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Charles D. Weller believes strongly that so-called junk science plays too influential a role in litigation and federal regulatory decisions. As a result, he and a fellow partner at Cleveland’s Baker & Hostetler have started The Daubert Council, a nonprofit organization designed to spread the word about the organization’s namesake — the U.S. Supreme Court’s 1993 ruling in Daubert v. Merrell Dow Pharmaceuticals Inc., 125 L. Ed. 2d 469. According to Daubert, the oft-litigated Rule 702 of the Federal Rules of Evidence requires federal trial judges, before they allow expert scientific or technical testimony, to examine several reliability criteria, including whether the offered theory has been subjected to adequate testing and peer review as well as whether it has been accepted by the relevant scientific community. Weller, a 56-year-old litigator who specializes in health care, antitrust and employee health benefits law, wants state courts and all federal regulatory agencies, including the Environmental Protection Agency (EPA), the Federal Trade Commission and the Occupational Safety and Health Administration (OSHA), to adopt Daubert standards. To accomplish this heady goal, Weller and his partner, David B. Graham, 56, himself a former attorney for the EPA, set up The Daubert Council in January. It is made up of client-corporations and industry groups — Weller will not say who has joined or how many members there are — who agree to share resources and strategies in much the same way class action plaintiffs’ lawyers pool resources against major industries. The idea was driven home, Weller explains, when many of the federal regulations issued by President Clinton just before leaving office were rescinded by the new administration “so that we can make [decisions] based upon sound science,” President Bush said. The most significant change occurred when OSHA withdrew the new rules governing ergonomic, or repetitive-stress activities. The Daubert Council had played a small role in opposing the rules by joining with the National Association of Manufacturers and others in filing petitions with the U.S. Court of Appeals for the D.C. Circuit. National Association of Manufacturers v. U.S. Department of Labor, No. 00-1473. “Together, we nuked ‘em,” says Weller, who says that he is “horrified” at how often courts and agencies rely on unreliable scientific evidence to make decisions. “Finally, we have an advocacy group that will articulate the need to vigorously review administrative decisions,” says Bill Gorenc Jr., assistant general counsel at Jencorp, a Sacramento, Calif.-based manufacturing conglomerate. Randy Goodden, a compliance officer who also chairs the liability prevention committee for the 130,000-strong American Society for Quality, says he sees “no downsides in applying Daubert standards to either the state courts or the federal agencies.” Is the council necessary? But when confronted with the Daubert Council’s agenda and secret membership list, some experts wonder whether Weller is pushing too hard for new Daubert applications, without proof that any are needed — or wanted — to the extent that he suggests. “Agencies employ scientists all the time,” says Professor Richard Merrill of the University of Virginia Law School. Indeed, many federal statutes already require federal agencies to go to great lengths to justify their actions. For instance, the Administrative Procedures Act, which generally governs the way federal agencies must take official action, pointedly says that a federal rule may not be issued except when “supported by and in accordance with the reliable, probative and substantial evidence.” And there are more than two dozen different federal statutes involving environmental issues alone — including the Comprehensive Environmental Response Act, the Toxic Substances Control Act and the Food, Drug and Cosmetic Act — that tell eight separate agencies how they should apply varying legal standards when issuing new rules. The Clean Water Act tells agencies with jurisdiction over environmental issues to employ the “best available technology economically achievable” and the Resource Conservation and Recovery Act requires standards “as may be necessary to protect human health and the environment.” Occasionally, a federal court has applied the Daubert “reliability” standard to federal agency actions as the D.C. Circuit did two years ago in Libas Ltd. v. U.S., 175 F.3d 1027, even though the Federal Rules of Evidence did not apply to the challenged actions in the case. But even Weller concedes that few courts see the need to apply Daubert, given the large number of instructive statutes already on the books, and to do so “would represent a sea change” in federal agency law. Although an OSHA representative declined to comment on Weller’s new organization, he pointed to agency regulations that are always prefaced by an explanation of the expert studies relied on and the public hearings held before such rules were promulgated. In the case of the agency’s ergonomics rules and in light of widespread criticism from the business community of a “rush to judgment” after they were issued on Nov. 14, OSHA officials insisted they had followed the letter of the law — and that they had boxes full of transcribed expert testimony to back up that claim. Like Weller, Graham does not deny that agencies like OSHA solicit studies and hold public hearings as required. But he insists they simply don’t do it often or thoroughly enough or, as in the case of the Clinton-driven ergonomics rules, they are unduly influenced by “political” considerations, not by science. As to applying Daubert in state courts, about half already do, according to Professor Leo H. Whinery, of the University of Oklahoma College of Law. Weller and Graham hope to influence the other state courts, as well as federal agencies, by building an organization of influential members that pool resources and make successful arguments in court. They persuaded a company to file an amicus brief in a Supreme Court case and hope to do more of this. They also hope to file their own briefs and perhaps to bring an independent test case to challenge a state court or a federal agency decision.

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