Updated Reference Manual on Scientific Evidence Released

Ever since the watershed decision of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), judges in federal court have sought guidance and a methodology for determining the admissibility of scientific evidence typically offered in court by expert witnesses.  After all, judges are experts on the law, and are not scientists.

In order to assist federal judges in ferreting out “junk science,” a treatise entitled the “Reference Manual on Scientific Evidence” was published several years ago in an initial and then 2^nd edition.  On September 28, 2011, a 1,034 page-third edition of this reference source was published, replacing the most recent edition that had been released eleven years ago, in 2000.

How does the new edition differ from the prior one?

The third edition has a special emphasis on two issues that had frequently confounded judges: causation and expert bias.  With regard to causation, judges are often at a disadvantage as compared to scientists.  Scientists have the luxury of delaying their opinion while they or others gather more data.  “Judges, on the other hand, must rule on causation based on existing information.”  Frequently the lack of existing data or science in the courtroom setting bodes well for the defendant, since the plaintiff has the burden of proof in a products case.

Regarding expert bias, “given the high stakes and adversarial nature of many courtroom proceedings, bias can have a major influence on evidence, testimony and decision-making.” Oftentimes we find that although experts for the opposition have opinions for purposes of making a claim in a specific lawsuit, they have not done independent, confirming and peer-reviewed research, or published anything of note in the field.  This can be used to level a strong attack based on bias, and can serve to seriously undermine their credibility.

The new manual includes new chapters on areas such as: neuroscience, mental health, and forensic science.  There are revised chapters on DNA identification, statistics, economic damages, epidemiology, toxicology, medical testimony and engineering.  The reference manual was prepared by the esteemed National Research Council, a collection of scientists and technical experts with unimpeachable qualifications. As was true with the prior editions, it will likely be a useful resource for both state and federal judges, not to mention lawyers who deal with experts and nettlesome issues involving scientific, complex or technical testimony.

Although Daubert is not controlling law in state courts in Iowa, the Iowa Supreme Court has held that its factors may be persuasive in an appropriate case.  See Ranes v. Adams Labs, Inc.,778 N.W.2d 677 (Iowa 2010)(decision to exclude expert’s causation testimony in toxic tort case affirmed on appeal; as a result, summary judgment for defendants affirmed). If you have an issue involving the evidentiary admissibility of scientific, technical or complex expert testimony, contact Product Liability Practice Group Chair Kevin Reynolds at Reynolds@whitfieldlaw.com for more information.