Friday, July 23, 2004

Daubert and the Finality of Judgments

Walter Olson points to a Fox News piece in which Radley Balko says the following question should be posed to John Edwards about his career as a litigator:

You specialized in seeking judgments for parents in cases of botched childbirth deliveries, which you argued resulted in cases of cerebral palsy. Two new studies released in 2003 show strong evidence that cerebral palsy is not likely caused by delivery room errors, but by genetics or prenatal infections. If medical science continues to exonerate delivery doctors from cerebral palsy cases, do you think the verdicts against the doctors you successfully sued should be reversed, or that your clients should return the money?
Let's skip the whole debate over whether Edwards should be faulted, as an advocate, for relying on expert evidence whose scientific validity some now consider questionable. Our views on that subject have already been stated at some length. See our posts of 1/20/04, 1/23/04, 1/27/04, 1/31/04 (multiple posts), and 2/15/04.

Since Balko is a self-described "policy analyst" (for the Cato Institute), let's focus instead on the broader policy question of whether it is ever appropriate to open final judgments in light of later scientific developments bearing on questions of medical causation -- and, if so, under what circumstances. This is an issue on which members of the defense bar might not wish to take over-hasty positions, because their own clients may often be the ones who benefit from the finality of judgments in contexts where the scientific knowledge of causation is still evolving. Yes, there will be occasions when a causal link previously enjoying significant support in the literature is called into serious question by later research. The causation of cerebral palsy may or may not constitute an instance of this. What is meanwhile certain is that there are also frequent occasions when a causal association is not susceptible of rigorous proof at the time a plaintiff's claim is first litigated, but is later found to enjoy stronger medico-scientific support. So if we adopt a policy of opening judgments in light of new research, it will not always be a question of having plaintiffs "return the money." It will often be a question of plaintiffs getting another bite at the apple.

It is possible, of course, that a permissive standard for opening judgments based on new science would affect plaintiffs and defendants asymmetrically, at least under existing law. For example, if we believe that defendants, as a group, are better equipped than plaintiffs to track developments in scientific research and act on them with alacrity, then defendants would likely profit more frequently than plaintiffs from arguments challenging the timeliness of motions to open the judgment. On the other hand, the plaintiffs' bar may already possess (and, in a world of more permissive judgment-opening, would very likely soon develop) a comparable proficiency at tracking the state of medico-scientific developments.

It is also possible, meanwhile, that asymmetries would and/or should start to tip in plaintiffs' favor, if revisiting settled verdicts based on new research were to become the order of the day. Relevant policy considerations legitimately include the comparative hardships imposed by opening the relevant judgments. Should we expect plaintiffs who recover substantial judgments for medical expenses and lost income in a permissive judgment-opening environment to hoard their awards, rather than spending them on securing medical care and supporting their families? After all, in such an environment, their entire awards would be vulnerable to future recoupment by defendants at any time, depending on the vicissitudes of prevailing medico-scientific opinion. If the potential hardships posed by reimbursement were felt to warrant some limits on the circumstances in which damage awards may be reopened based on new scientific research, what should those limits be?

Defendants would face potential hardships too, of course, in a more licentious judgment-opening world. On the whole, though, defendants may be in a better position, as a group, to spread the risks of such hardships. Or so the courts might conclude, if asked to sort the problem through.

Of course, Balko may not be primarily interested in policy considerations surrounding the finality of judgments. He may be more interested in finding occasion to advert in public forums to Edwards's career as a plaintiffs' medical malpractice lawyer. However that may be, we are left with one further question. We have been assuming, in this discussion, that prevailing law would not liberally bestow the right to relitigate past verdicts based on new science.  How correct, exactly, is that assumption?


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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.