Reference Manual on Scientific Evidence, 3d ed.

• Author: Rogers, James F.
• Position: Book review

THE FIRST EDITION of the REFERENCE MANUAL ON SCIENTIFIC EVIDENCE was published in 1994 shortly after the United States Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc. (1) The REFERENCE MANUAL ON SCIENTIFIC EWDENCE (Second Edition) ("RMSE Second") was published in 2000. The REFERENCE MANUAL ON SCIENTIFIC EVIDENCE (Third Edition) ("RMSE Third") was published in September 2011.

This article does three things. First, it discusses four new chapters--forensic science, exposure science, neuroscience, and mental health--that were added to RMSE Third. Second, it identifies the cases that cited RMSE Third as of May 20, 2013. Third, it discusses some of the changes to RMSE Third that favor a weakening of the Daubert standard for the admissibility of expert testimony.

1. New Chapters in RMSE Third

   RMSE Third adds four new chapters from its predecessor edition: forensic science, exposure science, neuroscience, and mental health.

   1. Forensic Science

      The chapter on forensic identification expertise analyzes fingerprint, handwriting, firearms identification, bite mark, DNA (2) and microscopic hair evidence, as well as recurrent issues that arise with these types of evidence. It discusses the admissibility of each of these types of evidence and the ways in which expert testimony can be presented in court. The chapter also discusses limitations on testimony, restrictions in final argument, and procedural issues regarding these areas.

   2. Exposure Science

      Exposure science, a subject often at issue in toxic tort and product liability cases, is explored in the Third Edition. The Manual addresses four major situations in which exposure science can be applied: consumer products, contaminants in the environment, chemicals in the workplace, and disease causation. The chapter reviews the goals of exposure assessment and includes determining who has been, or could become, exposed to a specific chemical from one or more specific source, by what routes people are exposed, and the magnitude and duration of exposure to a chemical without danger. The chapter discusses potential areas of testimony from experts in cases where exposure science may be helpful, such as the source of the exposure, the time it occurred, and the duration and dose of the exposure.

   3. Neuroscience

      The new edition also introduces the Reference Guide to neuroscience. The chapter gives a brief overview of the structure and function of the brain, describes tools used by neuroscientists to understand it, and discusses issues to consider when interpreting these findings. The Guide explains ways that neuroimaging can be presented as evidence. In addition, the chapter discusses how EEG and MEG measure electrical activity in the brain and can show response to certain stimuli. The chapter reviews issues regarding interpretation of study results, including an inability to replicate results, problems in the experimental design, the lack of number and diversity of subjects, problems applying group averages to individuals, and technical accuracy of imaging results. The chapter discusses how Federal Rules 401 and 402 (relevance), Rule 403 (prejudice v. probative value), Rule 702 (expert testimony), and rules about character evidence may impact the admissibility of neuroscience evidence, along with Constitutional issues under the Fourth and Fifth Amendments.

   4. Mental Health Evidence

      The final addition to the Third Edition is the chapter on mental health evidence. This chapter discusses the legal situations in which mental health issues can arise (both criminal and civil), reviews the different types of mental health experts and their potential roles as expert witnesses, and explores major mental disorders from the Diagnostic and Statistical Manual (DSM) that may impact legal cases. The chapter discusses predictive assessments, such as those of violence risk or future functional impairment, and the treatment of mental disorders, including the short and long term effects of medication, psychological treatment, brain stimulation, and psychosurgery. The final portion of the chapter discusses mental health evidence and ways to properly evaluate mental health experts and their testimony, including some limitations on admissibility of this type of evidence.

2. Cases Citing RMSE Third

   As of May 20, 2013, thirty courts have cited to RMSE Third. Most recently, the United States Supreme Court in Comcast Corp. v. Behrend (3) cited RMSE Third on the topic of the proper process of conducting damages studies. The Supreme Court relied upon the definition provided in the RMSE Third and concluded that neither the trial court nor the appellate court appropriately accounted for this process. Other notable cases include the following:

   In American Petroleum Institute v. Environmental Protection Agency, the court evaluated the claim that the EPA failed to appropriately consider a study which found no increase in health effects on the basis of an increase in ambient N[O.sub.2]. (4) Based on the RMSE Third, the court concluded that the EPA acted appropriately because the study failed to establish a "no dose-response relationship." The court noted that "the authors could not tell whether there is no such relationship or their test merely lacked sufficient power to detect the relationship." (5)

   In A TA Airlines v. Federal Express, (6) the court reversed the U.S. District Court for the Southern District of Indiana's judgment upon jury verdict of approximately $66 million in a breach of contract action. The court cited to the Reference Manual's nontechnical guide on multiple regression analysis, and stated that had the District Court judge read the guide he would have realized that the regression analysis of the Plaintiff's expert was "fatally flawed." (7) The court went on to state "We have gone on at such length about the deficiencies of the regression analysis in order to remind district judges that, painful as it may be, it is their responsibility to screen expert testimony, however technical; we have suggested aids to the discharge of that responsibility." (8) The Reference Manual is one of the aids that the Court suggested.

   In Berg v. Johnson & Johnson, the court cited the RMSE Third liberally in its determination whether plaintiff's expert used an appropriate methodology. (9) Despite the fact that plaintiff's expert's specific findings were not peer-reviewed or tested, the court accepted the expert's methodology because it apparently met the standards set forth in RMSE Third. For example, plaintiff's expert met the RMSE Third's standard for biological plausibility models, despite the fact that the experts models had not previously been proven. (10)

   In Betz v. Pneumo Abex, LLC, (11) the...