Historical Interviews
 

Last month we reported on the long awaited United States Supreme Court decision in the Bendectin case (Merrell Dow vs. Daubert) which found that “general acceptance” by the scientific community (the Frye rule) is not a precondition for the admissibility of scientific evidence in court. The lower courts had excluded evidence, including the results of a re-analysis of multiple epidemiologic studies of Bendectin by California epidemiologist Shanna Swan because the data had not been peer reviewed or published.

In place of the Frye rule, the Supreme Court has now made clear that judges must determine whether or not evidence is sufficiently relevant and reliable to be admitted into court. Without prescribing exactly how judges should make this determination, the Supreme Court offered guidelines which include but do not mandate consideration of peer review, publication, and general acceptance by the scientific community. The net effect may be to liberalize the conditions which must be met before evidence is allowed to be presented, but not to the extent that anything and everything, even “junk science,” is allowed. In making this determination, judges are to focus exclusively on a scientist’s methods and not on his or her conclusions.

The case has been described as a landmark decision. Because epidemiologic evidence figured so prominently in the Bendectin case over the years, the case is of greater than usual interest for epidemiologists. To help our readers better understand the significance of the decision and especially its potential impact on epidemiology and science over the coming years, the Epi Monitor interviewed a group of experts who participated in or were familiar with the case.

Included in our conversation was Kenneth Rothman the editor of Epidemiology and Professor of Public Health at Boston University who co-authored an amicus brief along with Noel Weiss, James Robins, Raymond Neutra, and Steven Stellman. Also participating were Susan Rose, a practicing California attorney with an interest in epidemiology and public health who has written for the Epi Monitor and authored the chapter on landmark legal decisions for EPISOURCE, Robert Morgan, an epidemiologist privately employed as a consultant with Environmental Health Strategies who has served as an expert witness on several occasions, and Shanna Swan, Chief of the Reproductive Epidemiology Section of the California Department of Health since 1981 and one of the experts whose re-analysis of previous epidemiologic studies of Bendectin was not allowed to be admitted as evidence for the plaintiff.

A Conversation About the Recent Supreme Court Decision

Epi Monitor: The Supreme Court decision has been referred to as a landmark decision. I hope we can elucidate for our readers why the decision is potentially very significant. We will explore its significance and potential impact on 1) the plaintiff and the company; 2) the judges and the legal system; and 3) epidemiology and epidemiologists.

Some have described the outcome as a victory for both sides. In the short term, the plaintiff may be seen as the winner because the plaintiff will have an opportunity to have the case retried. Maybe that’s a good point to start.

Swan: I honestly don’t know what impact this will have on the company and the plaintiff because this just puts us back to where we were before. I think it gives the plaintiff a chance now to be heard in this particular case, but I don’t think it’s going to make it any easier or harder to present the kind of evidence that I or other experts in the case might give.

Epi Monitor: I read a quote in Science from one of the attorneys for the company. He felt that the evidence that was excluded before would still not be admitted under this Supreme Court ruling. I wasn’t clear as to why he said that.

Swan: That was Charles Fried, who argued the defense opinion before the Supreme Court so that would be his position. I don’t think we really know until we see what the particular court in this case holds. In the past, on almost every other occasion when I was asked to testify about Bendectin, the court has held that the kind of evidence that I was presenting—which, by the way, is rebuttal evidence—was going to be permitted and was permitted. I don’t see why he would say this means that it would be not allowed.

Rose: I think if you look at the Supreme Court’s opinion, they gave you four criteria for how you can assess scientific evidence. Only one of which is whether or not the theory’s been subjected to peer review. The first criterion is whether or not the theory or technique has been tested or can be tested. The second one is whether or not it’s subjected to peer review. The third one is if there is any potential rate of error in the technique. And fourth was general acceptance, whether it is generally accepted by the community. So I think Dr. Swan is right. It’s just back to a fight on the basics. So what Mr. Fried was saying is that he will argue the peer review again.

Epi Monitor: He’s focusing on one of the four criteria—saying the evidence might not meet that one; therefore, it wouldn’t be allowed in.

Rose: But as to whether it’s been tested or if there is an error rate I really don’t think that applies. I think what he’s got to argue is peer review and general acceptance.

Morgan: Well, I think the general acceptance thing is going to lead to an endless parade of witnesses testifying it’s either accepted or it’s not accepted. I don’t know whether the judge or the jury figure out who’s ahead by the number of people, or credentials...what is generally accepted.

Rose: I don’t know if that would go to a jury. I have a feeling that would be decided in motions before the court.

Swan: You know, it’s interesting because I was subjected to a Frye hearing in one of these cases. It was ruled that what I was presenting was generally accepted. In fact, it’s nothing very novel.

Epi Monitor: Ken, did you want to comment on this general issue--about whether you think the Swan data are now more or less likely to be considered in the next trial?

Rothman: Well, it’s nice of you to ask a non-lawyer’s opinion on this legal question. My opinion on that is really simple-minded. Charles Fried seems to be putting the best possible face on an obvious loss. Had he won his case in the Supreme Court, this lawsuit would be over as far as I understand it. The only way it could continue is if the plaintiffs had won. They won and obviously that was good for them. Although the question about the admissibility of the evidence still has to be determined, without this victory they couldn’t have even gone to that step. Of course, no one knows the ultimate outcome. But this was clearly a loss for the defense despite the claims by Charles Fried.

Epi Monitor: As I understand the decision, we’ve really replaced the Frye rule with the judge’s opinion about what is reliable and relevant. While there's been some guidance from the Supreme Court for what judges ought to keep in mind, how do you think this is really going to work? What standard will really carry the day or be applied most frequently?

Rose: I don’t know about that. That’s interesting because I’ve been racking my brains trying to figure out what’s going to be excluded under this standard. If you’ve got someone who has a study that is flawed, I think the Court says that’s fine. You have the cross examination to point out the flaws to the jury. I keep looking at footnote 11; in Supreme Court cases it’s always the footnotes that linger long into eternity. It says we [the Court] don’t read the requirements of rule 702 to apply specifically or exclusively to unconventional evidence. So, on that basis, if it applies and the lawyer can make a case, and the jury should hear it, I think everything’s going to come in.

Epi Monitor: Will anything be junk science anymore? That’s your point, isn’t it, Sue?

Rose: Yes. I think a case can be made for admitting most evidence. If you’ve got something like this allergic-to-everything-in-the-environment thing—clinical ecology or whatever they call it now—this fringy kind of stuff, you might be able to exclude some of that.

Morgan: The problem with the general acceptability thing, is that they can bring 20 people forward and say that clinical ecology is very much a branch of science, and that it is accepted by that community. And what community are we talking about (in terms of general acceptance)?

Rothman: Well, I’m sympathetic with the idea that it will be difficult to keep junk science out of the courts with this decision. No one really knows what the ultimate impact is going to be on the courts, and therefore for society in general. It does seem, on the face of it, to be some kind of liberalization. The problem that I have is the other side of this case. As you may know, I was author of a brief arguing for the plaintiff. I’m against junk science in the courtroom as much as anyone. The problem is, the book which started most of the furor, a book by Peter Huber, Junk Science in the Courtroom, lists many examples of junk science, some of which I think are good science, most of which I think are junk science. But if Huber, who made a special study of this area, can’t figure it out, and in my view he can’t, I don’t trust judges to figure it out either. I think it’s better to have the liberal policy than a more restrictive one as far as the courts go. As far as science goes, I don’t think this ruling will have any impact. It’s not important for scientists. It is important in the courtroom and as far as these lawsuits have some important role in society in general, they’re important for all of us as citizens.

Rose: I think the court was pretty clear, and I think Chief Justice Rhenquist said this at the argument...he doesn’t want to turn judges into scientists. They don’t like turning judges into any kind of technical arbiter. I think it’s very much “let’s let it all come in and the attorneys with their experts helping them, can attack each other’s experts’ and that’s how we do it traditionally. I don’t see a big change in that.

Swan: I’d like to bring in a point that Michael Lipsett made, and I’m sorry that he’s not here because I think it is a very important point. (Dr. Lipsett is a physician-lawyer-epidemiologist with the California Environmental Protection Agency invited to participate in the conversation who was unable to join us for technical reasons.) I think, in terms of liberalization, (that) what’s important in this decision is what didn’t happen. In other words, had the verdict been otherwise, then the impact on the kind of evidence admissible in court would have been dramatic. So I think that what this decision did is hold the line against considerable attack fueled by Peter Huber’s book, which I believe was distributed to every federal court judge free of charge. So there was a big machine behind trying to limit epidemiological evidence in the courtroom because it has been harmful to certain groups in toxic tort cases. I think it is important to view this in a political context because I don’t think it exists in a vacuum.

Epi Monitor: Other than your own example, do you think that’s happened in the past? In other words, was epidemiologic work generally classified as junk science?

Swan: It depends on what helps the decision. When I first testified in DES, which was in 1980, the defense gave a speech—that was Bob Dixon—for the American Bar Association, saying epidemiological evidence is so dangerous, that it must be kept out of the courtroom. That article was published. It was called “Medical Causation by Statistics.” He said it is unusually persuasive, dangerous, keep it out of the courtroom. Now, in terms of Bendectin and silicone breast implants, it’s helpful for the defense, and now they’re arguing that it’s the only thing that can be let into the courtroom. I think it’s important to keep these battles in the context of who’s arguing and who they help. I don't think they’re really about science.

Epi Monitor: Maybe we could move ahead, unless anyone else wants to comment specifically about the impact of this decision on the plaintiff and the company. I’d like to move to talking specifically about its impact on judges and the judicial system. My first question has to do with what standards they will use in place of general acceptance. I think we’ve talked about that a little bit, but I don’t know if anyone wants to explore, for example, how much influence these court recommendations have. Chief Justice Rhenquist says they have a lot of influence.

Rose: They do. They will use all four (criteria) and they will balance them. That’s how they traditionally do it, and then there’s going to be a lot of cases that are going to dispute the decision. It’s going to get thrashed out in various courtrooms. But the Court has given four guidelines, and said they are flexible. A lot will fall back on the attorneys and the strength of their arguments and how persuasive they are.

Morgan: Sue, maybe you can tell us something. The judges are allowed to hire their own experts, are they not?

Rose: Yes, in federal court.

Morgan: Why is that so rarely done?

Rose: It’s expensive and time consuming. They tend to do it in large cases or when hearing numerous consolidated cases. They are called special masters.

Epi Monitor: In preparing for this interview, we spoke with Joe Cecil from the Federal Judicial Center who sent a copy of a study called Court Appointed Experts: Defining the Role of Experts. They did ask this question. They found there were a number of reasons, but the first one stated was—“judges view the appointment of an expert as an extraordinary activity that is appropriate only in rare instances in which the traditional adversarial process has failed to remit an informed assessment of the facts...”

Rose: I would agree with that. Each side has it’s own experts, so why go to an unnecessary expense? Presumably, each side will get the best they can.

Swan: My only experience with a court appointed expert was the Bendectin multi-district litigation, in which Judge Rubin appointed Steven Lamm, who was the defense expert. It has to be done with care so that the expert is actually neutral and usually the people who will come forward as knowledgeable will have an opinion for one side or the other. So I think there is that danger. Having each side have their own experts balances that out.

Rose: The multi-district litigation was a consolidation of hundreds of cases from all over the country. So that is why the judge went ahead to appoint someone.

Epi Monitor: One of the statements in the Supreme Court decision is that the judges are not to look at the conclusion of the work but to focus only on the methods. Is it likely that they can only focus on the methods without getting into the way in which the methods were carried out? And if they do that, doesn’t that get us into quite a rather different situation?

Rothman: Well, in theory they can get into whatever they wish, and if they don’t, certainly it can come up in the courtroom, as far as I understand it.

Swan: I think Ken is right. I actually was an expert in a Frye hearing which involved another expert—the admissibility of the testimony of another expert. That was Allen Done in another Bendectin case. I testified that his method was generally acceptable because that was the criteria then, namely he had reviewed the literature, pulled out confidence intervals and odds ratios, but I couldn’t testify to the acceptability of the numbers because, in fact, I couldn’t tell where they came from. I couldn’t find them. They didn’t have much relation to the studies they were summarizing. So, in fact, even though the methodology was generally acceptable, I don’t think how he actually pulled out those numbers would have been acceptable to most.

Epi Monitor: Isn’t that one of his findings rather than his methods? That’s what I’m trying to sort out.

Swan: Probably if that had gone to a court of law, then Steven Lamm or someone would have come forward and said, “hey, these numbers don’t come from these papers,” and then the jury would have seen that. So I don’t think the judges need to do this.

Epi Monitor: So, you’re saying that it will come out in the cross-examination?

Swan: Right.

Epi Monitor: Do you agree they will try to strictly focus on the general acceptability of the method rather than anything about how well it was applied?

Rose: Absolutely. I think they’ve totally left that up to cross-examination.

Morgan: I had a similar experience to Shanna’s, where somebody’s numbers couldn’t be supported, and I agree that is really not an area for the judge. The jury understands that very quickly when an expert gets up and says, “these numbers didn't come from this paper, here’s the paper, here’s the numbers. There’s no way he could have gotten those numbers out of this paper.” I think when you get into finer gradations of the quality of the case-control study, whether the controls were appropriate, some of the nuances familiar to epidemiologists, that’s going to be very difficult for either side to explain to a judge or jury.

Epi Monitor: I hear that no one thinks there will be a lot of time spent in determining whether the evidence is admissible. The study is likely to be admitted and the flaws in the study would likely come out during the cross-examination rather than in the attempts to determine whether the evidence is admissible.

Swan: There are other areas where this will be relevant. DNA testing for paternity and more sophisticated blood testing. Of course, this Frye rule originally came up with the lie detector test. So, I think beyond epidemiology is the question of new technologies.

Epi Monitor: Well, moving on...will the judges need help? And, if they will, how are they likely to seek and use help in this kind of environment?

Rose: They are going to expect it from the lawyers. The lawyers are going to have to get it from their experts. So the experts are going to have to educate the lawyers, and the lawyers will educate the judges.

Epi Monitor: But that sounds like getting education from one side or the other. How is the judge going to decide? Is the judge going to get education from both sides?

Rose: If he has both sides saying, “this is the accepted methodology,” then he can make the decision.

Epi Monitor: The Federal Judiciary Center is preparing a guide to help judges. Maybe in the long run we need judges that specialize in science.

Rothman: I’ve seen the document you just mentioned. I was asked to comment on a draft of it. I thought it had some difficulties. I admired the ambition of trying to write a 30-page document that would educate judges as to what was good epidemiology and what wasn’t. But, in my response, I likened this problem to trying to educate a group of epidemiologists as to how to conduct a trial properly. Mainly, I thought it was nearly hopeless. I wanted them to understand what the magnitude of the task was, looking at it from the other side. I don’t imagine that a lot of success is going to come out of that project, although I tried to be as constructive as I could. As you might imagine, everything gets reduced to simple rules of thumb, to which there are numerous exceptions and many of which are not even acceptable to many epidemiologists. So you end up with a very shallow way of evaluating epidemiologic studies.

Rose: That’s why I said it’s probably going to come from the lawyers, who’ll get it from the experts. The judges are going to be educated intensively in whatever issues are relevant to the case. Judges rapidly become experts in that kind of thing, depending on what the case is. You have to remember—judges came from lawyers, and we all went to law school because we didn’t like science. So trying to teach judges science—I don’t think it’s going to work too well.

Swan: It sounds, from what Ken was saying, that it’s hopeless that judges will ever learn. In some sense that’s right. But we should all remind ourselves that not that long ago, 20 years maybe, if a question of medical causation came up in court, what judges did was to get a physician up there and the physician said, “I’ve seen 17 of these cases and this causes it,” and that was it. There was no question of scientific method, there was just the clinical opinion. It sounds like we are making things worse, but I think really the situation has gotten a lot better. Judges and juries and experts are now asking, “what is the basis of that opinion?”

Rothman: My comments weren’t directed at the hopelessness of educating judges, at least not from the point of view of judges not being educable. It was the difficulty that epidemiologists would have in trying to put into 30 pages what distinguishes good from bad epidemiology.

Swan: You’ve given a course to judges, and I’ve given lectures to judges and I think that we should just continue to push for that. The more epidemiology comes into the courtroom, the more judges are going to have to understand the principles.

Morgan: I think what’s going to happen here is the experts called by either side are going to have to be as good at communication as they are at science. The ability to teach judges what is known about that case will be as important as their background credentials.

Epi Monitor:  That’s an interesting point.

Rose: As an attorney, you want an expert who is a teacher. You want a good teacher, because ultimately the expert teaches the judge and the jury what it is they need to know.

Epi Monitor: So that is already recognized by judges and lawyers.

Rose: Yes, your best expert is a good teacher.

Epi Monitor: Let me move on to the last area I’d like to cover which has to do with what we expect the impact of this decision to be on both epidemiologists and epidemiology.

Swan: I think the impact would have been marked if it had been a decision in the other direction. As it is, I think we’re kind of back where we were. As this plays out in the courts over the next couple of years, we will see the impact on what’s allowed in the courtroom. I think it's too early to say what it will be.

Rothman: I think I speak for the majority of epidemiologists when I say that I have never testified in a courtroom, and I don’t have any plans to in the future. Though many of us are interested in what goes on in the courtroom, basically I don’t think this decision has any real impact on the ordinary work of an epidemiologist. This is really a legal issue which has broad ramifications for society in general, possibly, but no real specific implications for epidemiologists that I can see.

Morgan: I don’t think it’s going to have much of an impact on the epidemiological community. I think though what we’ve been seeing lately is that both sides, both plaintiffs and defendants, have been commissioning epidemiologic studies, because there is sometimes a lag time of a couple of years before some cases actually come to trial, so there’s time to do a study. Some of these studies have been of reasonably good quality, some of them have been of terrible quality. I think that now that the rules are relaxed, and because the studies don’t have to be published, it may encourage even more of the dubious quality studies. They’ll just have to take their chances in the courtroom.

[Editor’s note: Dr. Swan had to leave the conversation at this point.]

Epi Monitor: Sue, what do you think the impact will be on epidemiology or epidemiologists?

Rose: I don’t think it’s going to change much. It might give those epidemiologists who are involved in working with lawyers a little extra work in terms of helping the lawyers prepare to attack the methods of the other side’s experts. That’s the only change I see. I don’t think it’s going to change how they do their day to day business at all.

Epi Monitor: Do you see a boom industry for epidemiologists as consultants in one fashion or another as a result of this?

Rose: Depends on the type of cases that are coming up. If there are a lot of them that need that kind of help, maybe. I don’t know. It also depends on educating the lawyers as to what epidemiologists do and it may be helpful to the case to use one.

Morgan: I think it will increase the market or the need for epidemiologists to be expert witnesses. I think some of the cases that might have been thrown out early on which didn’t require a lot of experts, will now require even more experts.

Epi Monitor: So, you do see an increase in demand.

Morgan: I think, unfortunately, it tends to pit one epidemiologist against another. I had the experience the other day of calling one of my colleagues at a university, because I’ve been retained by another client—it wasn’t a lawsuit— I said, “we'd like to have a look at your data.” He said, “well, we’re playing hard ball, we’re not going to give you our data.” I don’t want to be enemies with someone because they don’t give me their data to look at, but you’re going to get some epidemiologists who end up being less than friendly because they find themselves on opposite sides of the issue. I hope that doesn’t happen. I think people can be on opposite sides of any issue in science and still retain their respect and friendliness and still be colleagues.

Epi Monitor: Do you see a change in that recently, and do you think it might happen more in the future?

Morgan: I think so.

Epi Monitor: Ken, do you have a comment about that? I know you have talked and thought a lot about the need to challenge people’s findings and to do so in a collegial manner, but I do think it sometimes takes on an adversarial tone.

Rothman: I suppose, like Bob, I’m surprised there is as much adversarial relation in some little pockets of epidemiology as there is. The National Academy of Sciences had a document on sharing data a number of years ago that emphasized the importance of sharing data, especially in an area like epidemiology, where it is so difficult in some cases to repeat studies or to get parallel bodies of data. I’m sympathetic on the one hand with the degree of bother that is involved in providing data sets to other investigators, especially when you are concerned the data will not be as well understood as they would be by someone with thorough knowledge of the pitfalls in data collection and in examining the data. On the other hand, I think it is part of our collective responsibility to keep our data open and I have always encouraged that. I hope we reach the point where people feel more comfortable doing it.

Epi Monitor: It seems to me though that one of the differences between the law and science is that one has a tradition of collegial sharing of information, whereas the other relies much more on adversarial relationships in arriving at the truth. Sue, what do you think? Are Bob and Ken speaking naively about this?

Rose: Well, there is an adversarial tone that goes along with litigation, but under our liberalized discovery rules, everybody is entitled to know as much as the other side knows.

Epi Monitor: What was Bob talking about when someone made it hard for him to get data?

Rose: He said it was outside of a lawsuit setting. If you already have a lawsuit filed, then they are under a court obligation to comply and they can be held in contempt if they do not release their data to the other side if it’s asked for properly during the discovery. But outside a lawsuit, you may get into these kinds of problems. But once a lawsuit has been filed, you do have an adversarial relationship. On the other hand, you are entitled to as much information as the other side’s got. There’s no such thing as trial by ambush anymore. Each side needs to know, and has the power of the court backing them up to get as much of the other side’s data as possible.

Epi Monitor: Will this have the impact of blocking the use of junk science, more so than prior to the decision? A second question would be whether this is going to have any effect at all on how scientists do their science.

Rose: I don’t know what the exact definition of junk science is anymore. There's a lot of evidence that comes into the courtroom out of the mouths of medical doctors as anecdotal, and that’s okay. The court allows doctors to do that kind of thing—that’s their opinion. A lot of what Peter Huber writes about is that kind of evidence.

Rothman: I don’t think Peter Huber knows the difference between junk science and good science. I read his book. Some of it was junk science, and some of it wasn’t. As far as I can tell, in the community of colleagues that I deal with, many of them would be able to tell what is junk science and what isn’t, but outside that community of specialists, I wouldn’t feel comfortable relying on anyone. So one of the reasons I’m happy with this verdict is that it leaves the doors open more than they would have been had the verdict gone the other way. Even though the court has supplied some criteria now for evidence to be admitted, the criteria aren’t rigid.

Epi Monitor:  Would you say that is the main point of your brief?

Rothman: Well, actually the main point of my brief we haven’t gotten to in this discussion. One of the Appeals Court issues that had come up in the case earlier was that studies should not be admitted into evidence unless the findings were statistically significant. As you may know, that has been an issue that I have been concerned about in scientific applications for many, many years, and I was saddened to see that statistical significance might become a requirement for admissibility into the courtroom. This, in my view, is only a substitute for thinking about what is really important, and so the thing that motivated my brief was reliance upon this talisman of statistical significance rather than a thorough evaluation of the actual issues. So I focused the brief on that issue. There were a few comments in the brief about the issue that attracted the great attention in the case, which was peer review and publication.

Epi Monitor:  I’ve read your brief and I think this is the kind of thing that Shanna was talking about and that Michael Lipset mentioned—that the victory was in what was averted. In other words, had blind adherence to statistical significance been accepted as a criterion, then we would be having a different conversation than we are.

Rose: That’s what we call a “bright line” test. That is not something judges are real comfortable with. If you fall on this side of the line, you’re in; if you fall on that side of the line, you’re out. There’s so much incredible variability in each case. One little fact changes and the whole thing shifts. Judges get very uncomfortable with “bright line” tests and really want to assess each case on its own merit.

Rothman: I’ve already argued that scientists should never be basing any interpretation on statistical significance. I think we should avoid it as a concept whenever we can. I thought it would have been a shame had the court jumped on that bandwagon.

Morgan: I don’t think it’s going to affect science that way. Someone said this was a milestone. Well, it may only be a milestone for a very few people who are on a particular road. Not many epidemiologists are walking that road, but maybe I’m one of the few that spends a lot of time on that road. But even there, I don’t see this as having an incredible impact.

Having had my testimony disallowed because of the Frye rule, even though I was testifying concerning an article I had published in a peer- reviewed, reputable journal, and having, on the other hand, worked with attorneys to see that something else was disallowed for the same kind of thing, I’ve seen both sides. I think what Ken has called the liberalization of the policy is going to create a demand for epidemiologists who can teach judges or juries whether this is good science or bad science.

Unfortunately, even though we try to evaluate things, it’s not always clear whether there’s an association or not. If you read the opinion of the court, they were properly noting that there’s sort of no such thing as proof. So something is not always universally acceptable. But eventually, the question is, did A cause B? And whether you like it or not, that tends to be a rather “bright line” test. I think the issues of confidence limits vs. statistical significance are more important to the practicing scientist. But to a judge or jury, I think maybe the statistical significance is going to have more of an impact because it tends to create a “bright line” whether we're comfortable with a “bright line” or not. There are people looking for it.

Epi Monitor: There’s an interesting comment in the decision about how the law doesn’t seek “cosmic understanding” but rather seeks to resolve disputes in the here and now. The law realizes that in accomplishing that, it may have to sacrifice certain things.

Rose: It also realizes that given the same set of facts, in a different courtroom, you’re going to get a different decision.

Epi Monitor: How do the lawyers explain that to themselves?

Rose: They make the best arguments they can and that’s why they never like to go to trial. Because once you get it into the control of the judge and the jury, it’s out of your hands and you don’t know what’s going to happen. And that’s what we tell the client—you don’t have the slightest idea what’s going to happen, you are taking a big risk, because we don’t have any ultimate control over that. The jury may decide they like some expert, and they’ll decide on that basis. And that’s the risk you take with your peers.

Epi Monitor: So the facts are one thing, and the trial and the process are another.

Rose: Absolutely. The facts are one thing, and the trial is theater. It’s who puts on the best show.

Epi Monitor: Before we close, I’d like to give everyone an opportunity to raise any additional points they’d like to make. If you have a comment on points I didn't raise, please feel free to do that.

Rothman: Not really a different point, but as a summary I’d like to say that I like the verdict because I think it told judges that their thinking about what should be allowed in as expert testimony by epidemiologists and other scientists should be guided by the same kinds of considerations that guide scientists. I think this verdict tells judges to start thinking more like scientists in trying to decide what should be admitted into court.

Epi Monitor: So in that sense, it’s a victory for science. The process itself, its methods and rules of operation have been emphasized. Bob, do you have any additional comments?

Morgan: I think it’s going to be interesting to see if this has any impact at all.

Rose: I think it will be interesting to see how it works out in actual practice. Supreme Court decisions are one thing, applying them is a whole different kettle of fish entirely.

Epi Monitor: How long will we have to wait for that?

Rose: The first time someone gets a decision that they didn’t like under this rule, they will appeal it. It may be the same Bendectin case that’s been remanded.

Epi Monitor:  Thank you. I do appreciate everyone’s time and comments.

Published August/September 1993 

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