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Candor, acrimony and pithy insight marked a vigorous debate at Quinnipiac University School of Law in Hamden, Conn., over the new federal court procedure that turns judges into “gatekeepers” for expert testimony. Plaintiffs’ proponents said judges are taking away the fact-finding role of the jury — especially in cases resting on hard-to-fathom science. Arthur R. Miller, the telegenic Harvard law professor, rode herd March 28 on the eight-person panel of lawyers, doctors and a journalist discussing “Scientific Experts and the Courts: The Daubert Debate.” It was sponsored by Bridgeport, Conn.’s Koskoff, Koskoff & Bieder, a top plaintiffs’ firm. Miller tapped Ned Miltenberg, associate director of legal affairs for the American Trial Lawyers Association, to explain Merrill v. Daubert. Miltenberg has authored key briefs on Daubert issues for the U.S. Supreme Court. Miltenberg explained that in 1993, over questions of the admissibility of expert testimony in a morning sickness drug case, the U.S. Supreme Court held that the older Frye standard was outdated. Under Frye, testimony is limited to research that has gained general acceptance in the scientific community. In an effort to allow newer scientific testimony, the Court held that judges should weigh potential expert theories in light of four new criteria. Miltenberg declared that subsequently, “ Daubert has been applied with a vengeance, and has metastasized to some 50 criteria.” To a peal of laughter, Miller quipped “Don’t hold back, Ned.” Cummings & Lockwood’s William A. Ruskin, a Stamford, Conn., defense lawyer in environmental and drug cases, said Daubert and its companion cases simply stand for the idea of “no junk” science. Courts, he said, finally came from “an acknowledgement in the real world that what goes on in the courtroom is not science at all.” Professor David Ozonoff, chair of the Boston University department of environmental health, countered that Daubert‘s tests are made by lawyers “who know nothing about science at all [and are] being used purely and simply as a way to avoid getting dangerous things before a jury.” New York Times science reporter Gina Kolata, who has covered the legally rich, scientifically thin breast-implant litigation story, warned of the “tyranny of the anecdote,” when viewing a scientific matter. Epidemiologist M. Elizabeth Karns, who is also a first-year law student at Quinnipiac, noted that law and science may be looking for different kinds of solutions. Legal conflicts seek “bright line” solutions. Medicine may be looking for better odds. But both fields must inevitably intersect in the courtroom. NEW EDGE The comparative advantages to plaintiffs and defenders were hotly debated. Plaintiffs’ lawyers seldom object to defense witnesses, favoring broad admissibility, noted Miltenberg. Anthony J. Roisman, an environmental lawyer, traced the birth of Daubert to Peter Huber’s book “Galileo’s Revenge,” which coined the term “junk science” and posited that much science in courts is suspect. To chuckles, Roisman said Huber’s thesis is so flawed it would be thrown out under Daubert, the “anti-junk” rule it spawned. He said Daubert creates “a heads-defendants-win, tails-plaintiffs-lose process” in which defense lawyers, paid by the hour, take weeks putting plaintiffs’ experts on trial. And even if the expert is allowed, the defendant is no worse off than before. Roisman said juries should be allowed to hear and weigh experts’ testimony for credibility, with minimal interference from the judge who is “the gatekeeper, not the referee, much less the quarterback.” Panelist Walter A. Borden is a forensic psychiatrist and brother of Connecticut Supreme Court Justice David M. Borden. A benefit of Daubert, he said, is that scientists explain the logic behind conclusions. Interesting scientific ideas are not always ready for court, he said, such as brain scans to show that people hear voices. Glenn J. Pogus, a product liability defense lawyer with New York’s Kaye, Scholer, Fierman, Hays and Handler, said Daubert is “right on the mark,” because few people realize how deeply conflicted science actually is. WEALTH EFFECT Stretching minds, New Hampshire lawyer Roisman gave the hypothetical of a sick plaintiff who wins a $2 million award, later finding there’s no good science to back it up. In the great scheme of things, “what has been the harm?” Miller merrily dubbed him a populist — verging on an anarchist. In his questioning, Miller painted scenarios of poor plaintiffs’ lawyers fighting rich defenders — an image Ruskin wouldn’t let slide. The owner of the Baltimore Orioles isn’t a defense lawyer, he pointedly noted, with an oblique reference to Maryland tort ace Peter Angelos, who made enough as a plaintiffs’ lawyer to buy the ball team. Miltenberg, looking up at the rows of law students filling Quinnipiac’s Great Hall, said he works for a 50,000-member association of plaintiffs’ lawyers, the great majority of whom make less than $100,000 a year. Kolata, the science reporter, was cut off with a hoot early in the symposium when she suggested judges appoint independent experts to evaluate new science. But Miller ultimately returned to that idea, noting the new federal evidence rules contemplate doing just that.

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