Nation New manual gives judges revised guidelines on scientific evidence Manual provides lawyers framework for what judge's will be focusing on

By Correy Stephenson The Daily Record Newswire BOSTON -- The third edition of the Reference Manual on Scientific Evidence has been released, providing a revised roadmap for judges in evaluating whether scientific evidence is admissible. For lawyers, the manual gives a framework for what judges will be focusing on during evidentiary hearings. Released in the fall by the Federal Judicial Center in conjunction with the National Research Council, the manual updates judges about new technologies, approaches and fields of science appearing in the courtroom, such as neuroscience, mental health and forensic science. Topics including epidemiology, statistics and engineering have updated chapters. The manual "gets judges up to speed on how professionals approach the issue of expert testimony," explained William A. Ruskin, a shareholder at Epstein Becker Green in New York City. "The third edition is exciting, with new sections dealing with new areas of science and new guidance for federal judges." While the manual is written specifically for the federal judiciary, state court judges also rely on it because the majority of states model their rules of evidence on the federal rules. The first edition of the Reference Manual was published after the seminal 1993 U.S. Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, which established judges as the gatekeepers for determining whether expert testimony must be introduced. A second edition was released in 2000. Max Kennerly, a partner at The Beasley Law Firm in Philadelphia, said he hopes the third edition will "bridge the different worlds of science and law" and improve an issue plaintiffs' lawyers run into somewhat frequently: a judge misinterpreting the scientific method. "When a doctor or scientist says that something is a theory, or they can't be 100 percent certain, they are properly following the scientific method," he said. But, according to Kennerly, defense lawyers, and some judges, often look at the inherent uncertainty admitted by scientists and take it as a confession that the science is unclear or the methodology is novel -- and should therefore be excluded from trial. "My concern as a plaintiffs' lawyer is that far too many issues are resolved on a Daubert motion with the expert being completely rejected as compared to both sides' experts discussing the strengths and weaknesses [of the science] and letting the jury evaluate the facts," he said. The third edition "goes deeper into the general principles of science to help courts understand that admitting some degree of uncertainty doesn't mean that something isn't reasonably certain within the confines of the legal system," Kennerly said. The preface notes that judges must rule on concepts of causation that scientists are generally not familiar with, and "given the enormous amount of evidence to be interpreted, expert scientists from different (or even the same) disciplines may not agree on which data are the most relevant, which are the most reliable, and what conclusions about causation are appropriate to be derived." As Kennerly noted, even "gravity is just a theory." Some defense attorneys have expressed concern about the first chapter of the reference manual, "The Admissibility of Expert Testimony," which includes a discussion of a 1st Circuit case and related Daubert challenges. In 2011, that court held in Milward v. Acuity Specialty Products, 693 F.3d 11, that an expert had an adequate scientific basis to testify that a plaintiff's rare form of leukemia was caused by his exposure to the defendants' benzene-containing products. But Milward "is an unusual case to put in the reference manual because it's an outlier" at odds with the rest of the circuits, Ruskin said. As a result of its inclusion, he contended that the third edition "softens its approach to Daubert challenges." Specifically, Milward frames the issue in a Daubert challenge by having the court examine the sum total of the studies on which the expert relies instead of examining the reliability of each study independently. "But 10 bad or incomplete studies don't give you a scientific basis for finding causation," Ruskin argued. James. W. Shelson, a partner at Phelps Dunbar in Jackson, Miss., agreed that the chapter "suggests a weakening of the Daubert standard and a possible cause for concern" for the defense bar. Shelson recently co-authored a paper with fellow defense attorneys discussing the changes in the new edition of the manual. While Milward could be limited to the facts of the case, which involved an extremely rare disease, defense attorneys should keep an eye on how the manual is interpreted, he said. "From a defense perspective, the [chapter] on admissibility of expert testimony includes some gratuitous comments that were unnecessary," he said. "It's too soon to see an impact yet, but it will be interesting to watch." Published: Mon, Jul 16, 2012