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Keep good science in toxic tort cases; plaintiff lawyers can use a new section of the Restatement (Third) of Torts to help judges widen the gates to causation evidence.

Article Excerpt
Your auto mechanic does not perform your emergency appendectomy, your family doctor doesn't serve your plumbing needs, and your lawyer does not draw up the blueprints to remodel your home. In an ideal world, judges would not determine the validity of scientists' opinions about science. However, as plaintiffs in civil litigation have noticed, we are not living in an ideal world.

Since the Supreme Court's ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc., (1) plaintiffs injured by toxic exposures have forced the unfortunate reality that judges in many jurisdictions have the power to second-guess the scientific judgment of the plaintiff's expert witnesses. Although Daubert standards do not apply in every jurisdiction, if you practice in toxic torts, you need to know how to meet them. How can plaintiff lawyers best deal with the challenge?

Litigators with substantial experience in the Daubert trenches stress that the first step is preparation. It starts with contemplating Daubert hurdles in determining whether to accept the case, continues with considering Daubert when you choose your experts, and ends only after a final judicial determination that your expert's opinion will be admitted in evidence.

You must learn the science at least as well as the scientists themselves and explain scientific concepts in plain English to the court. And, of course, you must be thoroughly familiar with the legal doctrines and precedents that guide the court's "gatekeeping" function with respect to expert testimony.

If you have managed to do all this--and doing so properly requires outrageous amounts of expertise, time, and money--you have done probably all that you can do to protect your experts from Daubert challenges. The scary truth is that courts have been routinely excluding expert testimony. The Daubert framework--originally intended merely to preclude jurors' consideration of "junk science"--is now often used to exclude well-reasoned scientific opinions by highly regarded scientists with substantial bodies of published data to support their views.

The defense bar has convinced many federal and state court judges that determining causation in a toxic-tort case is a matter of applying objective scientific formulas, which, when properly employed by qualified experts, lead to a single "scientific" outcome. But reasonable, qualified scientists disagree with one another as frequently as reasonable lawyers do--that is, all the time.

Nevertheless, trial lawyers should not be surprised that a misguided perception of science has taken firm root in the...

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