Judge Backs Use of Neutral Experts

By Daniel Q. Haney, AP Medical Writer
Copyright 1998 The Associated Press
Associated Press (February 16, 1998)

PHILADELPHIA (AP) -- Supreme Court Justice Stephen Breyer on Monday cautiously endorsed a movement among judges to appoint neutral experts to help them sort through contentious scientific evidence, but he cautioned against overdoing the practice.

A few judges, daunted by cases hinging on highly technical scientific issues and sometimes clouded by dubious expert testimony, have named independent experts to help separate solid evidence from junk.

Breyer told a meeting of the American Association for the Advancement of Science he welcomed the organization's offer of a pilot program to help federal judges find neutral experts.

However, in a news conference after his speech, Breyer cautioned against making too much of his comments on outside scientific help.

"That isn't a cure-all, and it can't be used widely," he said.

The AAAS program will begin as soon as the organization finishes securing a foundation grant to pay for it. It will run for five years.

Deborah Runkle, a senior program associate who will run the project, said she expects it will be used in 12 to 20 cases.

"Judges will probably use this in cases that are out of the ordinary, where they don't think the normal means of getting scientific expertise is helpful," she said.

Runkle said the program will find experts by contacting scientific organizations and universities, searching computer databases and tapping into "the old-boy network."

"We will be flexible," she said.

Judges have struggled with decisions on what information to let into cases involving scientific disputes -- and what to throw out -- since the Supreme Court's so-called Daubert decision in 1993. That ruling gave judges wider latitude in sorting through evidence of varying scientific validity.

As Breyer put it Monday, judges have a legal responsibility to act as gatekeepers, "not to resolve the scientific matter but to keep unsound, unhelpful, unreliable information away from the jury."

Breyer noted that the Supreme Court has long relied on "amicus curiae" briefs, which allow professional organizations and others to offer written opinions and facts about scientific controversies before the court.

He said the court received 60 of these briefs last year from organizations of doctors, psychologists, nurses, hospice workers and handicapped people before deciding that the Constitution does not give terminally ill patients the right to doctors' help in committing suicide.

He noted that a federal judge in Massachusetts named a Harvard Medical School professor to be the court's "technical adviser" in a highly complex patent case involving genetic engineering. Another judge in Michigan named a medical school doctor to testify as an expert witness for the court in a case involving partial birth abortions.

"There might be more cases that call for this, but not necessarily a lot," Breyer said.

Appointing more neutral experts is just one more possible way to help judges decide what scientific evidence is worth listening to, Breyer said.

"There might be more cases that call for this, but not necessarily a lot," Breyer said.

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