Trial lawyers and judges are frequently ill-prepared to handle cases involving science and technology, warns Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit in Jackson v. Pollion (2013). Despite the merits of Posner’s critique and the fodder it gives opponents of the civil jury system, Texas judges and trial lawyers, as a rule, are quite comfortable with such issues.

The civil jury trial already plays a diminished role in dispute resolution, and many question its value. Posner’s critique emboldens such critics who seek to further restrict the role of civil jury trials.

Solving the problem identified in his critique means ensuring that scientifically unreliable expert testimony does not reach the jury. Texas trial lawyers and judges are leaders in slamming the gate on junk science. They should not relent.

Let’s look at the case in which Posner made his remarks. Posner points out that, if lawyers and judges were better informed about science, the court could have resolved Maurice Jackson’s lawsuit much earlier.It was a paper-thin 42 U.S.C. §1983 lawsuit founded on the notion that Jackson developed hypertension during his stay in an Illinois prison because he was denied his hypertension medication for a few days.

Jackson’s lawsuit churned through the courts for more than four years. A U.S. magistrate judge ultimately granted a defense motion for summary judgment, finding Jackson could not support his allegation that defendants were deliberately indifferent to his hypertension. On review, the federal district judge agreed. Jackson appealed to the Seventh Circuit, which affirmed in an opinion written by Posner.

A single paragraph by Posner dashedJackson’s effort to reverse the summary judgment. Posner then launched his critique. He was troubled “that both the district judge, and the magistrate judge whose recommendation to grant summary judgment the district judge accepted, believed that Jackson ‘can present evidence permitting a reasonable inference’ that he had experienced a serious medical condition as a consequence of the interruption of his medication.”

Posner continued, “This is mistaken, and (not surprisingly) has no support in the record. But it is not only repeated in the plaintiff’s brief in this court, as one would expect; it is largely ignored by the defendants.”

Posner broadened his critique, calling this lapse “indicative of a widespread, and increasingly troublesome, discomfort among lawyers and judges confronted by a scientific or other technological issue.”

He supported this critique with a medley of quotations intended to capture the chasm between law and science. Acknowledging that this divide is not new, Posner warned that it now merits heightened concern, “because of the extraordinary rate of scientific and other technological advances that figure increasingly in litigation.”

Failure to embrace science meant Jackson lingered needlessly for years. “A stronger judicial hand on the tiller could have saved a good deal of time, effort, and paper,” concluded Posner.

Almost as if to prove Posner’s point, Seventh Circuit Judge William Bauer’s blithe Jackson concurrence boasted that he and “many lawyers decided against medical school because of a lack of interest in the clinical aspects of medicine or a deeper interest in the scientific aspects of law.”

Posner’s assertion that litigation increasingly involves issues of science and technology is accurate. His assertion of “widespread” discomfort with science among lawyers and judges is debatable. Yet it does exist, and, when it does, cases turning on science or technology are at material risk of mismanagement.

Posner’s remarks matter. Critics of the trial system can exploit the Posner critique, claiming, for example, that mismanagement of a Daubert challenge by science-phobic lawyers and judges can result in profound damage. Jackson was a single case. But, for example, erroneously admitting an unreliable expert opinion that a product is a cause of cancer might trigger a billion dollar mass tort.

Science in Texas

Texas lawyers and judges, however, can respond to the Posner critique concretely. Texas appellate courts often have handled scientific issues without problem. For example, consider how an intermediate appellate court and the Texas Supreme Court handled the complicated and controversial scientific issue of whether the use of “differential diagnosis” is a reliable methodology for reaching expert causation opinions.

Treating physicians routinely use “differential diagnosis” to deduce which of several possible diseases best explains a patient’s symptoms. This determination guides the treatment plan.

To illustrate, a patient complains to her treating physician that she has severe chest pain. The physician may determine the most likely cause of the chest pain and embark on treatment by, first, listing the potential causes of chest pain, and, then, clinically eliminating each one until she is left with the most likely cause or causes.

However, differential diagnosis as used by an expert in litigation to support a causation opinion can differ fundamentally. An expert, for example, who uses “differential diagnosis” to support a litigation opinion that a specific product causeda plaintiff’s diabetes uses a dramatically different deductive methodology. Normally, this expert will begin with a list of risk factors for diabetes and purport to eliminate all of them, systematically, but for the product. This methodology, even when used by a treating physician in litigation, is controversial.

Consider the 2010 Texas Supreme Court opinion in Transcontinental v. Crump. Crump exemplifies lawyers and judges at every stage of the litigation confidently confronting this thorny scientific issue.

In Crump, the Texas Supreme Court rejected the approach used by Houston’s Fourteenth Court of Appeals in reaching its decision on the reliability of differential diagnosis. In August 2008, the Fourteenth Court affirmed the trial court’s decision that denied a reliability challenge, and allowed a treating physician to give a causation opinion that was based on his differential diagnosis. Importantly, the court exempted this opinion from the full rigors of a reliability challenge, because “differential diagnosis” was a widely accepted methodology when used by treating physicians.

The Supreme Court rejected the Fourteenth Court’s analysis. Instead, it held in Crump that, despite the fact that “differential diagnosis” is an accepted methodology used by treating physicians, a treating physician litigation opinion is still subject to the same rigorous examination as all other medical experts. Conducting this examination, the court concluded that the specifics of Crump supported the use of differential diagnosis in that specific case.

Even though the Texas Supreme Court rejected the Fourteenth Court’s analysis, neither courtshowed any hint of discomfort with science. The Fourteenth Court confidently and carefully tackled the difficult scientific issues raised by one expert’s use of differential diagnosis. The two courts shared a common goal of carefully scrutinizing the science.

The Posner critique has some merit. To the extent that lawyers or judges are ill-prepared to handle science and technology issues, a real problem exists. But the critique doesn’t apply equally to all courts and all judges.

Texas trial lawyers and judges can best respond to the Posner critique by continuing to defend scientific rigor in weighing the admissibility of expert opinion. Certainly, this is not a time for those who value our trial system to relax efforts to keep the evidence gate closed to unreliable science.

Jack Edward Urquhart is a partner in Beirne, Maynard & Parsons. He is a civil trial lawyer and member of the American Board of Trial Advocates, and he is experienced in litigation with difficult scientific and technological issues.