Asbestos experts argue on role of Daubert factors in asbestos litigation

Heather Isringhausen Gvillo Oct. 29, 2014, 8:22am

HARRISBURG, Pa. (Legal Newsline) – Toxic tort experts are in dispute over the proper employment of the Supreme Court’s Daubert ruling in regards to determining the sufficiency of evidence of causation and when it’s appropriate to address admissibility in asbestos cases.

The dispute arose out of an article written by Wake Forest University School of Law Professor Michael Green and The University of Houston Law Center Professor Joseph Sanders titled “Admissibility Versus Sufficiency: Controlling the Quality of Expert Witness Testimony in the United States,” which was presented at a Widener University School of Law Symposium.

Their article discusses the idea that beyond the basic factors established by Daubert, sufficiency of the evidence is important when determining whether expert testimony should be allowed.

In Daubert, the Supreme Court established four non-exclusive factors to determine whether expert testimony met the threshold of scientific knowledge:

-The known or potential rate of error;

-Whether the hypothesis of the plaintiff’s theory was subject to testing;

-Peer review and publication; and

-Whether the plaintiff’s premise had received general acceptance in the scientific community.

Professor Aaron D. Twerski and 2014 graduate Lior Sapir of Brooklyn Law School wrote an article for the Widener Law Journal titled “Sufficiency of the Evidence Does Not Meet Daubert Standards: A Critique of the Green-Sanders Proposal,” in response to the article.

“Their thesis is that what courts have been doing by purporting to follow the dictates of Daubert is deciding issues of admissibility with little regard for the Daubert criteria, but rather based on the sufficiency of the evidence to infer a causal connection and the harm alleged,” Twerski and Sapir wrote.

Green and Sanders defended their arguments in a reply to the opposing professors, stating that Twerski and Sapir are “concerned that employing a sufficiency analysis to determine the admissibility of expert testimony will dilute the rigor of a Daubert analysis. The formal structure of Daubert, including apparently its four factors, will better keep frivolous or weak cases from being submitted to the jury.”

The professors agree that judges are less likely to overturn a jury verdict than they are to rule against the admissibility of an opposing side and that Daubert appropriately permits screening cases at the pretrial process.

However, according to Green and Sanders’ arguments, they claim some of the Daubert factors are “largely inappropriate for determining the admissibility of a scientific expert’s opinion on causation” in an asbestos case.

They clarify, stating that the Daubert factors are only unhelpful in toxic tort cases as they are “irrelevant to the analysis required.”

Green and Sanders argue that in its subsequent opinions, the Supreme Court “turned its attention away from these factors and toward the question of whether the expert’s testimony … is adequately supported by the data upon which the expert relies.”

In other words, courts are requiring experts to have “good grounds” for their opinions, which is congruent with a sufficiency approach to expert testimony.

Green and Sanders explain that “party control of experts” and “widespread use of jury decision makers” lead judges to monitor the reliability of expert testimony in order to avoid “junk science” from influencing decisions.

Twerski and Sapir believe Green and Sanders misconstrued the “major thrust” of Daubert by switching from the formality of Daubert’s factors to a more flexible sufficiency standard.

They further argue that Green and Sanders seeks to have the courts use the standard for summary judgment when making Daubert determinations regarding admissibility of causation evidence. The summary judgment standard holds that “if there is any evidence from which a reasonable inference can be drawn, the issue is for the jury.”

Twerski and Sapir disagree on this approach, saying the test for summary judgment is not demanding.

“Summary judgment does not demand, as Daubert does, that expert testimony meet ‘exacting standards of reliability.’ The summary judgment standard is far less demanding and allows the weakest of inferences to suffice to defeat the motion,” Twerski and Sapir wrote.

In their response, Green and Sanders note that their fellow professors are taking the stance that the cost of false positives outweigh the costs of false negatives when it comes to ruling on the sufficiency of evidence.

However, raising the issue of the burden of proof, they explain that the standard of proof “reflects the conventional wisdom that erroneous judgments in favor of plaintiffs are of equal cost to erroneous rulings for defendants.”

Simply put, there are two stages in which the standard of proof plays a role: the admissibility determination and the sufficiency stage. Twerski and Sapir believe their concern should be addressed at the time admissibility is addressed while Green and Sanders think the sufficiency stage is more appropriate.

“The problem with the Green and Sanders thesis is that they place the cart before the horse,” Twerski and Sapir wrote in support of their approach. “It is only when we determine that something qualifies as ‘evidence’ that we can raise the issue of its sufficiency.”

In other words, the test for reliability must “stand on its own bottom.”

Modifying Twerski and Sapir’s words, Green and Sanders stated that “what must stand on its own bottom is the admissibility determination.”

“Our modest goal is to argue that when courts make these admissibility determinations they often think about the issue on sufficiency-like ways and, moreover, that this is a good thing,” Green and Sanders wrote.

While Twerski and Sapir agree with the opposition that the Daubert criteria may not be as important as tests of reliability, they argue that the message from Daubert is that a court must have a high degree of confidence in the integrity of scientific evidence before it qualifies for consideration to be utilized in litigation.

On that note, they explain that the Daubert standard to determine whether evidence is adequate is “anything but minimal.” The four criteria exemplify that the Supreme Court “expected courts to be demanding gatekeepers and that the era that preceded Daubert … was over.”

They add that the Daubert ruling “seeks a high level of belief in the integrity of scientific evidence.”

Green and Sanders defend their arguments by explaining causation is necessarily proved by circumstantial evidence, which is left for the jury to decide whether it is credible in the case.

“Thus, there may be circumstantial evidence that simply is not sufficiently strong to justify a reasonable inference of causation or other factual matters thereby justifying removing the case from the jury,” they wrote.

“If they were acting as judges in a Daubert case, Twerski and Sapir might well require stronger scientific evidence to support an expert’s causation opinion than others might,” they continued. “But, that difference among judges’ perspectives, influenced by their commitment to, and confidence in the jury, has long existed.”

Ultimately, Green and Sanders argue that “far too many” courts have contorted the Daubert factors “beyond recognition” to fit their intentions regarding the strength of the scientific evidence on causation and that it is difficult to describe how high the admissibility or sufficiency threshold should be when courts are presented with facts of the case.

However, the two do agree with Twerski and Sapir that “this threshold adapts depending on the quality of the evidence reasonably available to the party with the burden of proof. The law is rife with adaptations to the burden of proof when evidence is not reasonably available. Traditionally, courts rebuffed efforts to use statistical evidence, such as they virtually demand today in toxic torts in the form of epidemiology.”

From Legal Newsline: Reach Heather Isringhausen Gvillo at

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