Scientific research is frequently at the heart of legal and regulatory disputes, and skilled advocates on both sides utilize fragments of scientific evidence to convince judges, juries, and regulators that a particular substance is either perfectly safe or wildly hazardous. Legal and regulatory decisions that come out of these disputes affect everything from the food we eat, the prescriptions we take, the household chemicals we use, to the health of our economy and the fairness of our judicial system.
Is there a way to improve the chances that these decisions are based on the preponderance of sound scientific evidence rather than a misinterpreted sliver of a single study that is woven into a compelling emotional narrative?
That’s one of the questions we asked a cross-section of Americans’ last fall. Two-thirds of respondents felt judges and jury members are not qualified to make decisions about whether a particular claim is scientifically justifiable due to their lack of expertise in the scientific arena.
That view was echoed in a recent podcast featuring Nathan Schachtman, an attorney who has been engaged by both plaintiffs and defendants in toxic tort lawsuits. According to Schachtman, most trial judges are not qualified to make scientific decisions simply because they lack the educational bona fides to do so—and, the overwhelming percentage of jurors are even less qualified.
“Jurors are very erratic players in the process—as are judges—and jurors have the advantage of getting to make their decisions without having to explain why,” Schachtman explains.
Respondents to our survey also understood the fundamental unfairness of how scientific evidence is utilized in courtrooms. Seventy-nine percent of respondents believe independent scientists appointed by a judge are the most qualified to determine the validity of claims made on the basis of established science as it pertains to potential awards in mass tort cases.
While the logic of this may be compelling, the approach is periodically dismissed by judges as a usurpation of jurors’ responsibility to determine liability and their own control over the introduction of evidence. In most states, the admissibility of evidence and expert testimony in court cases within the United States is governed by the Daubert Standard, a precedent that effectively makes the presiding judge a gatekeeper in determining what evidence a jury is permitted to consider.
One concept that may improve the system without undermining a judge’s authority or a jury’s responsibility would be utilizing independent scientific panels appointed by a judge and agreed to by attorneys on both sides to assist the judge determine what scientific evidence is admissible under Daubert. This would create a more level playing field for all stakeholders in a legal dispute by reducing the opportunity for either side to cherry pick scientific evidence from studies that may not be fully verified. The same principle could also be applied to regulatory agencies and would go a long way toward reducing the personal bias that a single regulator or agency may bring to the decision-making process.
In our latest report, Independent Scientific Panels and Mass Tort Litigation, the Center takes a look at the historical use of independent scientific panels in mass tort cases. Our analysis demonstrates the potential value that such panels can bring to legal and regulatory decision-making without compromising the important role of judges, juries, and regulators. While not perfect—no system or reform ever is—the use of independent scientific experts can reduce bias, increase objectivity, and address the primary concern of most Americans: the need to restore fairness for all parties to our judicial system.