answers where qualified ones would better fit the data. Another scientist said that experts may—perhaps unintentionally—neglect disconfirming data or the existence of other reasonable schools of thought. A legal scholar added that they also may exaggerate the significance of their own inferences and even forget, as a brief for Daubert reminds us, “that in science accepted ‘truth’ is not a constant: that it evolves, either gradually or discontinuously.”19

One participant commented, “We all want in the legal system increased transparency about the way in which expert knowledge is produced, and a transparency that lets us get at right-wrong issues behind the practices and the testimony of experts.” At the moment, he added, “we’re in the early days of doing this kind of work and understanding the communal standards to which either the science side or the law side ought to subscribe.”

One benefit of disclosure is that it creates a historical record about the provenance of research. With a “population” of studies about a given theme, one can see any association between the funding of the research and the outcome. One can also compare the outcomes of clinical trials that are funded by industry with trials that are funded by government.20

THE MYTH OF VALUE-FREE SCIENCE

Another central question concerns the objectivity of science itself. A lawyer reinforced the argument that the evidence of scientists is not “value-free”: the testimony of a scientist may or may not be consistent with those of the legal system. When judges and attorneys uncritically accept the validity of an established scientific paradigm, he said, they make the same mistake as uncritical scientists.

AN ASYMMETRY OF DISCLOSURE REQUIREMENTS

A scientist raised the point of “asymmetry” in disclosure. That is, the expert witness has to disclose everything about which he or she is asked. Attorneys, on the other hand, can hire consultants, receive a report, and then decide whether and how to use the data collected in the report. Such data are said to be protected by the work product doctrine and therefore not discoverable by the opposing party. “This is natural to the adversary system,” said a public-interest lawyer, “but I think it leads to less credibility.”

19  

Amici curiae, Bloembergen et al., 18.

20  

The issues of sponsorship and design and control of research studies and outcomes is discussed in Chapter 7.



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