Without a way to consolidate cases outside of plaintiff-friendly California, the defense bar will now have one less option in battling these claims. Importantly, and especially with product liability mass torts, the science will become more central to these claims as the parties will engage in a “battle of the experts” subject to the Kelly/Frye admissibility threshold (which some argue has become more Daubert-like after Sargon). Indeed, expert admissibility could become the next “dispositive” blow the defense will use to quash these claims. For plaintiffs and defendants alike, the general causation question will be even more critical to success.
Blog | Scientific Evidence Posts
In the academic domain, psychologists don’t review the validity of medical causation. So why do we ask courts to perform these analyses in highly specialized fields from acoustics to zoology? According to JuriLytics LLC co-founders Amit Lakhani and David Faigman (acting chancellor and dean of UC Hastings College of the Law), litigators can now help courts with unbiased science, and in the process, better serve clients.
The Defense Reseach Institute's monthly magazine For the Defense recently featured an article written by Professor David Faigman and Dr. Amit Lakhani entitled "Measuring the Expertise in Expert Opinion." The article describes that many of the risks in using expert witnesses stem from the lack of credibility when fighting the "battle of the experts." The article goes on to describe a solution whereby litigators can offer judges unbiased and neutral science to help gain an advantage using peer review.
Professor David Faigman just submitted an amicus brief to the Ninth Circuit providing a Daubert analysis that was confirmed by JuriLytics' peer reviewers and mainstream science. The case, City of Pomona v. SQM North America, involves the contamination of groundwater with perchlorate which the city argues was sourced from fertilizer imported by SQM North America from the Atacama Desert. In 2011, City's expert Neil Sturchio was excluded by the district court from testifying about the source of groundwater contamination. The Ninth Circuit ultimately reversed the exclusion and remanded for trial, stating that the faults found by the district court go to the weight of the testimony.
JuriLytics first became interested in City of Pomona v. SQM North America late 2014 when SQM North America petitioned the Supreme Court to resolve an apparent split in the circuits regarding the application of Daubert after the Ninth Circuit's ruling. On its own, JuriLytics commissioned independent peer review of Dr. Sturchio's expert opinions. Our neutral peer reviewers found, post-hoc, that the methods utilized by Sturchio were state-of-the-art and accepted by the geochemistry community (see the full case study here).
After an eventual trial and adverse verdict this past summer, the City of Pomona has appealed again. This time, the main issues revolve around the improper admission of defendant's groundwater contamination expert. Professor Faigman's brief describes the irrelevance and unreliability of his testimony, among other things, and confirms his analysis with input from the scientific community via a second set of JuriLytics peer reviews of Dr. Laton's opinions.
This past summer, the Open Science Collaboration published a piece in Science detailing their efforts to reproduce key findings in articles derived from three top journals in psychology. They were able to replicate less than half of the 100 studies that were completed (roughly 40%). Justice demands certainty; now, psychology (and likely many other fields) provides even less than once was thought. Some might be tempted go as far as to dismiss science altogether as a “special” category of evidence. This reasoning belies an important fact – the vast majority of science is reproducible. Expressing surprise that new studies cannot be reproduced can be likened, in some sense, to expressing surprise that cases of first impression are sometimes overturned.