SCIENCE IN THE COURTSSCIENCE IN THE COURTSClimate Change and Other IssuesClimate Change and Other Issues

Ernest Getto, Latham & Watkins LLPErnest Getto, Latham & Watkins LLPOctober 27, 2011October 27, 2011

Science in the Court:Science in the Court:

WHY THERE?WHY THERE?

I. Scientific issues permeate the lawI. Scientific issues permeate the law

A.A. Climate changeClimate changeB.B. PharmaceuticalsPharmaceuticalsC.C. Chemical exposures (“toxic torts”)Chemical exposures (“toxic torts”)D.D. CERCLACERCLAE.E. IP – patentsIP – patentsF.F. Criminal law – DNACriminal law – DNAG.G. Land Use – EISLand Use – EISH.H. Environmental catastrophesEnvironmental catastrophes

II. Judges Need Help: II. Judges Need Help: Federal Reference ManualFederal Reference Manual

““In this age of science, science should In this age of science, science should expect to find a warm welcome, perhaps a expect to find a warm welcome, perhaps a permanent home, in our courtrooms. The permanent home, in our courtrooms. The reason is a simple one. The legal disputes reason is a simple one. The legal disputes before us increasingly involve the principles before us increasingly involve the principles and tools of science. Proper resolutions of and tools of science. Proper resolutions of those disputes matters not just to the those disputes matters not just to the litigants, but also to the general public—litigants, but also to the general public—those who live in our technologically those who live in our technologically complex society and whom the law must complex society and whom the law must serve. Our decisions should reflect a proper serve. Our decisions should reflect a proper scientific and technical understanding so scientific and technical understanding so that the law can respond to the needs of the that the law can respond to the needs of the public”public”

~ Stephen Breyer, Associate Justice of the Supreme Court of the United States~ Stephen Breyer, Associate Justice of the Supreme Court of the United States

III. How does science get into III. How does science get into evidenceevidence

A.A. Expert TestimonyExpert TestimonyB.B. Lay TestimonyLay TestimonyC.C. Court appointed expertsCourt appointed expertsD.D. Government ReportsGovernment ReportsE.E. Peer Reviewed LiteraturePeer Reviewed Literature

IV. What standards are applied to IV. What standards are applied to expert testimony?expert testimony?

A.A. Frye Rule – “general acceptance” (1923)Frye Rule – “general acceptance” (1923) 1. Applied for decades in federal and state1. Applied for decades in federal and state

courts courts

2. Lead to confusion, inconsistent rulings2. Lead to confusion, inconsistent rulings

B.B. Federal Courts - Federal Courts - Daubert, Joiner and Daubert, Joiner and KumhoKumho (1993-1999) (1993-1999)

1. U.S. Supreme Court rewrote the rules 1. U.S. Supreme Court rewrote the rules

2. Courts must be “gatekeepers” 2. Courts must be “gatekeepers”

3. Scientific theory or technique must be “reliable” 3. Scientific theory or technique must be “reliable”

B.B. Federal Courts - Federal Courts - Daubert, Joiner and Daubert, Joiner and KumhoKumho (1993-1999) (1993-1999) (continued)(continued)

4. Whether the scientific theory/ technique4. Whether the scientific theory/ technique -- “can be (and has been) tested”-- “can be (and has been) tested”

-- “has been subjected to peer review and -- “has been subjected to peer review and publication” publication”

-- “has a known or potential rate of error and the-- “has a known or potential rate of error and the existence and maintenance of standards controlling existence and maintenance of standards controlling

the technique’s operation” the technique’s operation”

-- “has widespread acceptance” -- “has widespread acceptance”

-- “employs standards controlling the technique’s-- “employs standards controlling the technique’s operation” operation”

C.C. CaliforniaCalifornia

1. “Testimony in the form of an opinion is1. “Testimony in the form of an opinion is limited to such an opinion as is based limited to such an opinion as is based

onon matter that is matter that is of a type that reasonablyof a type that reasonably may be relied upon may be relied upon by an expert inby an expert in forming an opinion upon the subject to forming an opinion upon the subject to which his testimony relates.” which his testimony relates.”

C.C. California California (continued)(continued)

2. The court 2. The court “must exclude“must exclude” ” expert expert testimonytestimony

that does not comply with this that does not comply with this

3. The expert opinion must be based on facts3. The expert opinion must be based on facts and not speculation and not speculation

D.D. Qualifications of ExpertQualifications of Expert

1. “Knowledge, skill, training, experience, or1. “Knowledge, skill, training, experience, or education.” education.”

2. Needs only one trait 2. Needs only one trait

3. Prior experience as an expert witness,3. Prior experience as an expert witness, standing alone, is insufficient standing alone, is insufficient

4. Recent increased scrutiny of experts due4. Recent increased scrutiny of experts due to fabricating or inflating qualifications to fabricating or inflating qualifications

D.D. Qualifications of Qualifications of Expert (cont.)Expert (cont.)

5. Collateral attack on5. Collateral attack on credentials credentials

a. “Scientific” a. “Scientific” articlearticle

by scientists by scientists and lawyers and lawyers

b. Unapproved byb. Unapproved by scientist scientist

V. Does expert testimony that there V. Does expert testimony that there is climate change caused by human is climate change caused by human

conduct get into evidence?conduct get into evidence?

A.A. Climate change happeningClimate change happening

1. theory tested?1. theory tested?

2. peer-reviewed publication?2. peer-reviewed publication?

3. error rate?3. error rate?

4. widespread acceptance?4. widespread acceptance?

5. standards?5. standards?

6. speculation?6. speculation?

B.B. Climate change caused by human Climate change caused by human conductconduct

1. theory tested?1. theory tested?

2. peer-reviewed publication?2. peer-reviewed publication?

3. accepted?3. accepted?

4. speculation?4. speculation?

C.C. Plaintiffs damaged by actions ofPlaintiffs damaged by actions ofdefendants? defendants?

1. criteria satisfied?1. criteria satisfied?

2. speculation?2. speculation?

D.D. Green Mt. Chrysler Plymouth Dodge Jeep Green Mt. Chrysler Plymouth Dodge Jeep v. Crombiev. Crombie -- Vermont case (2007) -- Vermont case (2007)

1. Auto companies sought relief from GHG1. Auto companies sought relief from GHG emission standards for new cars emission standards for new cars

2. State had expert testify as to link between2. State had expert testify as to link between climate change and man-made emissions. climate change and man-made emissions.

3. Court found expert’s testimony to be based on3. Court found expert’s testimony to be based on “sufficient facts and data and reliable “sufficient facts and data and reliable

methods,methods, applied reliably to the facts.” applied reliably to the facts.”

D.D. Green Mt. Chrysler Plymouth Dodge JeepGreen Mt. Chrysler Plymouth Dodge Jeepv. Crombiev. Crombie -- Vermont case (2007) -- Vermont case (2007) (continued)(continued)

4. “Monumental gravity” of the “situation” shouldn’t4. “Monumental gravity” of the “situation” shouldn’t preclude testimony preclude testimony

5. Error rate and testability don’t matter because5. Error rate and testability don’t matter because expert testimony is of a “different nature” expert testimony is of a “different nature”

6. Lack of peer review and widespread acceptance,6. Lack of peer review and widespread acceptance, while relevant, are “not determinative” while relevant, are “not determinative”

D.D. Green Mt. Chrysler Plymouth Dodge Jeep Green Mt. Chrysler Plymouth Dodge Jeep v. Crombiev. Crombie -- Vermont case (2007) -- Vermont case (2007) (continued)(continued)

7. Court found other factors important 7. Court found other factors important

a. testimony based on research independent ofa. testimony based on research independent of litigation litigation

b. alternative explanations accounted forb. alternative explanations accounted for

c. same intellectual rigor in courtroom as in fieldc. same intellectual rigor in courtroom as in field of study of study

d. non-judicial uses of subject of testimonyd. non-judicial uses of subject of testimony

e. whether expert’s discipline lacks reliabilitye. whether expert’s discipline lacks reliability

D.D. Green Mt. Chrysler Plymouth Dodge Jeep v. Green Mt. Chrysler Plymouth Dodge Jeep v. CrombieCrombie -- Vermont case (2007) -- Vermont case (2007) (continued)(continued)

8. What result with “climate change skeptic” experts? 8. What result with “climate change skeptic” experts?

9. Would “Climategate” and the IPCC controversy9. Would “Climategate” and the IPCC controversy change this result? change this result?

10. Would CERN data do so?10. Would CERN data do so?11. Would Hal Lewis’ resignation letter to American11. Would Hal Lewis’ resignation letter to American Physical Society re “Pseudoscience” be a factor? Physical Society re “Pseudoscience” be a factor?

VI. Other disciplines (air dispersion VI. Other disciplines (air dispersion modeling, hydrogeology, exposure modeling, hydrogeology, exposure

and causation)and causation)

A.A. Science is more settledScience is more settled

B.B. More peer reviewed literatureMore peer reviewed literature

C.C. Issues more familiar to courtIssues more familiar to court

VII. Junk Science ExposedVII. Junk Science Exposed

A.A. Beverly Hills High School caseBeverly Hills High School case

1. Benzene from oil wells1. Benzene from oil wells2. Plaintiffs’ expert modeled exposure2. Plaintiffs’ expert modeled exposure

a. used benzene content higher than any oil ina. used benzene content higher than any oil in world world b. had more oil spilled than produced b. had more oil spilled than produced c. emission at site = ¼ of total emissions in LAc. emission at site = ¼ of total emissions in LA basin basin d. expert misread lab report on measuredd. expert misread lab report on measured concentrations in oil concentrations in oil e. result?e. result?

B.B. Medical CausationMedical Causation

1. Six different cancers1. Six different cancers

2. General Causation2. General Causation

a. Can benzene cause these cancersa. Can benzene cause these cancers

b. Plaintiffs experts admitted 100b. Plaintiffs experts admitted 100 different types of cancer with different types of cancer with

differentdifferent causes causes

B.B. Medical CausationMedical Causation (continued)(continued)

3. Specific Causation3. Specific Causation

a. Did plaintiffs a. Did plaintiffs exposuresexposures

cause their cancers cause their cancers

b.b. “very, very, very “very, very, very miniscule”miniscule”

Plaintiffs Claim Trivial Benzene Exposure

0

200

400

600

800

1000

1200

1400

1600

Lee(9.23-11.46)

Davidson(4.05-5.41)

Laurie(5.21-10.28)

Tackaberry(9.23-11.46)

Day(4.05-5.41)

Busch(5.26)

Shapiro(4.56-11.65)

Shore(4.56-6.96)

Gross(4.05-16.75)

Gordon(4.05-6.96)

Frankel(4.61-16.75)

Revel(2.16-16.75)

“1 to 1.6 parts per million [1000-1600 parts per billion], . . . with benzene, that’s where I would be

concerned.”-- Dr. Nachman Brautbar

(10)

“10 parts per billion is very, very, very miniscule.” -- Dr. Nachman Brautbar

PPB(Parts per

Billion)

B.B. Medical CausationMedical Causation (continued)(continued)

3. Specific Causation3. Specific Causation

c. Plaintiff c. Plaintiff epidemiologist’sepidemiologist’s

draft report does not draft report does not allow inferences re allow inferences re cancers cancers

B.B. Medical Causation Medical Causation (continued)(continued)

3. Specific Causation3. Specific Causation

d. Plaintiffs expert toxicologist couldn’t identifyd. Plaintiffs expert toxicologist couldn’t identify studies supporting causation studies supporting causation

Plaintiffs’ Experts Rely on Results that Are Not Statistically Significant

LaVecchia (1989) Yin (1989)

Wong (1987) Miligi (2006)Divine (1987)

NOT

STATISTICALLY

SIGNIFICANT

NOT

STATISTICALLY

SIGNIFICANT

NOT

STATISTICALLY

SIGNIFICANT

NOT

STATISTICALLY

SIGNIFICANT

NOT

STATISTICALLY

SIGNIFICANT

B.B. Medical CausationMedical Causation (continued)(continued)

3. Specific Causation3. Specific Causation

e. Summary Judgment:e. Summary Judgment:

JUNK SCIENCE EXCLUDEDJUNK SCIENCE EXCLUDED

Expert Testimony Do’s & Don'tsExpert Testimony Do’s & Don'ts

DoDo1. Prepare1. Prepare

2. Play it straight2. Play it straight

3. Keep it simple3. Keep it simple

4. Know your4. Know your publications and publications and

filefile

5. Listen5. Listen

6. Use technology6. Use technology

Don’tDon’t1. Be arrogant1. Be arrogant

2. Be combative2. Be combative

3. Advocate3. Advocate

Sometimes you get Sometimes you get lucky. . . . .lucky. . . . .

Watch what you write. . . .Watch what you write. . . .