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On a breezy day in November 1989, Donna Castillo strolled by a west Kendall “U-pick” farm near her home. As she walked, Castillo noticed a tractor out in the fields, bucking and jerking as it sprayed gusts of mist into the air. Before she knew it, she was completely drenched. Castillo was seven weeks pregnant. It wasn’t until John Castillo was born without eyes — a rare birth defect called microphthalmia � that Castillo learned that the liquid that doused her was a potent fungicide containing a chemical called Benlate. Castillo and her husband, Juan, sued Pine Island Farms and the DuPont Co., the fungicide’s manufacturer, on negligence and liability grounds. During the trial, a professor from the University of Liverpool in England testified that Benlate has caused microphthalmia in newborn rats and concluded from this that the chemical could cause the birth defect in humans. Evidence was also introduced from a study conducted on behalf of the Castillos’ lawyers — who have other Benlate cases pending. The Castillos won a $4 million judgment. But the case was overturned earlier this year. The 3rd District Court of Appeal ruled that Miami-Dade Circuit Judge Amy Steele Donner failed to satisfy “Frye” — a four-step test to decide whether expert conclusions are based on methods generally accepted among scientists. The Castillos have appealed to the Florida Supreme Court. Donner, who did not return phone calls, is hardly the only judge who may struggle with scientific evidence. In fact, a Florida International University professor is questioning whether judges can correctly separate valid scientific testimony from “junk science.” The professor, Margaret Bull Kovera, has completed a study showing that 83 percent of the judges surveyed in Florida’s circuit courts cannot distinguish valid scientific testimony from flawed studies. The study is being published this month in the prestigious Journal of Applied Psychology. “We don’t think judges are stupid,” says Kovera, professor of psychology at the school’s Biscayne Bay campus in North Miami. “They’re not trained to make these kinds of distinctions. There are few such classes in law school, and the ones they have are not popular.” Judges, not surprisingly, are challenging Kovera’s thesis. “I think judges in Florida have been trained properly,” says Miami-Dade Circuit Judge Celeste Hardee Muir. “It seems we’re constantly being lectured on scientific testimony when we go to conferences.” In recent years, scientific testimony has flooded courtrooms, fueled by the advent of the Internet and easy access to thousands of studies. That’s forced judges to become experts on topics usually reserved for medical school. Concerned about the proliferation of expert testimony, the U.S. Supreme Court in 1993 urged federal trial judges to become “gatekeepers” and assure that “any and all scientific testimony or evidence admitted is not only relevant but reliable.” The court’s admonishment came when it ruled on a case in which parents sued the manufacturers of a drug called Bendectin, claiming it caused birth defects in their children. In that case, Daubert v. Merrell Dow Pharmaceuticals Inc., the trial judge let the jury determine whether expert testimony showed that the drug Bendectin causes birth defects. While the experts were qualified in their fields, they did not have any objective studies to back up their hypothesis. So, the only drug available to stop morning sickness — one the U.S. Food and Drug Administration said was safe –was taken off the market and to this day is not sold in the United States. While the Daubert decision established guidelines for federal judges to follow before admitting scientific testimony, no such guidelines exist for state judges. Some have chosen to follow Daubert, some have not. Perhaps they should, says FIU’s Kovera, whose specialty is “legal psychology,” a new field that stands at the intersection of the two disciplines. In a year-long study, Kovera set out to determine whether judges could tell good science from bad by borrowing a University of Minnesota study on sexual harassment. In the Minnesota study, half of a group of men were shown sexually suggestive ads. The entire group then was introduced to women who they were told were job candidates. The men who watched the ads moved their chairs close to the women and rated them poorly in evaluations. The men who did not see the ads treated the women with more respect. The FIU researchers introduced flaws into the study. In one version, for example, they eliminated the control group and in another tainted the results with a biased experimenter. They sent the studies to 380 Florida circuit judges — one group received valid studies and another group, the flawed versions. The judges were asked whether they would admit the studies into court for a case asking whether exposure to sexual materials leads to sexual harassment. Of 144 judges who responded to the survey, 83 percent said they would not admit the valid testimony; the same number said they would not admit the faulty testimony. The overwhelming majority of judges could not distinguish between flawed and solid science. The study focused on testimony about psychological issues, but Kovera says judges must have the same skills to evaluate research in other fields — medicine, forensics and the like. “Since Daubert, we’ve been asking judges to make a distinction between good and bad science,” Kovera says. “We know from previous studies that juries cannot make this distinction, and I know that law schools do not train people to identify flaws in scientific studies. So unless they get extra training, how are the judges going to be able to do it?” Judges were nonplused by the results. “I’m not so sure that’s a valid way to test whether judges would admit scientific testimony,” says Palm Beach Circuit Judge Edward Garrison, who taught a course called “Junk Science in the Courts” at the Advanced Judicial Studies Council in Orlando, Fla., a couple of years back. “It’s not done in a vacuum, with a little study. You have an expert witness on the stand presenting it. I think the judges who answered that survey were sandbagged.” Sniffed a Miami-Dade circuit judge who did not want to be identified — and who had declined to answer the survey: “I don’t put a lot of stock into what a psychology professor said.” Still, he agreed with Kovera’s recommendation that the court appoint a neutral expert in scientific cases. “In some cases that’s certainly advisable,” he said. Whether or not Kovera’s study is valid, the issue is on the agenda in legal circles. Indeed, judicial conferences and publications in recent years have been rife with the subject of scientific testimony — apparently responding to judges wishing to become educated on the subject. “When confronted in their courtrooms by medical and scientific experts, judges may shake their heads at the scientific jargon and analysis thrown about by these experts.” says an article in the winter 2000 issue of the alumni magazine of the National Judicial College, a school for state judges. The article encourages judges to “reclaim their courtrooms from the experts” and to stop being “dazed by a courtroom ‘battle of the experts.’ “ Federal judges appear to be better trained in scientific methods than state court judges, said 11th U.S. Circuit Court of Appeals Judge Stanley Marcus. Not only have they all received primers on scientific testimony from the Federal Judicial Center, but they have several U.S. Supreme Court decisions on the subject to guide them. State judges, though, appear to have more to learn. (Indeed, Kovera said several asked on their surveys where they could obtain copies of the FJC’s “Reference Manual on Scientific Evidence.”) “Judges don’t understand when to admit scientific testimony,” says Arthur England, a former chief justice of the Florida Supreme Court and the appellate lawyer with Miami-based Greenberg Traurig who won the Castillo appeal. “Frye is not an easy test.” Still, there is some evidence that judges are becoming more science-literate. Take the case of the appetite suppressant fenfluramine. Reports linking the drug to heart valve damage fueled thousands of individual lawsuits backed by massive class actions. But courts around the country have dismissed these suits, ruling that testimony does not reflect acceptable scientific methodology and that two physicians testifying did not demonstrate reliable data to support their hypothesis. Some lawyers argued that the nature of the legal system prevents egregious errors. “It is important that judges are or be made aware of scientific methods and statistics, but I don’t think it’s quite as critical as this FIU professor thinks,” said Bruce Rogow, a lawyer and professor at Nova Southeastern University’s law school. “These presentations don’t occur in a vacuum. It’s an adversarial system, so if a study is flawed … the lawyer on the other side can object.” But what if the lawyer doesn’t grasp scientific methods any more than the judge? Kovera says she did a similar study — not yet published — that surveyed lawyers. The results were similar. Lawyers, too, could not identify valid scientific evidence. That’s why Kovera recommends that judges consult with court-appointed experts to assist them with scientific testimony. The problem with this, says Miami-Dade Circuit Judge Muir, is the cost involved. “It might be good to have an independent expert but, already, one side pays for an expert, and the other side pays for their expert,” she says. “Then, if the court pays for a third one, that’s triple the cost.” Muir says the cost would be justified, however, in important class-action trials. A forensics expert who spends his days testifying in courts around Florida says judges are in no way to blame: It’s the experts. “Of course judges don’t understand the science — the practitioners often get confused themselves,” says John Spencer. “If everybody was honest, there’d be no problem. The truth can be obfuscated by smoke and mirrors. It’s very short-sighted to point our finger at the judiciary.”

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