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DISCUSSION OF THE COMMITTEE ON DAUBERT STANDARDS SUMMARY OF MEETINGS Kathi E. Hanna and Anne-Marie Mazza, Rapporteurs Committee on Daubert Standards Committee on Science, Technology, and Law Policy and Global Affairs
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THE NATIONAL ACADEMIES PRESS 500 Fifth Street, N.W. Washington, DC 20001 NOTICE: The project that is the subject of this report was approved by the Governing Board of the National Research Council, whose members are drawn from the councils of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine. The members of the committee were chosen for their special competences and with regard for appropriate balance. This study was supported by Contract No. UVPI-7118-001, between the National Academies and the Common Benefit Trust. Publication of the report was supported by The Starr Foundation. The views presented in this report are those of the rapporteurs and are not necessarily those of the funding source. International Standard Book Number 0-309-10248-0 Additional copies of this report are available from the National Academies Press, 500 Fifth Street, N.W., Lockbox 285, Washington, DC 20055; (800) 624-6242 or (202) 334-3313 (in the Washington metropolitan area); Internet, http://www.nap.edu. Copyright 2006 by the National Academy of Sciences. All rights reserved. Printed in the United States of America
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The National Academy of Sciences is a private, nonprofit, self-perpetuating society of distinguished scholars engaged in scientific and engineering research, dedicated to the furtherance of science and technology and to their use for the general welfare. Upon the authority of the charter granted to it by the Congress in 1863, the Academy has a mandate that requires it to advise the federal government on scientific and technical matters. Dr. Ralph J. Cicerone is president of the National Academy of Sciences. The National Academy of Engineering was established in 1964, under the charter of the National Academy of Sciences, as a parallel organization of outstanding engi- neers. It is autonomous in its administration and in the selection of its members, sharing with the National Academy of Sciences the responsibility for advising the federal government. The National Academy of Engineering also sponsors engineer- ing programs aimed at meeting national needs, encourages education and research, and recognizes the superior achievements of engineers. Dr. Wm. A. Wulf is president of the National Academy of Engineering. The Institute of Medicine was established in 1970 by the National Academy of Sciences to secure the services of eminent members of appropriate professions in the examination of policy matters pertaining to the health of the public. The Institute acts under the responsibility given to the National Academy of Sciences by its congressional charter to be an adviser to the federal government and, upon its own initiative, to identify issues of medical care, research, and education. Dr. Harvey V. Fineberg is president of the Institute of Medicine. The National Research Council was organized by the National Academy of Sciences in 1916 to associate the broad community of science and technology with the Academy's purposes of furthering knowledge and advising the federal government. Functioning in accordance with general policies determined by the Academy, the Council has become the principal operating agency of both the National Academy of Sciences and the National Academy of Engineering in providing services to the government, the public, and the scientific and engineering communities. The Council is administered jointly by both Academies and the Institute of Medicine. Dr. Ralph J. Cicerone and Dr. Wm. A. Wulf are chair and vice chair, respectively, of the National Research Council. www.national-academies.org
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COMMITTEE ON DAUBERT STANDARDS Margaret Berger (Co-chair), Suzanne J. and Norman Miles Professor of Law, Brooklyn Law School Doug Weed (Co-chair), Chief, Office of Preventive Oncology, National Cancer Institute (NIH) Shirley Abrahamson, Chief Justice, Wisconsin Supreme Court Joe Cecil, Project Director, Program on Scientific and Technical Evidence, Division of Research, Federal Judicial Center Joel Cohen (NAS), Abby Rockefeller Mauze Professor of Populations; Head, Laboratory of Populations, The Rockefeller University and Columbia University Steven Goodman, Associate Professor of Oncology, Pediatrics, Epidemiology, and Biostatistics, Johns Hopkins School of Medicine Sander Greenland, Professor of Epidemiology and Statistics, University of California, Los Angeles Patrick Malone, Partner, Stein, Mitchell & Mezines Jennifer Mnookin, Professor of Law, University of Virginia Judith Resnik, Arthur Liman Professor of Law, Yale Law School Barbara Rothstein, Director, Federal Judical Center Staff Anne-Marie Mazza, Study Director Kathi Hanna, Consultant Writer Stacey Speer, Program Associate (through April 2005) Elizabeth Briggs-Huthnance, Senior Program Associate iv
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COMMITTEE ON SCIENCE, TECHNOLOGY, AND LAW SHIRLEY S. ABRAHAMSON, Chief Justice, Wisconsin Supreme Court FREDERICK R. ANDERSON, JR., Partner, McKenna, Long & Aldridge LLP MARGARET A. BERGER, Suzanne J. and Norman Miles Professor of Law, Brooklyn Law School ARTHUR I. BIENENSTOCK, Vice Provost and Dean of Research and Graduate Policy, Stanford University PAUL D. CARRINGTON, Professor of Law, Duke University Law School JOE S. CECIL, Project Director, Program on Scientific and Technical Evidence, Division of Research, Federal Judicial Center JOEL E. COHEN (NAS), Abby Rockefeller Mauze Professor and Head, Laboratory of Populations, The Rockefeller University and Columbia University KENNETH W. DAM, Max Pam Professor Emeritus of American and Foreign Law and Senior Lecturer, University of Chicago Law School REBECCA S. EISENBERG, Robert and Barbara Luciano Professor of Law, University of Michigan Law School DAVID J. GALAS, Chancellor and Chief Scientific Officer, Norris Professor of Applied Life Sciences, Keck Graduate Institute of Applied Life Sciences DAVID L. GOODSTEIN, Vice Provost; Professor of Physics and Applied Physics; Frank J. Gilloon Distinguished Teaching and Service Professor, California Institute of Technology SHEILA S. JASANOFF, Pforzheimer Professor of Science and Public Policy Studies, John F. Kennedy School of Government, Harvard University DONALD KENNEDY (NAS/IOM) (Co-chair), Editor in Chief, Science, President Emeritus and Bing Professor of Environmental Science Emeritus, Stanford University DANIEL J. KEVLES, Stanley Woodward Professor of History, Yale University DAVID KORN (IOM), Senior Vice President for Biomedical and Health Sciences Research, Association of American Medical Colleges ROBERT A. LONERGAN, Vice President and General Counsel, Rohm and Haas PATRICK A. MALONE, Partner, Stein, Mitchell & Mezines v
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RICHARD A. MERRILL (IOM), (Co-chair), Daniel Caplin Professor of Law, University of Virginia Law School RICHARD A. MESERVE (NAE), President, Carnegie Institution of Washington ALAN B. MORRISON, Senior Lecturer, Stanford Law School THOMAS D. POLLARD (NAS/IOM), Eugene Higgins Professor, Department of Molecular, Cellular, and Developmental Biology, Yale University CHANNING R. ROBERTSON, Ruth G. and William K. Bowes Professor, Dean of Faculty and Academic Affairs, School of Engineering, Stanford University JONATHAN M. SAMET (IOM), Professor and Chairman, Department of Epidemiology, Johns Hopkins Bloomberg School of Public Health FERN M. SMITH, U.S. District Judge, U.S. District Court for the Northern District of California JAMES GUSTAVE SPETH, Dean and Professor in the Practice of Environmental Policy and Sustainable Development, Yale School of Forestry and Environmental Studies SHEILA E. WIDNALL (NAE), Institute Professor, Massachusetts Institute of Technology Staff ANNE-MARIE MAZZA, Director ELIZABETH BRIGGS-HUTHNANCE, Senior Program Associate vi
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ACKNOWLEDGMENTS This report has been reviewed in draft form by individuals chosen for their diverse perspectives and technical expertise, in accordance with procedures approved by the National Academies' Report Review Committee. The purpose of this independent review is to provide candid and critical comments that will assist the institution in making its published report as sound as possible and to ensure that the report meets institutional standards for quality and objec- tivity. The review comments and draft manuscript remain confiden- tial to protect the integrity of the process. We wish to thank the following individuals for their review of this report: Mark Behrens, Shook, Hardy & Bacon, LLC; Michael Green, Wake Forest University School of Law; David A. Savitz, University of North Carolina School of Public Health; and Brian Strom, University of Pennsylvania School of Medicine. Although the reviewers listed above have provided many constructive comments and suggestions, they were not asked to endorse the content of the report, nor did they see the final draft before its release. The review of this report was overseen by Richard A. Meserve, Carnegie Institution of Washington, appointed by the National Academies. He was responsible for making certain that an independent examination of this report was carried out in accordance with institutional procedures and that all review com- ments were carefully considered. Responsibility for the final content of this report rests entirely with the authors and the institution. vii
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CONTENTS INTRODUCTION 1 OVERVIEW OF KEY SUPREME COURT DECISIONS 3 THE LEGAL LANDSCAPE POST-DAUBERT 7 EVIDENCE SYNTHESIS: THE QUESTION OF CAUSATION 11 AREAS NEEDING FURTHER STUDY 17 SELECTED REFERENCES 21 APPENDIXES A Committee Biographies 23 B Meeting Agenda 33 ix
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