the US, expert witnesses can testify for either party, or, under
sciencetkjustice Volume 44 ~ o . (2004) 1 59 - 60
Educating judges or juries on scientific, medical or technical issues; Advising the court on underlying scientific methodology or reasoning (the "state of science"); Providing commentary on the testimony of parties' experts and offering an independent assessment of the relevant scientific or technical disputes in a case ("framing the issues"); Assisting in the assessment of damages or penalties. Expert witnesses must provide a clear opinion backed by a clear rationale and must articulate both in a manner that is useful to the finder of fact. Correctly pointing out that both law and science regard proof as a sliding degree of probability, this book makes a solid effort to bridge the gap of epistemology and language that exists between these disciplines. Recognizing that ascertaining knowledge is a universal goal does little until one recognizes that where scientists use uncertainty as cause for more research and better answers later, the law requires using facts available now to apply to a ripe cause to meet a determined standard of probability or else the case will fail. For scientists, a new hypothesis is a product; for lawyers, a verdict. The law usually cannot wait for the better or more comprehensive view of the problem for this case. The expert must therefore deal with levels of probability that can be assessed today for legal purposes, while still seeking further clarification for more complete scientific knowledge of the problem tomorrow. The practical and valuable advice this book gives to expert witnesses about how the legal system works, how it deals with scientific or technical issues and evidence and how to prepare to be an expert in a case transcends the narrow bounds of occupational and environmental medicine. Its distinction between experts and advocates, with appended guidelines for professional conduct is valuable. The book's insistence that the value of a scientific opinion depends on data (compelling evidence) rather than the persuasive power of the witness points to a subject much in need of discussion in the US, where the fear of "hired gun" experts is already tightening a legal standard for evidence announced in Daubert (1993)to be a "liberal" standard [7]. These comments are given a valuable and practical thrust as the authors give advice for preparation, report writing and analysis for the expert that would serve anyone called to testify. For the person immersed in cases involving occupational health or environmental issues, this book gives a thorough and example-filled discussion of causation, impairment ratings, presumptions and specific evidentiary needs and ways of addressing them. It deals with the claims adjustment process and ways of presenting scientificlmedical evidence to better effect a fair resolution at that stage of a claim. Its chapter on Bayesian
Page 59
Book reviews
assessment of causation is also a useful introduction to a topic of great concern regarding its probity as against possibilities of unduly invading the fact-finding province of a jury who must determine occurrence probabilities for themselves. The authors' treatment is even-handed and informative. What at first blush appeared to be a book geared to a limited audience turned out to have quite a few gems for both lawyers and scientists. It turned out to be much more instructive. The authors are persons with considerable experience in litigation of medical issues, and offer a valuable source of information within their field. As they go in more general directions, they also present much value in small packages for those trying to wend their way through the confusing intersection of law and science. For $50 USD, the scientific or legal practitioner could find the same quality general information more cheaply elsewhere. For those interested in the theory and practice of medical and environmental cases, or a new way to approach the area, this book assembles information well worth the price. Judge Roderick T Kennedy Fellow, American Academy of Forensic Sciences New Mexico Court of Appeals Santa Fe, NM
Notes 1
Fwe v. Unitedstates, 54 App.D.C. 46,47, 293 F. 1013, 1014 (1923).
2
Dauber! v. MerriN-Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125
3
Jonakait R. Real Science and Forensic Science. Shepard's Expert & Scientific
L.Ed.2d 469 (1993).
Evidence Quarterly 1993; 435-455, at 448-455. Reprinted in An Evidence Anthology, at 122-126 (E.J. Irnwinkelried & G. Weissenberger, eds., Anderson, 1996). 4
522U.S.136.118S.Ct.512,139L.Ed.2d508(1997).
5
526U.S.137,119S.Ct.1167,143L.Ed.2d238(1999).
6
Federal Rule of Evidence 706.
7
"a rigid 'general acceptance' requirement would be at odds with the 'liberd thrust' of the Federal Rules and their 'general approach of relaxing the traditional barriers to 'opinion' testimony", Daubert v. Merrell Dow Pharmaceuticals. Inc. 509 U.S. 579, 588, 113 S.Ct. 2786, 2794 (U.S.Cal.,l993). (Author's note: it is highly debatable whether this has been proven to be the case).
Page 60
science&justice Volume 44 ~ o . 1(2004) 59 - 60
Lie detectors, anti-emetics and truck tyres
the rules of evidence, can be retained by the court [6] as an 'objective' third party. Experts' roles therefore encompass:
Science on the Witness Stand Testifying in court;
Tee L Guidotti and Susan G Rose OEM Press, 2001, $50.00 ISBN 1883595312 This is a book written primarily for practitioners of workplace and environmental medicine and published by a boutique publishing house in that field. Its stated goal is to propound a system of "Evidence-based Medical Dispute Resolution" (EMDBR) toward reaching common ground between medical (science) professionals and legal professionals to resolve highly technical and science-driven cases. The authors concede that EMDBR is an "inartful" description of what they are after, and they're right ... and wrong. Regardless of one turgid acronym, there is much in this book to instruct both lawyers and scientists about what the other is, how they process information, perform their work, and how the two can promote just results when resolving disputes. It is primarily geared for those practising in the US system, however chapters concerning preparing and constructing expert opinions, the nature of science, and evidentiary frameworks in medicine and environmental law should be of value to other practitioners as well. The specialized knowledge presented in this book is considerable; the general subject matter is worth reading. As clinical medicine evolved from an anecdotal body of knowledge among practitioners to one based more in empirical studies, the character of information used in medicine changed. Similarly, when the law concerning scientific evidence in the US went from a static "admit nothing not already accepted in the relevant scientific community" - the Frye standard [I] - to the more dynamic Daubert legal standard [2] emphasizing the reliable application of scientific method to the case that makes every judge a gatekeeper assessing the reliability of all science, a sea change was afoot. The inherent suspicion of the reliability of scientific principles when used by advocates for forensic purposes [3] has focused much attention on how such evidence comes to court and the ways in which it is used. As more complicated relationships between medical and environmental factors and human infirmity became known, they inevitably wound up in court with the judicial system asked to assess and compensate blameworthy causes of injury. Expert witnesses became not only part of the landscape, but active participants in the process. Evidence concerning causation of illness or injury has been central to the cases that have developed the keystones of American jurisprudence having to do with scientific evidence: Daubert v. Merrill Dow Pharmaceuticals dealt with the relationship between the drug Bendectin and birth defects; General Electric v. Joiner [4] dealt with the health effects of PCB contamination; and Kumho Tire v. Carmichael[5] set the standard for admissibility of expert testimony based in specialized training and experience. In the US, expert witnesses can testify for either party, or, under
sciencetkjustice Volume 44 ~ o . (2004) 1 59 - 60
Educating judges or juries on scientific, medical or technical issues; Advising the court on underlying scientific methodology or reasoning (the "state of science"); Providing commentary on the testimony of parties' experts and offering an independent assessment of the relevant scientific or technical disputes in a case ("framing the issues"); Assisting in the assessment of damages or penalties. Expert witnesses must provide a clear opinion backed by a clear rationale and must articulate both in a manner that is useful to the finder of fact. Correctly pointing out that both law and science regard proof as a sliding degree of probability, this book makes a solid effort to bridge the gap of epistemology and language that exists between these disciplines. Recognizing that ascertaining knowledge is a universal goal does little until one recognizes that where scientists use uncertainty as cause for more research and better answers later, the law requires using facts available now to apply to a ripe cause to meet a determined standard of probability or else the case will fail. For scientists, a new hypothesis is a product; for lawyers, a verdict. The law usually cannot wait for the better or more comprehensive view of the problem for this case. The expert must therefore deal with levels of probability that can be assessed today for legal purposes, while still seeking further clarification for more complete scientific knowledge of the problem tomorrow. The practical and valuable advice this book gives to expert witnesses about how the legal system works, how it deals with scientific or technical issues and evidence and how to prepare to be an expert in a case transcends the narrow bounds of occupational and environmental medicine. Its distinction between experts and advocates, with appended guidelines for professional conduct is valuable. The book's insistence that the value of a scientific opinion depends on data (compelling evidence) rather than the persuasive power of the witness points to a subject much in need of discussion in the US, where the fear of "hired gun" experts is already tightening a legal standard for evidence announced in Daubert (1993)to be a "liberal" standard [7]. These comments are given a valuable and practical thrust as the authors give advice for preparation, report writing and analysis for the expert that would serve anyone called to testify. For the person immersed in cases involving occupational health or environmental issues, this book gives a thorough and example-filled discussion of causation, impairment ratings, presumptions and specific evidentiary needs and ways of addressing them. It deals with the claims adjustment process and ways of presenting scientificlmedical evidence to better effect a fair resolution at that stage of a claim. Its chapter on Bayesian
Page 59
Book reviews
assessment of causation is also a useful introduction to a topic of great concern regarding its probity as against possibilities of unduly invading the fact-finding province of a jury who must determine occurrence probabilities for themselves. The authors' treatment is even-handed and informative. What at first blush appeared to be a book geared to a limited audience turned out to have quite a few gems for both lawyers and scientists. It turned out to be much more instructive. The authors are persons with considerable experience in litigation of medical issues, and offer a valuable source of information within their field. As they go in more general directions, they also present much value in small packages for those trying to wend their way through the confusing intersection of law and science. For $50 USD, the scientific or legal practitioner could find the same quality general information more cheaply elsewhere. For those interested in the theory and practice of medical and environmental cases, or a new way to approach the area, this book assembles information well worth the price. Judge Roderick T Kennedy Fellow, American Academy of Forensic Sciences New Mexico Court of Appeals Santa Fe, NM
Notes 1
Fwe v. Unitedstates, 54 App.D.C. 46,47, 293 F. 1013, 1014 (1923).
2
Dauber! v. MerriN-Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125
3
Jonakait R. Real Science and Forensic Science. Shepard's Expert & Scientific
L.Ed.2d 469 (1993).
Evidence Quarterly 1993; 435-455, at 448-455. Reprinted in An Evidence Anthology, at 122-126 (E.J. Irnwinkelried & G. Weissenberger, eds., Anderson, 1996). 4
522U.S.136.118S.Ct.512,139L.Ed.2d508(1997).
5
526U.S.137,119S.Ct.1167,143L.Ed.2d238(1999).
6
Federal Rule of Evidence 706.
7
"a rigid 'general acceptance' requirement would be at odds with the 'liberd thrust' of the Federal Rules and their 'general approach of relaxing the traditional barriers to 'opinion' testimony", Daubert v. Merrell Dow Pharmaceuticals. Inc. 509 U.S. 579, 588, 113 S.Ct. 2786, 2794 (U.S.Cal.,l993). (Author's note: it is highly debatable whether this has been proven to be the case).
Page 60
science&justice Volume 44 ~ o . 1(2004) 59 - 60