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Author - John Shepherd - Summer/Fall 1998

Case Purpose The Daubert Case approaches several issues:

• How can causation be identified in epidemiological data?
• How is evidence treated differently in the scientific community and in the legal system?
• How can we determine (as scientists, citizens, or judges) which evidence is reliable and which is not?
• What is the role of peer review and peer critique in science?

Relation to Texts The Daubert case is discussed in Angell (Chapter 5, pp 125 et seq.) in the context of breast cancer class action product liability lawsuits. The court decisions hinge on the interpretation of what constitutes 'consensuality' (and reliability), which is discussed in Ziman (RK, 1.4). The amici briefs also raise issues of authority and the sociology of dissent in the sciences (Ziman RK 6.1, 6.3, 6.5) Ziman (ISS) discusses relevant ideas in 4.4 (How do scientific papers get published?), 4.5 (selection by peer review), 8.4 (science as a social enterprise), and 8.5 (establishing a consensus).  These decisions also make a useful followup to Bronowski's discussion of the social mores of science ('The Sense of Human Dignity') by showing that the demography of the science community with its necessary respect for dissent is not as neat and tidy as one might be led to believe.

Description of Case Materials This case is built around a product liability suit filed against Merrell-Dow, which was appealed to the US Supreme Court in 1992.

• Science in the Courtroom is a web publication that was assigned as a final review of the topic when I did the case.  It makes a useful starting point for faculty considering use of the case.
• Sharply edited excerpts of court decisions leading up to the Supreme Court case.
• 1992 Daubert v Merrell-Dow Supreme Court case materials
  • Briefs filed by litigants and some friends of the court (sharply edited for brevity).
  • Supreme Court opinion written mostly by Justice Blackmun.  (Unedited!).

Case Use This best stretches over several 50-minute class periods (I used 4 meetings in Fall 1998).  The students are first introduced to the issues of product liability and the role of expert testimony by review the decisions of the District and appellate courts.  Then they are assigned roles in the case brought to the Supreme Court.  One class is devoted to arguing the case from their assigned roles: the central issues are 1) what constitutes reliable scientific evidence and 2) how peer review and consensus in the scientific community are related to reliability.  To bring closure, they read the Supreme Court decision and a general review article.

Reference List  See the annotated list on the reference page.