Saturday, November 15, 2003

The Ethical Implications of Evidentiary Rules

From a post by Tyler Cohen over at VC, we learn of a controversy over the practice, by some pesticide manufacturers, of testing the safety of their products by paying human subjects to ingest the pesticides. The EPA doesn't currently regulate the practice, but is thinking of doing so.

Reflection is warranted over whether prevailing expert evidentiary rules operate to incentivize such behavior -- and, if so, whether we should change the rules, if the EPA doesn't fix things first. As matters stand, a research study purporting to show an absence of ill effects in human subjects has potentially tremendous economic value to enterprises like pesticide companies. That potential value seems likely to exceed, by far, the cost of compensating study subjects who may be harmed along the way. And the world, of course, is full of people who will cheerfully down a glass of DDT for $200. Given the economic incentives, researchers and participants alike seem unlikely to be deterred over concerns about epidemiological ethics -- e.g., the questionable legitimacy of exposing human populations to suspected toxins in an effort to measure the effects.

It is hard to shake the feeling that such "research," if undertaken by Saddam Hussein in Iraq, would probably be deemed a war crime. Should its fruits be admissible in American courts?
Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.