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-21.- • ERALD 9, 1993 NATIQ L NEWS 'FA TNE M P.PAt HMARCH sRp - ?_i992 Expert testi any or ~u ~ science? Supreme Court to rule if judges can bar ® eat scientific theories ' 9, AAStora t;paT£tN Merud Wauhsngton Buteau WASHINGTON - The trauma of auto accidents can cause cancer, one expert testi- fied. Hazardous chemicals can cause a type of AIDS, said another. Still otlaer experts blamed spcrmicidal jelly fi;r some t;isth dePects. That's "iunk science," critics cry. America's courtrooms, they complain, are teeming with "hired guns" who offer expert opinions on just about anything for a hefty fee. Now the critics want the • Supreme Court to givejudges the power to clear all federal court- rooms of scientific testimony thatt lies outside the mainstream. • But others fear that if judges become the gaflekeepers of sci- ence, valid theories may be banned from the whness stand. Since many of today's accepted scientific opinions once were considered cccentric,they argue, juries should hear the testimony and then decide its worth. The Supreme Court aild tackle this contlict in a case that carries huge stakes for law, science, bui- neas and ordinary people. The justices, who wi@l hear arguments Tuesday and rule 'sn. early summer, must decide whether,7ndges can barna expert witness whose research methods haven't been generally accepted by scientists. Po.r reviaw a sBt When is an expert's analysis generally accepted? When it is subjected to review by paen and published in a professionaljour- nal, many courts say. The peer review process has been praised as a method of weeding out false ideas, but criticized as a means of stitling innovation. Tha impact of the Supreme Conrt decision will be feit in vare- ous types of personal injury law- suits - especially the thousands filed on behalf of people trying to link their injuries or iElnesses to toxic substances, defeotive prod- ~ acts or medical cazelessncss. " It will have an impact in just about any case in which unoctho- dox scientific opinflon is cCiticala " said Harold P. Green, who teaahoa iaw, science and technoi- ogy at the George Washington Univessity Law Sohool. BMh drlwte cass . 1 he case before the catart arose when two San Diego area women, Joyce Daubert and Anita Lk`s°ouug,ga ve birth to babies with stunted arms and degs. The mothers blamed Bendecxin, the drug they had taken for morning sickness. Their lawyers f iled suit against the drug manufacturer, Merre9l Dow Pharmaceuticals, and pre- sented a judge with the opinions of eight experts who believed that Bendectin had caused the birth defcczs. By pooling the data from ear- lier studies, and by applying less stringent standards of'stat'astical certainty, the experts reached vastly dsfferent conclusions than those of the oripinal researchers. But federal gudpes dismissed the case. The opinions of the eight experts were'"unpublished, not subjected to the usual peer review process and generated solely for use in litigation," ruled Judge Alex Kozinskid of the fed- eral appeals court in California. "This case does not involve junk science," said Barry Naoe, the parents' lawyer. "Our experts , are highly credentialed aczen- tists, some of whom hold impor- tantgoverAmentaH pcasts... They didd not arrive at their opinions by reading tea leaves." Scientific and med'acat experts ase essential to personal injury lawsuits. The defense also needs experts to rebut such claims. '°We are facsni; the problem cf bought scientists - people who are not working for the good'of mankind but for their own Bnan- cial good," said Kenneth Starr, who was President George Bnsh's sCfl9citor generaa. Martin Connor of the busi- ness-backed American Tort Reform Association, says profes- sional experts have "tor,ally, dis- torted our justtce system." "It's not just a plaintitTs' prob- lem, either," he said. "°Experts aee misused on both sides," E.xperts themselves oppose screening by judges. "°('na not in favor of junk sci- encq but set rules preclude any- thing ncw," said Harold s.eligeq who frequently testifies as a chemistry expert. "If it's really junk sc'sence, the other side is free to prove it by cross-examining and rebutnng the testimony with tts own experts." Some of .4merica's most pow- erfut forces - major "corpota- tions, scientific organizations, medical societies, gosernments and trial lawyers among them - are trying to persuade the supreme fauet to rule their way. "Experts who ... do nothing moee with seemingly remark.able ` discoveries than submit them to judges and juries are not acting in a manner characteristic of scien- tists," declared the American Association for the Advance- ment of Sciences and the National Academy of Sciences. But many scientists deplore a publ'esh-or-perish rule. While peer-reviewed journals regularly publish studies of significance, they also have published theoraes that later were discredited - including some research that went on to win Nobel Priaes. COMF n5;y5}