Wednesday, April 25, 2007

A Band of Zealots

To understand the power of the Supreme court ala its decision in Carhart v Gonzales, it is necessary to juxtapose the reasoning found in that decision with another leading case that marginalizes the role of scientists in their respective disciplinary fields, Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993). In brief Carhart decided (five Catholic justices to four non-Catholics) that a specific type of late abortion procedure could be properly banned because, in part, a woman who underwent the procedure might feel bad about it later in life. Just fourteen years ago, Daubert established criteria for the admissibility of expert opinions on matters of a scientific nature. In considerable detail, the Daubert court laid out a virtual road map for admissibility of opinion evidence. That opinion and the rules of evidence require the trial judge to be the gatekeeper regarding the scope of the opinions that can be drawn by scientists based upon the information that is available to them in the scientific community. In short a procedure was established whereby the judge (a person who enjoyed the office by virtue of political connection) with zero scientific training and understanding of the ways and means of the scientific world would tell highly trained and functioning scientists what kind of conclusions they could draw from available scientific evidence before the scientist could render his opinions and explanation to a jury. I call it the "If I don't understand it, you can't say it" rule. Let me explain. In its application, Daubert has proven to be extremely limiting in allowing jurors to consider evidence that most often is a matter of common sense. The old saying "if it walks like a duck, quacks like a duck, then it must be a duck" would be thrown out by a trial judge applying Daubert because there are no scientific studies concluding that the duck is a duck. In areas of science (most of science) no responsible scientist would ever utter a statement such as 'exposure to drug A caused the child's birth defects'. (The issue in Daubert, by the way). Instead, there is use of cautious language such as; 'an association', or 'a high probability that the drug caused the defect'. Judges, untrained in the rigors of science, not hearing the magic words and failing to appreciate the nuances of scientific disciplines, and likewise totally ignorant of the subject, reject the proffered opinions as merely speculative and therefore unworthy of consideration by a jury. The net effect, of course, is that no opinion means that the party offering the evidence, usually a damaged plaintiff seeking redress against a major pharmaceutical house, or equivalent corporate entity, is tossed out of court. Why I call it the "If I don't understand it, you can't say it" rule is that the vast abundance of subsequent cases interpreting Daubert indicate findings that what is really going on is that the judge is too dumb to understand what is going on and leaps to the arrogant conclusion that because he (she) cannot understand it, it is obviously beyond the understanding capability of the jury. Thus, the real litmus test here is the scope of the judge's limited understanding coupled with his/her background, i.e. the politics that got them to the station in life they enjoy.

Now back to Carhart. Instead of applying the Daubert rationale to its own thinking, catechism teachings are used as a knee jerk substitute for scientific analysis. Carhart states (in part) "Whether to have an abortion requires a difficult and painful moral decision . .., which some women come to regret." Where is the scientific proof, ala Daubert, for reaching the conclusion that some women might feel bad years later for undergoing the specific abortion procedure under consideration in Carhart? As opposed to some other abortion technique? As opposed to raising a child in circumstances poorly suited for the raising of the child? What we really have here is an arrogant court imposing its own notion of right and wrong on the country based on Catholic theology. To go back to Daubert briefly, that case was one of several hundreds involving the anti-nausea drug, Bendectin. It was contended that Bendectin, when administered to pregnant women during a specific window (30-50 days post-ovulation) of pregnancy, caused limb defects in a small percentage of the offspring of those pregnancies. Expert witnesses from nine different scientific disciplines concluded, based upon their respective areas of science, that in individual cases the most likely explanation for the child's birth defect was the exposure to the drug during the critical period of limb development. All of these witnesses held doctorate degrees in their respective disciplines. Yet, court after court threw these cases out because epidemiological studies of questionable scientific value in answering the ultimate question (sponsored by the company making the drug) failed to conclude that the drug caused the defects, no big surprise because epidemiological studies do not draw such conclusions. To best illustrate the ignorance of judges, one particularly striking example comes to mind. In the middle of a trial on behalf of twelve hundred children in Cincinnati, I attempted to cross examine a defense expert witness on the value of the company sponsored studies by interjecting the concept of 'bias' in those studies. In science, bias is always to be considered in evaluating the results of any study. Has the researcher consciously or unconsciously included a factor in the research that modified the results? The presence of bias is one of the reasons that control groups are used in scientific research, Double blind studies (i.e. both the researcher and the participant are unaware of whether the recipient is receiving the real drug or a placebo) are conducted specifically to eliminate the potential for bias. The trial judge in the Cincinnati case cut off my cross examination on this subject by the simple declaration that the meaning of bias was limited to the angle a bolt of cloth was cut. He pulled out a dictionary in the courtroom and read this definition in a side bar conference. By such reasoning, he cut off a fertile area of information for jury consideration that the fact that the drug company just possibly might have an interest in obtaining results in company sponsored research that revealed no problems with the drug, a classic application of the "If I don't understand it . . " rule.

How this applies to Carhart is obvious. By bring a pre-ordained line of thinking to a situation, any judge, or group of judges, can achieve the results they wish to achieve. We are the victims of a small band of religiously motivated zealots who are hell bent on telling us what to do with our lives. This same band of zealots in black robes are also telling us that in America corporations should win and the little guy should always lose. Same cast of characters, same faulty reasoning, same double speak. Sorry for the rant. Just had to get this off my chest.

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