The Overlapping Magisteria of Law and Science: When Litigation and Science Collide

• Publication year: 2021

85 Nebraska L. Rev. 643. The Overlapping Magisteria of Law and Science: When Litigation and Science Collide

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William G. Childs(fn*)

The Overlapping Magisteria of Law and Science: When Litigation and Science Collide

TABLE OF CONTENTS

I. From Frye to Daubert, Kumho Tire, and Beyond:
A Focus on Methods, Not Qualifications ............... 649 R
II. The Realities of Peer Review .......................... 654 R
III. The Rationality of Litigants and Experts .............. 659 R
A. Peering Behind the Peer-Review Curtain: Taking
Discovery ......................................... 660 R
B. You Want Peer Review? We'll Get Peer Review:
Litigation-Driven Scholarship ...................... 665 R
IV. How Science and Law Can Strengthen Each Other .... 668 R
A. Why Courts Should Not Exclude All Litigation-
Driven Scholarship ................................ 669 R

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B. Why Courts Should Allow Some Discovery into Peer
Review ............................................ 672 R
1. The Possibility of Subpoenas and Depositions
Helps Counter Bad Litigation-Driven
Scholarship .................................... 672 R
2. The Possibility of Subpoenas and Depositions
Provides Incentives to Do the Research and the
Peer Review Correctly ......................... 674 R
3. Discovery into the Peer-Review Process Opens
the Black Box of Peer Review and Educates the
Courts ......................................... 675 R
V. Proposals for Mitigating Potential Harm ............... 676 R
VI. Conclusion ............................................ 680 R

"Science" plays a central role in litigation today. Civil litigants spend hours briefing and arguing the value of expert testimony. Studies performed years previously are taken apart and evaluated in detail. Criminal defendants are convicted or exonerated based on DNA evidence. And all of the evidence comes in through expert testimony, from witnesses who seek to explain the scientific issues to a lay jury, often in the form of opinion testimony.(fn1) This testimony can, and often does, dictate the outcome of cases.

Courts wrestle with the admissibility and use of scientific evidence every day, and have developed an evolving set of standards to apply to those decisions. They are seeking, at least in part, to have legal factfinders consider only evidence that has already been deemed reliable in science--in other words, to have law follow science. The most recent iteration of the standards adopted to further those goals started, of course, with Daubert v. Merrill Dow Pharmaceuticals.(fn2) With that case and throughout the cases that followed, courts have sought to use science's paradigms of "reliability" as the standards of admissibility. If the scientific community has approved of the methods or conclusions (through peer-reviewed publication and other criteria), the courts conclude that those methods or conclusions should be admitted. The

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courts (and many commentators) believe that making legal standards track the perceived scientific standards improves the quality of fact-finding--that scientists' standards of reliability should be courts' standards of reliability.

In making this Daubert shift--more closely linking admissibility to scientific standards of reliability--the courts paid little attention, if any, to the potential impact making such a shift could have on science itself, or how it could affect the nature and quality of the scientific evidence being presented to fact-finders, usually a jury. In this Article, the first in a broader project in law and science, I explore two unexpected consequences of joining science and law at the hip, and consider whether these consequences represent reciprocal contamination, or instead cross-fertilization, of law and science.(fn3)

In the first unexpected consequence, the reliance (perhaps overreliance) on peer-reviewed publication in admissibility decisionmaking has resulted in aggressive litigation discovery into the peer-review process. Documents from the peer-review process have been subpoenaed and the participants in that process have been deposed, all with an eye to undermining the perceived value of the peer-review process, and, possibly, to purposefully deterring the future involvement in that very process by researchers and reviewers. This discovery was described in one instance as "`harassment to silence independent research' and an effort to create `a chilling effect on folks who tell the truth.' "(fn4) Under this view, letting lawyers into the citadel of science in this way could weaken science's ability to assist the legal fact-finding process and to assist society more generally, by creating disincentives for scholars to participate in the peer-review process or to be fully honest in that process. These disincentives may be created whether or not the litigants intend them.

In the second unexpected consequence, the focus on following science's paradigms (again most notably peer review) has resulted in what can be called "litigation-driven scholarship." Some expert witnesses have performed litigation-related research and essentially submitted their expert reports to peer-reviewed journals in what appears to be, at least in part, an attempt to bolster the likelihood of their testimony being admitted.(fn5) These efforts may cheapen the value of

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the paradigmatic reliability indicators in science and decrease the quality of scholarship presented to fact-finders (and to consumers of scholarship), reversing one core idea of the shift--that law should follow science, rather than the reverse. Many observers find such scholarship unseemly, if not outright untrustworthy, due to the obvious potential for bias.(fn6)

This Article explores the conflicts I conclude are inevitable in efforts to join law and science together. The two disciplines' magisteria(fn7) overlap, but not precisely, and that lack of fit creates problems and opportunities for both. I conclude that it is far from self-evident that the "contamination" of science by law (e.g., lawyers meddling in peer review) or of law by science (e.g., litigation-driven scholarship showing up in litigation) necessarily weakens either science or law. Instead, they may serve as a check on each other and on other potential problems.

In fact, the reciprocal line-crossing--of litigators into the peer-re-view process, and of litigation experts into the peer-reviewed scholar-ship--may make both law and science stronger and provide a better understanding of both. A complete understanding and exploration of the peer-review process by litigants and the court would improve both law and science. Thus, rather than contamination, such interactions should be considered as cross-fertilization, strengthening both. The complex interplay between these overlapping and competing magisteria may cause discomfort and (hopefully transient) confusion, but it should be cautiously welcomed, not avoided.

I proceed in four parts. First, in Part I, I provide a brief review of the evolution of legal standards for the admissibility of what is termed "scientific evidence," including Frye and Daubert and their progeny. I also explore the stated and unstated goals of the shift from Frye's fo

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cus on the "general acceptance" of the expert's approach to Daubert's emphasis on the reliability and relevancy of the expert's methodology.

Second, I give a (necessarily limited) overview of certain modern scientific paradigms of reliability. In Part II, I explore the realities of peer review(fn8) and of other institutions in science that are relied upon in evidentiary determinations. Among other things, I explore the history of peer review in science and establish that only relatively recently did peer review become a central aspect of general scientific scholarship. Further, I conclude that the factors judges and litigators see as binary--for example, either the method is peer reviewed or it is not--are not nearly so simple to resolve. That Part, among other things, includes examples of exactly what peer reviewers are asked to do from various journals, duties that can vary significantly. Put more bluntly, there is peer review, and then there is peer review--and even careful and thorough peer review can miss fraud, as recent high-pro-file cases have shown. This conclusion will be important in evaluating whether the unexpected consequences of Daubert are problematic.

Third, in Part III, I describe two phenomena (summarized above) that are, to my knowledge, relatively new, and are almost certainly the direct result of courts' emphasis on peer review as a criterion for the admission of expert testimony. The first phenomenon is discovery in litigation into the peer-review process--document and testimonial discovery exploring and challenging the peer-review process with the purpose of undermining the admissibility of testimony relying on the reviewed publication. The prospect of being put through such discovery may create incentives for scientists to refuse to participate in such a process; it may weaken the honesty of the comments provided in that process; it may be used to intimidate other potential experts; and it may impinge upon academic freedom. At the same time, it may provide valuable and relevant evidence of the reliability of the methods and conclusions in the publication and educate the courts about the nature of peer review.

The second phenomenon discussed in Part III is related: scholarship that appears to be produced (and submitted to peer-reviewed

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publications), at least in part, to increase the odds of the authors' opinions being admitted in litigation. This bootstrapping may result in published work that would not otherwise be published--and perhaps should not, under some standards, be published. And indeed, some research motivated by litigation may never be performed at all in the...