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What standard for science in court?

As Florida’s top court debates the governing standard for admission of scientific evidence in court, the spotlight has once again been thrown on the dilemma facing judges when trying to pick through multiple expert testimonies, often containing questionable and conflicting conclusions.

This closely watched case hinges on the importance of ensuring high standards of admissible evidence and will impact the thorny issue of whether the traditional Frye, or stricter Daubert, standard should govern the acceptance of expert testimony in court. It’s a decision that is likely to have major implications for the quality of legal rulings in the state and could later be followed in other hold-outs like New York and California.

Frye versus Daubert

Nominally, the Florida Supreme Court is considering whether credible expert testimony backed up a verdict in favor of Robert DeLisle, who won a $8 million lawsuit against Crane Co. and other defendants. But the real fight here is about whether or not the state legislature will replace the supreme court’s standard for scientific testimony in court with the stricter Daubert standard.

Established in 1923, the Frye standard remained the de facto reference for determining expert witness admissibility until it was superseded in the majority of federal and state courts 70 years later by the Daubert standard. Under Daubert, the judge is responsible for determining the relevance and reliability of evidence – unlike Frye, which requires merely that any new or untested evidence is based on accepted scientific principles.

The Daubert system thus ushered in a new set of standards in which the judge would act as “the arbiter, the gatekeeper of good and bad science,” as Villanova University law professor David Caudill said in an interview with the Outline. New criteria for judges to assess when considering whether to admit an expert’s testimony included whether their methodology was accepted within the scientific community and had appeared in peer-reviewed journals. The overall aim of the new standards was to exclude twisted, questionable, or “junk science” from the court of law.

Of course, there are still some flaws within the Daubert system, which impels judges to assess the reliability of experts with little background in the discipline at hand. And the widespread use of DNA forensic evidence, which overturned a number of wrongful verdicts, laid bare the fact that faulty science could still find its way into the courtroom even post-Daubert. Yet overall, the current system is far better than it was before Daubert, when judges often took it for granted that experts were trustworthy.

The great glyphosate debate

A closer look at a major Daubert evaluation currently taking place in US District Court in San Francisco shows why this otherwise obscure Florida suit is so significant, showing as it does the importance of testing the quality of scientific evidence before it is admitted for consideration.

Over the past few weeks, US District Judge Vince Chhabria has heard from roughly a dozen expert witnesses, including oncologists, statisticians, and epidemiologists, who are involved in a lawsuit claiming that the world’s most popular herbicide, Roundup, causes cancer. The lawsuit groups together claims from more than 700 farmers, gardeners, and landscapers who say that their exposure to glyphosate, the active ingredient in Roundup, led to their non-Hodgkin lymphoma.

Following the hearings, however, the judge has pronounced that the opinions of the experts for the plaintiffs are “shaky” – which could considerably shape the lineup of witnesses who are allowed to testify and even whether or not the case goes to trial. At this point, he has indicated that only Beate Ritz, a public health professor at UCLA, may be allowed to testify on behalf of the plaintiffs. However, he still cautioned that her conclusion that glyphosate is carcinogenic is “dubious.”

Ritz and the other plaintiffs’ experts rest their case on a 2015 evaluation by the WHO’s International Agency for Research on Cancer (IARC) in which glyphosate was declared a “probable” human carcinogen. But the “science” upon which this report was based is far from universally embraced.

Indeed, Roundup’s maker, Monsanto, is countering the evidence with the results of the large-scale, US government-funded Agricultural Health Study, which tracked the health of more than 50,000 farmers in North Carolina and Iowa over a period of several decades. The latest update of the study, from 2017, has categorically refuted IARC’s conclusion that glyphosate is carcinogenic. In addition, the US Environmental Protection Agency, among others, has stated in its most recent evaluation of glyphosate that it poses no risk to human health.

Sticking to the facts

Yet with anti-herbicide activists having seized on IARC’s outstanding evaluation, the outcry around their conclusion that glyphosate is carcinogenic has been blown far out of proportion. With the affair having made its way to a court of law, the Daubert standard now means that there will finally be a neutral arbiter of the evidence at hand.

Though Daubert standards apply at the federal level, however, the question now becomes whether holdout states like Florida will follow suit. After all, with legal rulings often contingent on little more than the testimony of “expert” witnesses, it is more important than ever that their statements be held to the highest standards.

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About Eliot Bakker

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