Dr. Huber describes  phantom  risks as those tending to hover indefinitely, never to crystallize. He argues that legal procedures should optimally lead\u27 to closure and eliminate unwarranted fears

Huber, Peter W.

English

University of New Hampshire

RISK: Health, Safety & Environment (1990-2002)
Volume 6 | Number 2 Article 6
March 1995
Coping with Phantom Risks in the Courts
Peter W. Huber
Follow this and additional works at: https://scholars.unh.edu/risk
Part of the Law Commons, Life Sciences Commons, Physical Sciences and Mathematics
Commons, and the Social and Behavioral Sciences Commons
This Conference Paper is brought to you for free and open access by the University of New Hampshire – School of Law at University of New
Hampshire Scholars' Repository. It has been accepted for inclusion in RISK: Health, Safety & Environment (1990-2002) by an authorized editor of
University of New Hampshire Scholars' Repository. For more information, please contact ellen.phillips@law.unh.edu.
Repository Citation
Peter W. Huber, Coping with Phantom Risks in the Courts, 6 RISK 111 (1995).
Coping with Phantom Risks in the Courts*
Peter W. Huber**
"Phantom risk" is a terribly value laden term. In contrast to risks
that get nailed down, e.g. smoking and thalidomide, it describes risks
that tend to hover indefinitely in the background and never seem to
crystallize. Phantom risks tend to arouse suspicion, but the carcass is
never found. The key to dealing with these risks lies in the procedures
employed.
Federal and state courts apply different rules to scientific evidence.
The Federal Rules of Evidence are looked upon, however, as the
benchmark for the admission of evidence in the courts.
Before the Federal Rules of Evidence were codified, federal courts
applied the Frye test.1 It held that propositions garbed as science, to
be presented by expert witnesses, must have attained some level of
"general acceptance" in a larger scientific community. In contrast, the
Federal Rules of Evidence, codified in 1975, appeared to set up looser
requirements for admissible expert testimony.
After the rules were codified, some argued that Frye had been
superseded, that "scientific" evidence was thereafter to be admitted
very liberally. Another school of thought, however, held that the
framers of the Federal Rules intended to leave Frye intact.
The rationale for a "let-it-all-in" approach is what I think of as the
"Galileo" argument. Even if scientist X is the only person who believes a
theory, and, even if scientist X doesn't publish or defend it publicly, his
testimony should still be admitted into court. Someone has to be
"first," after all. If evidence is excluded, some important truths will be
lost. Scientists such as X may be dismissed as mavericks or "out of the
* Based on a presentation at an October 1994 conference in Concord, NH. Jennifer
A. Kispert & Adam C. Solomon prepared this summary.
** Dr. Huber is a Senior Fellow of the Manhattan Institute for Policy Research. He
received his Ph.D. (Mechanical Engineering) from the Massachusetts Institute of
Technology and his J.D. from Harvard Law School.
1 Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923).
6 Risk: Health, Safety & Environment 111 [Spring 1995]
mainstream" but may still be right. The consensus may prove wrong.
However, potential benefits of let-it-all-in procedures must be weighed
against potential costs of accepting bad science. When bad science is
admitted, and falsehoods are certified by the judicial process as truths,
positive harm can result.
The ultimate "science court" in the U.S. is the U.S. Supreme Court.
There are no scientists on it. Yet the Court nonetheless defines "science"
through rules of evidence that have to be broad enough to apply to
everything from psychiatric evidence to whether creationism is science
or religion.
The Supreme Court recently addressed such issues in Daubert.
2
The case involved the morning sickness drug, Bendectin, used by some
30 million pregnant women between 1956 and 1983. In the 1970's, an
Australian physician, William McBride, who played a role in publicizing
the thalidomide tragedy, claimed to have found from tests on rabbits,
that Bendectin was a weak teratogen (could cause limb defects in
fetuses), though not as bad as thalidomide. McBride's claims were
publicized on the front page of the National Enquirer and led to a
cascade of litigation. Thousands of claims were consolidated into a class
action. Although the FDA reaffirmed the safety of Bendectin, citing'
numerous epidemiological studies, some researchers still claimed a
weak association with birth defects.
The fundamental question addressed in Daubert was: What
standard should federal courts use in deciding whether to admit such
testimony, outside the mainstream of science and unpublished in any
scientific journal? What did the new Federal Rules of Evidence require?
"Let it all in" or something more limited?
Spin-doctors from both sides claimed victory after the Supreme
Court handed down its Daubert decision. The opinion discusses the
meaning of "scientific knowledge" - and how to distinguish "scientific
knowledge" from other forms of knowledge, ignorance or superstition.
Daubert discusses factors that federal judges should consider in
deciding whether proffered expert testimony should be admitted into
court. It holds that judges may look to validation, peer review, potential
2 Daubert v. Merrell Dow Pharmaceuticals, 113 S.Ct. 2786 (1993).
Huber: Coping with Phantom Risks 113
error, general acceptance, testability and falsifiability. However,
dissenting Justices Rehnquist and Stevens argued that this would have
federal judge inappropriately performing as "amateur scientists."
Cases decided in the aftermath of Daubert generally read the
Supreme Court decision as maintaining a reasonably strict standard for
what constitutes "scientific knowledge." With regard to Bendectin,
itself, most courts have continued to exclude the types of evidence
offered in Daubert. Toxic tort cases have excluded plaintiffs' evidence,
9 to 2. In traditional tort cases, by contrast, e.g. car accidents, federal
courts have been willing to admit most scientific evidence. DNA
evidence has been consistently admitted, but psychiatric evidence has
been viewed more skeptically.
The underlying debate is still very much alive. It continues to turn
on the comparative risks of false positives and false negatives. What will
we lose by excluding evidence because we're too skeptical; what will we
lose by being too credulous?
This is not a Constitutional debate about the right to jury trial. All
rules of evidence exclude evidence from juries. The judge's role is to
make sure only reliable, probative evidence is presented. Nor is this a
broad debate about freedom of speech or of scientific inquiry.
Individual scientists can still say what they want or study what they
like. They are limited only in what they can say before juries in civil and
criminal trials. Free speech and scientific progress will not be stifled by
enforcing serious standards for science in this limited forum.
The real debate is to what extent scientists will be required to
validate their claims with other scientists before peddling them in court.
Requiring scientists to write down their claims and expose them to
scientific peers for possible rejection, before offering them in court, is
not suppression. It is a vindication of the scientific process.
3
3 Subsequent to Dr. Huber's talk, the U.S. Court of Appeals, on remand,
reconsidered plaintiffs' evidence in Daubert. Having done so, it again concluded that
the evidence should not be admitted. 43 F.3d 1311 (9th Cir. 1995). [Ed.]
6 R;Ar- HPqth. &,ftv& Environment 111 [Svring 1995]
Become a founding member of
A professional organization broadly concerned with
the relationship between risk analysis and public policy
V Membership categories
El Full-time student -$US 25.00
E) Professional $US 45.00
Outside Canada & Mexico, please add $US 10.00 surface or $US 32.00 airmail.
V Meeeting ballot
Please rank your preferences, with 1 highest.
_ March 1996, Tampa FL
_ March 1996, Washington DC
Mid-September 1997, Concord NH
- Mid-September 1997, Washington DC
V Please
Send a copy of this page, with check payable to RAPA, to:
Carol Ruh, Assistant Secretary-Treasurer, RAPA
Franklin Pierce Law Center
2 White Street; Concord, NH 03301
(603) 228-1541; fax 224-3342
Name
Title
Address
Phone/fax
* See pp. 95 and 164fbr more information.
Rs Aa4meae & Polic 4ssoeat&


Coping with Phantom Risks in the Courts

UNH Scholars' Repository

RISK: Health, Safety & Environment (1990-2002)Volume 6 | Number 2 Article 6March 1995Coping with Phantom Risks in the CourtsPeter W. HuberFollow this and additional works at: https://scholars.unh.edu/riskPart of the Law Commons, Life Sciences Commons, Physical Sciences and MathematicsCommons, and the Social and Behavioral Sciences CommonsThis Conference Paper is brought to you for free and open access by the University of New Hampshire – School of Law at University of NewHampshire Scholars' Repository. It has been accepted for inclusion in RISK: Health, Safety & Environment (1990-2002) by an authorized editor ofUniversity of New Hampshire Scholars' Repository. For more information, please contact ellen.phillips@law.unh.edu.Repository CitationPeter W. Huber, Coping with Phantom Risks in the Courts, 6 RISK 111 (1995).Coping with Phantom Risks in the Courts*Peter W. Huber**"Phantom risk" is a terribly value laden term. In contrast to risksthat get nailed down, e.g. smoking and thalidomide, it describes risksthat tend to hover indefinitely in the background and never seem tocrystallize. Phantom risks tend to arouse suspicion, but the carcass isnever found. The key to dealing with these risks lies in the proceduresemployed.Federal and state courts apply different rules to scientific evidence.The Federal Rules of Evidence are looked upon, however, as thebenchmark for the admission of evidence in the courts.Before the Federal Rules of Evidence were codified, federal courtsapplied the Frye test.1 It held that propositions garbed as science, tobe presented by expert witnesses, must have attained some level of"general acceptance" in a larger scientific community. In contrast, theFederal Rules of Evidence, codified in 1975, appeared to set up looserrequirements for admissible expert testimony.After the rules were codified, some argued that Frye had beensuperseded, that "scientific" evidence was thereafter to be admittedvery liberally. Another school of thought, however, held that theframers of the Federal Rules intended to leave Frye intact.The rationale for a "let-it-all-in" approach is what I think of as the"Galileo" argument. Even if scientist X is the only person who believes atheory, and, even if scientist X doesn't publish or defend it publicly, histestimony should still be admitted into court. Someone has to be"first," after all. If evidence is excluded, some important truths will belost. Scientists such as X may be dismissed as mavericks or "out of the* Based on a presentation at an October 1994 conference in Concord, NH. JenniferA. Kispert & Adam C. Solomon prepared this summary.** Dr. Huber is a Senior Fellow of the Manhattan Institute for Policy Research. Hereceived his Ph.D. (Mechanical Engineering) from the Massachusetts Institute ofTechnology and his J.D. from Harvard Law School.1 Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923).6 Risk: Health, Safety & Environment 111 [Spring 1995]mainstream" but may still be right. The consensus may prove wrong.However, potential benefits of let-it-all-in procedures must be weighedagainst potential costs of accepting bad science. When bad science isadmitted, and falsehoods are certified by the judicial process as truths,positive harm can result.The ultimate "science court" in the U.S. is the U.S. Supreme Court.There are no scientists on it. Yet the Court nonetheless defines "science"through rules of evidence that have to be broad enough to apply toeverything from psychiatric evidence to whether creationism is scienceor religion.The Supreme Court recently addressed such issues in Daubert.2The case involved the morning sickness drug, Bendectin, used by some30 million pregnant women between 1956 and 1983. In the 1970's, anAustralian physician, William McBride, who played a role in publicizingthe thalidomide tragedy, claimed to have found from tests on rabbits,that Bendectin was a weak teratogen (could cause limb defects infetuses), though not as bad as thalidomide. McBride's claims werepublicized on the front page of the National Enquirer and led to acascade of litigation. Thousands of claims were consolidated into a classaction. Although the FDA reaffirmed the safety of Bendectin, citing'numerous epidemiological studies, some researchers still claimed aweak association with birth defects.The fundamental question addressed in Daubert was: Whatstandard should federal courts use in deciding whether to admit suchtestimony, outside the mainstream of science and unpublished in anyscientific journal? What did the new Federal Rules of Evidence require?"Let it all in" or something more limited?Spin-doctors from both sides claimed victory after the SupremeCourt handed down its Daubert decision. The opinion discusses themeaning of "scientific knowledge" - and how to distinguish "scientificknowledge" from other forms of knowledge, ignorance or superstition.Daubert discusses factors that federal judges should consider indeciding whether proffered expert testimony should be admitted intocourt. It holds that judges may look to validation, peer review, potential2 Daubert v. Merrell Dow Pharmaceuticals, 113 S.Ct. 2786 (1993).Huber: Coping with Phantom Risks 113error, general acceptance, testability and falsifiability. However,dissenting Justices Rehnquist and Stevens argued that this would havefederal judge inappropriately performing as "amateur scientists."Cases decided in the aftermath of Daubert generally read theSupreme Court decision as maintaining a reasonably strict standard forwhat constitutes "scientific knowledge." With regard to Bendectin,itself, most courts have continued to exclude the types of evidenceoffered in Daubert. Toxic tort cases have excluded plaintiffs' evidence,9 to 2. In traditional tort cases, by contrast, e.g. car accidents, federalcourts have been willing to admit most scientific evidence. DNAevidence has been consistently admitted, but psychiatric evidence hasbeen viewed more skeptically.The underlying debate is still very much alive. It continues to turnon the comparative risks of false positives and false negatives. What willwe lose by excluding evidence because we're too skeptical; what will welose by being too credulous?This is not a Constitutional debate about the right to jury trial. Allrules of evidence exclude evidence from juries. The judge's role is tomake sure only reliable, probative evidence is presented. Nor is this abroad debate about freedom of speech or of scientific inquiry.Individual scientists can still say what they want or study what theylike. They are limited only in what they can say before juries in civil andcriminal trials. Free speech and scientific progress will not be stifled byenforcing serious standards for science in this limited forum.The real debate is to what extent scientists will be required tovalidate their claims with other scientists before peddling them in court.Requiring scientists to write down their claims and expose them toscientific peers for possible rejection, before offering them in court, isnot suppression. It is a vindication of the scientific process.33 Subsequent to Dr. Huber's talk, the U.S. Court of Appeals, on remand,reconsidered plaintiffs' evidence in Daubert. Having done so, it again concluded thatthe evidence should not be admitted. 43 F.3d 1311 (9th Cir. 1995). [Ed.]6 R;Ar- HPqth. &,ftv& Environment 111 [Svring 1995]Become a founding member ofA professional organization broadly concerned withthe relationship between risk analysis and public policyV Membership categoriesEl Full-time student -$US 25.00E) Professional $US 45.00Outside Canada & Mexico, please add $US 10.00 surface or $US 32.00 airmail.V Meeeting ballotPlease rank your preferences, with 1 highest._ March 1996, Tampa FL_ March 1996, Washington DCMid-September 1997, Concord NH- Mid-September 1997, Washington DCV PleaseSend a copy of this page, with check payable to RAPA, to:Carol Ruh, Assistant Secretary-Treasurer, RAPAFranklin Pierce Law Center2 White Street; Concord, NH 03301(603) 228-1541; fax 224-3342NameTitleAddressPhone/fax* See pp. 95 and 164fbr more information.Rs Aa4meae & Polic 4ssoeat&

https://scholars.unh.edu/cgi/viewcontent.cgi?article=1232&amp;context=risk

Coping with Phantom Risks in the Courts

Abstract

Similar works

Full text

Available Versions

University of New Hampshire

UNH Scholars' Repository

University of New Hampshire