This is the third and final entry in my lengthy series of posts that self-indulgently brag about my recent victory in the First Circuit Court of Appeals, and why it’s important to all of us. Hang in there, baby.
Can 27 Esteemed Scientists AND Dr. Smith ALL Be Wrong?
Before I finally get around to describing the First Circuit’s opinion for you, you need to know this: last year, a group of 27 scientists filed what’s called an amicus curiae (literally, “friend of the court”) brief in the case. The 27 scientists included epidemiologists, hematologists/oncologists, occupational medicine physicians, medical toxicologists, toxicologists, industrial hygienists, and a chemist. The list of individual scientists who joined the brief is a who’s who among scientists who research and publish in the areas of leukemia, benzene, and environmental and occupational toxicology and epidemiology. These scientists include faculty members from the Harvard School of Public Health, Mt. Sinai Medical Center in New York, the University of Southern California School of Medicine, the University of California, the University of Texas Medical Branch at Galveston, Stanford University School of Medicine, Tufts University School of Medicine, Massachusetts Institute of Technology, University of Maryland School of Medicine, and Boston University School of Public Health.
What did these 27 scientists have to say? They said that Dr. Smith’s opinion is not only reasonable, but it is CORRECT. In other words, the brief adopts Dr. Smith’s scientific position, and describes how the weight of the scientific evidence supports the view that benzene exposure can cause APL, as well as all of the other forms of AML.
The Role of the Judge Versus the Role of the Jury
Now, let’s finally turn to the First Circuit’s opinion.
The most critical aspect of the opinion is that it explicitly recognizes that there is a bright line boundary between the role of the trial court as “gatekeeper” of expert testimony and the role of the jury as finder of fact. I know that’s legalese. What does that mean in English?
In our justice system, judges and juries have very different jobs in a jury trial. The judge’s job is to make sure both sides follow the rules during the trial. This includes deciding what evidence the jury will and will not be allowed to hear. The judge must also explain to the jury what the law requires each side to show (if anything), in order to prevail. Generally, as described last time, the plaintiff has the burden of proof in a negligence case to show that, MORE LIKELY THAN NOT, the defendant’s unreasonable behavior was one of the causes of the plaintiff’s injury. The defendants’ negligence does not need to be the only cause, if it played a substantial role in the injury.
The jury’s job is to determine what the facts are. That is, in the Milward case, the jury must answer whether the Milwards have shown that, more likely than not, the solvent manufacturers’ negligent failures to warn about benzene was a cause of Brian’s leukemia. The jury has to decide whether the companies’ failure to warn was unreasonable under the circumstances, whether the lack of a warning caused Brian’s exposure to benzene, and whether that benzene exposure was a cause of his APL.
Under our Constitution, we all have a right to trial by jury. This means that courts must allow us to have a jury decide the facts of our cases. In this role, the jurors are the sole judges of the credibility of different witnesses and other evidence. In a typical traffic accident, for example, one witness may testify that the light was green, while another will claim that it was red. It’s entirely up to the jury to determine which of those pieces of conflicting testimony best described what really happened (or, the jury can reject both witnesses’ testimony and conclude that the light was yellow). The jury might decide that one of the witnesses had bad vision and his testimony should be discounted for that reason. The jury might conclude that one witness was lying. Or, the jury could find that one of the witnesses is biased by her relationship with the party involved in the accident, so that her memory has been subconsciously influenced by a desire to “do right” by her friend or family member.
Here’s the point: under our system of justice, all of these decisions about the credibility of evidence are constitutionally assigned to the jury and NOT to the judge. In other words, the judge, as “gatekeeper,” gets to decide what evidence is admissible in court, but the jury gets to decide whether that evidence is persuasive. The Founding Fathers of our country believed that the right to trial by jury provided a critical underpinning to our democracy, by ensuring that regular people in the community would decide the outcome of legal disputes.
Industry’s effort to crank out doubt has strongly eroded this constitutional guarantee in the context of toxic tort cases. Today, the jury system is under constant attack by corporate influences, which do their best to convince everyone that jurors are basically stupid and incompetent. Corporate misinformation runs wild about supposedly bad decisions by juries, in cases like the McDonald’s hot coffee case, and most of the public buys into it.
With that backdrop, it’s particularly easy for companies to convince judges that jurors are incompetent when it comes to deciding complex issues of science. But here’s the rub – when it comes to deciding which of two competing experts is more credible on issues involving application of scientific judgment, judges are no better equipped than juries to handle the issues. Few judges are trained as scientists. Indeed, many lawyers (who eventually become judges) went to law school because they avoided science classes when they were in college. Couple this fact with the Constitution’s clear directive that only juries may decide issues of credibility, and you can see that judges are being improperly encouraged to take over the jury’s role by preventing juries from hearing expert testimony that, for whatever reason, the judge finds unpersuasive.
The Highlights of the Opinion
Now, for both of you readers who have still stuck with me through the pedantic civics lessons, we’re going back to the First Circuit’s opinion in Milward. What else did the First Circuit say?
Below are the highlights:
- Trial courts may not exercise their gatekeeping responsibility by excluding expert testimony that falls within the range of matters on which reasonable experts can disagree.
- Trial courts are not “empowered to determine which of several competing scientific theories has the best provenance.”
- “Lack of certainty is not, for a qualified expert, the same thing as guesswork.”
- The mere fact that an expert’s methodology requires the application of scientific judgment does not render that method unreliable.
- Scientific judgment is a critical part of the process for determining whether exposure to a chemical is capable of causing a particular disease. Many experts will review the same pieces of scientific evidence and reach different conclusions on these issues.
- Trial courts should not exclude an expert’s testimony about chemical causation based on picking apart each piece of scientific evidence as being insufficient on its own to PROVE the expert’s conclusion. The scientific method for evaluating whether a chemical exposure can cause a disease calls for scientists to look at the whole body of available evidence as a whole, and then apply judgment to say whether, on balance, that evidence weighs in favor of a conclusion that the chemical causes that disease. Every piece of the puzzle will likely have limitations and flaws. Nonetheless, courts should not prevent experts from testifying about their judgment as to the body of evidence as a whole simply because all of the parts may not be sufficient on their own to demonstrate causation.
What Does This Mean for Us As a Society?
Now, dear readers, we have finally reached the finish line. The thing I want you to take away from this discussion is that the Milward case actually has importance not just for the Milward family and my law firm, but for all of us. You see, unless and until people like Brian Milward can hold companies accountable in court for the harms and losses that they have suffered when poisoned by chemical companies’ products, then the poisoning will continue. Chemical companies have spread their toxic chemicals throughout the environment, causing thousands of people to get sick and die.
More recently, corporations have become brilliantly adept at creating smoke screens of doubt to avoid having to pay for the harms that they cause.
The First Circuit set off the smoke detector in the Milward case. With some effort and some luck, courts and juries throughout the country will also sound the alarm.
When that happens, we will all live in a safer world.
 “Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle and clothed like swine and hounds.” John Adams, 1774
 As an aside, I have to put in a plug for a wonderful documentary film produced and directed by my friend Susan Saladoff, a lawyer in Oregon. Her movie “Hot Coffee” centers on how corporate America has conspired to limit the right to trial by jury, through disinformation campaigns about cases like the McDonald’s case. https://hotcoffeethemovie.com/ The movie was recently shown to strong reviews at the Sundance Film Festival, and in a few months it will air on HBO.