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Epi Wit & Wisdom Articles
Epi and the Law
Greater Use of Expert Panels
Proposed as Additional Means of Presenting Epidemiologic Evidence to
the Courts
A “very disagreeable activity”
is how Moyses Szklo describes the attitude of epidemiologists towards
providing testimony on epidemiologic findings in court, according to a
recent Science article (3/31/89). Szklo is not alone in his feelings.
According to Yale law professor E. Donald Elliott, a central issue at
a recent workshop held to discuss procedures for improving the
handling of expert testimony in court was the fact that scientists “do
not want to participate.”
Different Goals
What’s the problem with
testifying in court? In a nutshell, epidemiologists are uncomfortable
with the adversarial nature of many legal proceedings in which experts
with different views are pitted against one another. One lawyer
interviewed by the Epi Monitor described the presentation of
epidemiologic findings in court as “almost farcical.” What
epidemiologists fail to understand, according to this source, is that
walking out of court is not like walking out of a seminar--there are
only winners and losers. Unfortunately, he added, experts are not as
vocal, not as willing to understand that decisions have to be made. In
other words, academics are more willing to wait. According to this
view, the purpose of court proceedings in tort cases is not to get an
understanding of truth, to continue searching, but rather to have an
orderly resolution of disputes. For example, were epidemiologists
satisfied with the court decision on Agent Orange? The issue of
causality has remained open, but the conflict was resolved, and the
court could move on to the next dispute. Epidemiologists want to
enhance knowledge while the courts want to peacefully settle
conflicts.
A Proposal
A proposal discussed at the
recent workshop at Georgetown University was to make greater use of
expert panels in presenting evidence to judges and juries. The idea
behind this proposal is not to change the adver- sarial nature of the
judicial process, but rather to give the courts more opportunity to
hear non- partisan views by groups of experts called together by the
court itself rather than by the plaintiffs or the defendants. At
present, the courts have little means at their disposal for evaluating
whether the experts called to testify are “outliers” or whether they
represent mainstream views. Lawyers often seek to have the extreme
views of their expert presented as consensus views.
Galileo Problem
This proposal does not
necessarily presume that the “truth” lies with the consensus view
(“the Galileo problem”), but it does suggest that the courts should
have an idea of where the expert views they are hearing fit into the
overall views of the scientific community on the issue under
consideration. After all, outliers are not always eventually proved
right--extreme views are sometimes wrong.
If experts can provide their
testimony to the court under non-adversarial conditions, the
presumption is that more experts would be willing to help the court by
providing this testimony on their views.
How to Implement?
One problem facing the courts in
implementing this expert panel approach is how to identify the
non-partisan experts. One suggestion being discussed is for the
professional associations of experts to provide lists of names of
persons who qualify and would be willing to testify. In this way the
courts would have one easy to reach and sanctioned source of
information to call upon. For example, Moyses Szklo, as current
president of SER, has been approached about the willingness of SER to
serve in this capacity. Its an issue which epidemiologists will have
to consider because as one lawyer told the Epi Monitor “the public
policy process is likely to be one of the largest consumers of
epidemiologic expertise in the decades ahead.”
Recommendations
The workshop at Georgetown was
organized by E. Donald Elliott, Paul Rothstein (Georgetown), and Leon
Gordis (Johns Hopkins). Several recommendations for improving the
handling of expert testimony were developed at the workshop and these
will likely be summarized in a manuscript to be prepared for a law
journal. In addition, representatives from various organizations with
an interest in introducing modifications to the current legal
processes were in attendance at the meeting, and the workshop
recommendations will undoubtedly be taken into consideration by these
groups. For example, the American Bar Association has a commission on
mass torts which already has a proposal for the use of panels, and the
Carnegie Commission has a Federal Courts Study Committee which may
take up the recommendations.
Negative Data
One interesting difference in
the perspective of epidemiologists and legal professionals is the
attitude towards negative findings. According to Elliott, epidemiology
is set up to look for positive associations. However, he added, what
the legal process wants and needs is to know when sufficient evidence
has accumulated to be able to conclude that no association exists.
When is enough data enough, asked Elliott. There are no criteria in
epidemiology for making this determination, yet some situations are
clearly more data rich than data poor. It would be nice to know from
epidemiologists when the data base on a particular question has
matured sufficiently to be able to reach a negative conclusion with
confidence. According to Elliott, the courts don’t need the same
degree of certainty about causality just to move a million dollars
around.
Published April 1989 v
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