Judicial Distortion of Science
By Nachman Brautbar, M.D.
In a recent editorial, Professor Carl E. Cranor examined the issue of judicial distortion of science and handicapping of justice in U.S. law. This editorial, published in a well-respected scientific journal, essentially is critical of the interpretation by some courts of the Daubert, Joiner and Kumho Tire decisions (Daubert trilogy). It provides a detailed analysis of decisions in toxic torts, causation and experts admissibility, and offers scientific and legal remedies.
Professor Cranor concludes that some U.S. trial judges and appellate courts deny meritorious victims the possibility of a day in court and the probability of justice. To quote, “[m]oreover, courts demanding good scientific evidence in support of expert testimony so late in the sequence of events creates counterproductive incentives for companies to refrain from testing their products, thus multiplying mistakes and harm [emphasis added].” Indeed, the Daubert trilogy intents was, ”[w]hen responsible, respectable experts disagree, this is precisely the kind of issue juries, not judges, should decide.”
Imagine yourself that a judge who is trained in law, makes decisions on expert opinion in medicine, yet this judge has never gone to medical school and never engaged in the practice of medicine. As previous writings in this field suggested, the judge (with equal or less scientific practice and training compared to a jury of twelve) essentially determines that one person’s decision is better than twelve jurors’. As some Supreme Courts in the nation suggested, the Daubert trilogy takes away the constitutional right for a fair trial by a jury of twelve peers.
In my opinion and in agreement with Professor Cranor, an incentive exists for manufacturers of chemical products not to test their products so that when faced in court they can argue “there are no studies.”
 Cranor, C.F. Judicial distortion of science and the handicapping of justice in US law. Eur J Oncol. 2007 Dec;12(4):229-34
 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 1993
 General Elec. Co. v. Joiner, 522 U.S. 136, 1997
 Kumho Tire Co. v. Carmichael, 256 U.S. 137, 1999
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