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Who Speaks for Science in Court?
by Peter Huber
Peter Huber is a lawyer. This file contains excerpts from posted on the Internet. It was a treatise on the Federal Rules of Evidence as used in civil and criminal court cases and an upcoming ruling from the Supreme Court to define who, how and what will be accepted by judges in judicial cases.
What follows is a small portion of his opening remarks as background and then the comments he made about the unscientific nature of obstetrical care, what he refers to as the ""gadgets and knives" phenomenon, perhaps most evident in obstetrics today".....
Mr. Huber: A case was argued before the Supreme Court four weeks ago, Daubert v. Merrell Dow Pharmaceuticals: the big science-in-court case of the decade. There hasn't been a case like it since the Federal Rules of Evidence were enacted in 1975. ... the Justices probably won't have another big expert-witness/rules-of-evidence case for another decade. This is the defining case of our era.
What is before the court are two Federal Rules of Evidence, Rules 702 and 703, which contain the words "scientific knowledge", specifically with respect to defining what an "expert witness" is allowed to testify about. As you may know, expert witnesses are privileged interlopers in court. Unlike all other witnesses, they didn't have to see the accident, or be there, or hear it, or smell, or taste, or have any first-hand experience. They simply have had to review the context of what happened and have some body of expertise or scientific knowledge. Then they are allowed to speak to juries and judges on subjects that no other witness would be allowed to address in court.
Discontinuety --to read Full Text of document on the Internet
Then we have what I call the "gadgets and knives" phenomenon, perhaps most evident in obstetrics today, although there are many other examples of it. It's the allure of the techno-fix. We have too many birth defects.We'd like the incidence of birth defects to be zero. It isn't. It's actually appallingly high for anybody who's recently had a baby or is expecting to have one. A few percent of all births result in visible birth defects of some kind, and a smaller fraction of that are serious birth defects. The desire to have a techno-fix for that is huge. We desperately wish we had a gadget, something preferably simple and cheap, we could hook up which would stop those birth defects.
The entire practice of obstetrics in this country has been transformed in the last 15 years on the assumption that lawyers could somehow identify fixes that doctors had not quite grasped.
The two fixes that seemed attractive and are litigated literally daily are 1) use of electronic fetal monitors (EFMs), which monitor contractions and fetal heartbeat during delivery, and 2) the Cesarean section, the aggressive intervention to deliver the baby faster or less traumatically by knife than abdominal muscles can the old-fashioned way. We have Cesarean sections at a rate four times higher than anybody else in the world. The electronic fetal monitor has been peddled fantastically well by litigants and lawyers, but the incidence of birth defects has not changed. The incidence of cerebral palsy is as high as ever. We've actually accomplished no improvement whatsoever, yet we have completely changed the environment for obstetrics with this sort of legally peddled optimism about what gadgets and knives can do.
It has a self-fulfilling character. You see this in the aviation industry. The more gadgets there are around, the more opportunity there is for one of them to have malfunctioned, or not to have been used properly, or to have had a spurious reading. Most of the time, of course, that makes not a bit of difference. It turns out that whether you use your electronic fetal monitor or not has no correlation whatsoever with the health of the child. But if you have an EFM gadget on the premises and it wasn't working, or the intern didn't know how to operate it properly, or the trace hasn't been recorded properly, then you have an independent reason for litigating on the theory that, had the machine worked, the accident would not have occurred.