Transcript www.bren.ucsb.edu

SCIENCE IN THE COURTS
Climate Change and Other Issues
Ernest Getto, Latham & Watkins LLP
October 27, 2011
Science in the Court:
WHY THERE?
I. Scientific issues permeate the law
A.
B.
C.
D.
E.
F.
G.
H.
Climate change
Pharmaceuticals
Chemical exposures (“toxic torts”)
CERCLA
IP – patents
Criminal law – DNA
Land Use – EIS
Environmental catastrophes
II. Judges Need Help:
Federal Reference Manual
“In this age of science, science should
expect to find a warm welcome, perhaps a
permanent home, in our courtrooms. The
reason is a simple one. The legal disputes
before us increasingly involve the principles
and tools of science. Proper resolutions of
those disputes matters not just to the
litigants, but also to the general public—
those who live in our technologically complex
society and whom the law must serve. Our
decisions should reflect a proper scientific
and technical understanding so that the law
can respond to the needs of the public”
~ Stephen Breyer, Associate Justice of the Supreme Court of the United States
III. How does science get into
evidence
A.
B.
C.
D.
E.
Expert Testimony
Lay Testimony
Court appointed experts
Government Reports
Peer Reviewed Literature
IV. What standards are applied to
expert testimony?
A. Frye Rule – “general acceptance” (1923)
1. Applied for decades in federal and state
courts
2. Lead to confusion, inconsistent rulings
B. Federal Courts - Daubert, Joiner and
Kumho (1993-1999)
1. U.S. Supreme Court rewrote the rules
2. Courts must be “gatekeepers”
3. Scientific theory or technique must be “reliable”
B. Federal Courts - Daubert, Joiner and
Kumho (1993-1999) (continued)
4. Whether the scientific theory/ technique
-- “can be (and has been) tested”
-- “has been subjected to peer review and publication”
-- “has a known or potential rate of error and the
existence and maintenance of standards controlling
the technique’s operation”
-- “has widespread acceptance”
-- “employs standards controlling the technique’s
operation”
C. California
1. “Testimony in the form of an opinion is
limited to such an opinion as is based on
matter that is of a type that reasonably
may be relied upon by an expert in
forming an opinion upon the subject to
which his testimony relates.”
C. California (continued)
2. The court “must exclude” expert testimony
that does not comply with this
3. The expert opinion must be based on facts
and not speculation
D. Qualifications of Expert
1. “Knowledge, skill, training, experience, or
education.”
2. Needs only one trait
3. Prior experience as an expert witness,
standing alone, is insufficient
4. Recent increased scrutiny of experts due
to fabricating or inflating qualifications
D. Qualifications of
Expert (cont.)
5. Collateral attack on
credentials
a. “Scientific” article
by scientists
and lawyers
b. Unapproved by
scientist
V. Does expert testimony that there
is climate change caused by human
conduct get into evidence?
A. Climate change happening
1. theory tested?
2. peer-reviewed publication?
3. error rate?
4. widespread acceptance?
5. standards?
6. speculation?
B. Climate change caused by human
conduct
1. theory tested?
2. peer-reviewed publication?
3. accepted?
4. speculation?
C. Plaintiffs damaged by actions of
defendants?
1. criteria satisfied?
2. speculation?
D. Green Mt. Chrysler Plymouth Dodge Jeep
v. Crombie -- Vermont case (2007)
1. Auto companies sought relief from GHG
emission standards for new cars
2. State had expert testify as to link between
climate change and man-made emissions.
3. Court found expert’s testimony to be based on
“sufficient facts and data and reliable methods,
applied reliably to the facts.”
D. Green Mt. Chrysler Plymouth Dodge Jeep
v. Crombie -- Vermont case (2007) (continued)
4. “Monumental gravity” of the “situation” shouldn’t
preclude testimony
5. Error rate and testability don’t matter because
expert testimony is of a “different nature”
6. Lack of peer review and widespread acceptance,
while relevant, are “not determinative”
D. Green Mt. Chrysler Plymouth Dodge Jeep
v. Crombie -- Vermont case (2007) (continued)
7. Court found other factors important
a. testimony based on research independent of
litigation
b. alternative explanations accounted for
c. same intellectual rigor in courtroom as in field
of study
d. non-judicial uses of subject of testimony
e. whether expert’s discipline lacks reliability
D. Green Mt. Chrysler Plymouth Dodge Jeep v.
Crombie -- Vermont case (2007) (continued)
8. What result with “climate change skeptic” experts?
9. Would “Climategate” and the IPCC controversy
change this result?
10. Would CERN data do so?
11. Would Hal Lewis’ resignation letter to American
Physical Society re “Pseudoscience” be a factor?
VI. Other disciplines (air dispersion
modeling, hydrogeology, exposure
and causation)
A. Science is more settled
B. More peer reviewed literature
C. Issues more familiar to court
VII. Junk Science Exposed
A. Beverly Hills High School case
1. Benzene from oil wells
2. Plaintiffs’ expert modeled exposure
a. used benzene content higher than any oil in
world
b. had more oil spilled than produced
c. emission at site = ¼ of total emissions in LA
basin
d. expert misread lab report on measured
concentrations in oil
e. result?
B. Medical Causation
1. Six different cancers
2. General Causation
a. Can benzene cause these cancers
b. Plaintiffs experts admitted 100
different types of cancer with different
causes
B. Medical Causation
(continued)
3. Specific Causation
a. Did plaintiffs exposures
cause their cancers
b. “very, very, very miniscule”
Plaintiffs Claim Trivial Benzene Exposure
PPB
1600
(Parts per
Billion)
1400
1200
“1 to 1.6 parts per million [1000-1600 parts per billion],
. . . with benzene, that’s where I would be concerned.”
-- Dr. Nachman Brautbar
1000
800
600
400
“10 parts per billion is very, very, very miniscule.”
-- Dr. Nachman Brautbar
200
0
Lee
Laurie
Day
Shapiro
Gross
Frankel
(10)
(9.23-11.46)
(5.21-10.28)
(4.05-5.41)
(4.56-11.65)
(4.05-16.75)
(4.61-16.75)
Davidson
Tackaberry
Busch
Shore
Gordon
Revel
(4.05-5.41)
(9.23-11.46)
(5.26)
(4.56-6.96)
(4.05-6.96)
(2.16-16.75)
B. Medical Causation
(continued)
3. Specific Causation
c. Plaintiff epidemiologist’s
draft report does not
allow inferences re
cancers
B. Medical Causation (continued)
3. Specific Causation
d. Plaintiffs expert toxicologist couldn’t identify
studies supporting causation
Plaintiffs’ Experts Rely on Results that Are
Not Statistically Significant
Divine (1987)
Wong (1987)
LaVecchia (1989)
Miligi (2006)
Yin (1989)
B. Medical Causation (continued)
3. Specific Causation
e. Summary Judgment:
JUNK SCIENCE EXCLUDED
Expert Testimony Do’s & Don'ts
Do
Don’t
1. Prepare
1. Be arrogant
2. Play it straight
2. Be combative
3. Keep it simple
3. Advocate
4. Know your
publications and file
5. Listen
6. Use technology
Sometimes you get lucky. . . . .
Watch what you write. . . .