Federal court cases involving uncertain science or disputed causation demand a "different approach that allocates the burden of uncertainty more fairly and focusses attention on the conduct of the parties and what they knew or should have known at the time," two attorneys contend in analyzing a controversial case decided last June by the U.S. Supreme Court.

Authors Joan E. Bertin of the School of Public Health at Columbia University and Mary S. Henifin who practices law in New Jersey and is a faculty member at Robert Wood Johnson Medical School outline that "different approach" in their article "Scientists Talk to Judges: Reflections on Daubert vs. Merrell Dow" which appears in the current issue of New Solutions, a quarterly journal of environmental and occupational health policy.

Daubert vs. Merrell Dow involved a suit against a pharmaceutical company whose drug, Bedectin, allegedly caused birth defects. The authors note that as roughly 2,000 Bendectin cases wound through the courts, "different courts applied various, sometimes contradictory, analyses to judge the admissibility and sufficiency of the scientific expert opinion offered in support of plaintiffs' claims of causation." The question appealed to the high court concerned the admissibility of scientific evidence in the case. The U.S. Court of Appeals for the Ninth Circuit had held that admissible fact or opinion must reflect consensus among scientists and must have been published in a peer- reviewed journal. The court explicitly rejected consideration of experimental data.

The issues before the high court touched off a storm of briefs from the scientific community, including submissions by the American Society of Law, Medicine and Ethics; the American Association for the Advancement of Science and the National Academy of Science; the American Medical Association; the Carnegie Commission on Science, Technology and Government; various prestigious scientific journals; as well as individual scientists.

"The purposes of law and litigation are different from those of science," Bertin and Henifin observe. "The goal is less often to discover pure and objective truth, but instead is to resolve a dispute that cannot be deferred until the 'answer' has been discovered. It is almost inevitably true that the most difficult and contentious cases are those in which the information available at the time is not sufficient to permit an easy answer.

"Among the most perplexing but important questions for law and policy," they argue, "is who should bear the burden of this uncertain state of knowledge."

Their proposal for an alternative to current practice would ask certain questions: "First, have defendants acted without due regard for health-related consequences? If so, can plaintiff's injury be related by a biologically plausible theory to defendant's acts or omissions? If the answer to these two questions is yes, then the burden as to causation should shift to the defendant, that is, the defendant should bear the burden of uncertainty as to causation, and would be liable for the injuries its product might have caused unless it could prove that it is more probable than not that its product did not cause plaintiff's injury."

Under current law, Bertin and Henifin explain, it is always the plaintiff who "bears the burden of scientific uncertainty on causation ... even in the most meritorious case, where all other facts argue for recovery ... " In its decision in Daubert vs. Merrell Dow, the Justices reversed the decision of the trial court and sent the case back "for a new determination on the issue ofadmissibility." They stressed a requirement for a standard of "evidentiary reliability" which must be focussed on scientific "principles and methology, not on the conclusions that they generate."

Another article featured in this issue of New Solutions focusses on the reception given to new scientific findings; a third addresses the health effects of the 1984 accident at the Union Carbide plant in Bhopal, India. The scientific findings article, by Swedish scientists Lennart Hardell, Mikael Eriksson, and Olav Axelson, concerns misinterpretation of studies on the carcinogenic effects of phenoxyacetic acids and chlorophenols. The Bhopal article, a literature survey, was written by Ramana Dhara, who is a physician and member of the International Medical Commission of Bhopal.

FOR MORE INFORMATION, contact Mary Lee Dunn or Susan Butler at (508) 934-3263. Copies of New Solutions are available on request.

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