Biomedical Scientists and Physicians as Experts in Federal Courts

Figure: Deborah RunkleIn the last few decades, litigation involving claims of harm caused by medications or medical products has received wide publicity. Particularly famous—or infamous—are the product liability cases in which the manufactures of Bendectin and silicone gel breast implants were defendants. Litigation regarding the use of the anti-nausea medication Bendectin by expectant mothers who subsequently gave birth to infants with birth deformities was in the courts for almost two decades, with thousands of plaintiffs. Expert witnesses called by plaintiffs and defendants included physicians, pharmacologists, epidemiologists, and toxicologists. In some cases, 20 or more expert witnesses testified. In federal courts alone, there were more than 27,000 product liability cases involving silicone gel breast implants. Experts included not only the treating physicians and plastic surgeons, but also academic experts in immunology, epidemiology, rheumatology, toxicology, polymer chemistry, neurology, oncology, and minerology. While these are hardly typical cases, they do reflect the increasing presence of biomedical scientists and health care professionals as experts in complex litigation. It is safe to assume that as medical science and technology gain importance in our lives, there will be a corresponding increase in litigation in these areas. In the American system of adversarial justice, litigants are guaranteed representation by advocates whose loyalty is to the party who hired them. This loyalty, however, is problematic when it comes not only from the party's attorney, but also from the scientific expert hired by counsel. Once involved in the legal process, even the best scientists on occasion adopt not only the zeal but also the adversarial posture more appropriate to counsel, not only rendering objective reasoning difficult, but also creating a negative perception of scientists in the courtroom. If some of the most respected scientists, aware of this perception, become unwilling to serve as an expert retained by a party, the judiciary will be deprived of the very people best able to inform a judge or jury about the scientific issues in dispute. Concerns about the quality of expert testimony are shared by many federal judges. In a 1998 survey of federal judges conducted by the Federal Judicial Center (FJC), the education and research arm of the federal judiciary, judges were asked about problems associated with experts. “Experts abandon objectivity and become advocates for the side that hired them” was the most frequently cited problem. Given the common ground between judges and scientists, can anything be done to enhance the quality of scientific expertise in the federal courts? While there is no magic cure for the disease, we at the American Association for the Advancement of Science (AAAS) believe that more frequent use of court-appointed experts will enable the courts to more satisfactorily resolve complex scientific, technical, and medical issues. Federal judges have long had the inherent authority to appoint their own advisors, and in 1975 Congress codified this provision when it revised the Federal Rules of Evidence. At that time it adopted Rule 706, which provides judges with the authority to appoint their own experts, even without the consent of the parties. A 1993 FJC study demonstrated that 87% of judges surveyed believed that appointment of court experts would be useful on some occasions and showed that those judges who had appointed experts were uniformly pleased with the outcomes. Nevertheless, only 20% of the judges had appointed an expert even once. Why the disconnect? Survey results revealed that one reason for this disparity is that judges wishing to appoint experts lack a procedure for locating scientists who are both independent and knowledgeable. Because there are no institutional linkages between the judicial and scientific communities, judges making appointments had to rely on their own personal or professional relationships. Given that judges generally have little scientific background and are usually seeking appointments because of their concern over the complex, technical nature of an issue, these ad hoc methods are often not satisfactory. Indeed, judges responded favorably to the notion that it would be useful if scientific societies would assist the court in identifying suitable individuals. This idea is consonant with the third edition of the FJC's Manual for Complex Litigation's call for “professional organizations and academic groups” to assist the courts by providing “qualified, willing, and available persons.” More than a decade ago, the AAAS began to study ways in which it might help courts meet the challenge of addressing the complex scientific, medical, and technical issues they faced. With the advice of federal district and administrative law judges, lawyers for the plaintiffs and defense bars, as well as from academia, the federal government, and members of the scientific community, the AAAS designed a demonstration, or pilot, project that would establish the Association as a link between the federal courts and the scientific community. Given the Association's stature and a membership that is drawn from all fields of science and technology, we think that judges can turn to us with confidence on those occasions when they believe that the traditional method of presenting scientific evidence would not yield information that is clear, accurate, or complete. Stephen Breyer, Associate Justice of the United States Supreme Court, also cited the AAAS as a good source for judges to turn to in his concurring opinion in the 1997 case, General Electric Co. v. Joiner. Later, in a 1998 speech at the AAAS Annual Meeting and in an article in Science, he specifically endorsed this project, saying, “the AAAS has offered their help. We in the legal community should accept that offer … The result, in my view, will further not only the interests of truth but also those of justice.” Accordingly, the AAAS has established Court Appointed Scientific Experts, or CASE, to respond to requests from federal judges wishing to appoint an expert responsible solely to the court, not to the parties to the litigation. Experts will be provided for use in a variety of roles: educating the judge or jury on a difficult technical issue, commenting on the testimony of parties' experts, assisting the judge in a ruling on the admissibility of proffered evidence, or testifying at trial. In seeking “independent experts,” CASE attempts to provide judges with individuals disinterested in the outcome of the litigation at issue. In reality, very few scientists are completely neutral regarding adherence to one scientific theory over another. The experts' overriding objective, therefore, is not to approach the scientific issues in the case without opinion, but to educate the judge and/or jury on the issues while being independent of the case's outcome. CASE staff will not compile a roster of scientists. Rather, we will identify experts on a case-by-case basis, tailoring our search to the specific needs of the litigation at hand. To assist in our search, we have established working relationships with several professional societies and educational organizations, including the Association of American Medical Colleges and the National Academy of Sciences complex. Additionally, we have appointed a distinguished Recruitment and Screening Panel, consisting of approximately 30 individuals from a variety of scientific and technical disciplines. In looking for appropriate individuals to recommend to the court we will ask three questions: Are the persons truly knowledgeable in the area of concern to the judge? Are they well regarded among their colleagues and do they have a reputation for reliability? And, importantly, are they able to communicate technical subject matter to a lay audience? Unlike those scientists who earn most, if not all, of their incomes by serving as experts for parties to litigation, many of the scientists we will appoint are unlikely to have had extensive courtroom experience, if any. For that reason, we have prepared educational material to assist CASE-recommended experts in understanding aspects of the civil litigation process, such as discovery and cross-examination, with which they may not be familiar. An important aspect of Court Appointed Scientific Experts is the evaluation that will be conducted by the FJC. Following the evaluation, a report will be released to the public. This report may form the basis for future decisions on how best to assist federal judges with complex scientific cases on a permanent basis. We believe that through CASE, the courts will be better able to resolve complex scientific or technical disputes in a principled and reasoned manner. Just as importantly, CASE also provides scientists and health care professionals with the opportunity to render a valuable public service while maintaining the professional objectivity that is an important aspect of scientific integrity.