JUNK SCIENCE

When it comes to deciding whether expert testimony should be heard by the jury, Florida recently adopted the standard used in Federal Courts.  The judge’s role, when it comes to experts, is to make sure that the jury is presented with reputable science, while keeping the proverbial junk science out.  The judge, in an oft-used phrase, acts as a gate keeper.  The elements the Bench will consider in determining whether science is reputable enough to get past the gate are a little more stringent in Federal cases and future Florida ones than they used to be in the Sunshine State’s circuit courts.

Some have made light of the change.  Judges surely feel confident that they can let the jury see relevant expert evidence and keep the junk out of their court room, regardless of how the legislature decides to define “junk.”  Yours truly tends to agree. And in any event, that is only the beginning of the process.  Even when everyone agrees on the factors to consider, more questions remain.  For instance, are the judge’s gate keeping functions limited to determining the standing of a particular scientific theory, or does it extend to examining how the expert witness applied it?

The Federal Lawyer magazine recently reported on a case from Southern Florida that considered just that question. On the issue of whether a pain pump could cause the plaintiff’s condition, the judge accepted (and an appellate panel later affirmed) that the methodology, not just the underlying science, must be proved reliable.  When the plaintiff’s expert relied only on articles from medical journals, and none of those relied on epidemiological studies, the Court excluded that expert’s testimony.  But that is only one opinion in one set of circumstances, and those questions will keep popping up, testing lawyers’ skills… and their rolodex.