BINGHAM ET AL. RESPOND

Abstract

Judging by his simplified summary of what he believes to be the aims of the Daubert v Merrell Dow Pharmaceuticals, Inc, decision, Gori appears to have misunderstood much of what was presented in the July supplement to the Journal. Scientific reasoning is no more amenable to a mechanical approach than is legal reasoning. Daubert imposes unreachable objectives on judges: to separate science from nonscience and good science from bad science. Many of these concerns, which were detailed in the supplement,1–7 went unaddressed by Gori. Legal disputes about public health and medical science often involve research at the frontiers of our knowledge, and scientists frequently disagree about what conclusions to draw from this research. These disagreements are part of “normal” science. Is a judge capable of settling these disagreements? Is a judge any more capable than a jury of citizens? There is virtually no evidence that the answer to these questions is yes, and there is substantial evidence to the contrary.8–10 Equally troubling to us is the role of Daubert in encouraging research designed by polluters and manufacturers of dangerous products to create the impression of scientific dispute.11 Meeting even a pro forma challenge requires extensive resources, precluding some injured individuals from even entering the justice system.12 Now the scientific bases for regulations protecting the public’s health and environment are increasingly being subjected to Daubert-like challenges, many of which are frivolous.9,13,14 Most public health scientists will probably agree with the following points: When science is used in the law, science should protect public health and serve justice. Scientists serving as experts have helped to do this, and the justice system should be structured to encourage the use of scientific experts. Lawsuits are an important mechanism for holding polluters and manufacturers of harmful substances responsible for their actions and are incentives for them to reduce the public’s exposure. Efforts should be made to eliminate factors that tip the scales of justice against public health and the victims of harmful substances. The challenge facing the justice system, writes Sheila Jasanoff, “is not how judges can best do justice to science; the more critical concern is how courts can better render justice under conditions of endemic uncertainty and ignorance.”1(pS49)