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SPEAKER_16: This week on The New Yorker Radio Hour, the novelist Jennifer Egan on how we could end the enormous problem of homelessness if we had the will to do it. That's The New Yorker Radio Hour. Listen wherever you get your podcasts.
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SPEAKER_05: Nasser. This is Radiolab. And today. Il a r une histoire avec Peter. Avec Peter. We
SPEAKER_13: have a story. Je m'appelle Pierre. Oui, oui, oui. Voila, voila. From science journalist
SPEAKER_10: Peter Smith. Okay. I'm going to switch gears pretty dramatically
SPEAKER_09: here because I want to start with the big case before the Supreme Court this last session.
SPEAKER_16: You will hear argument this morning in case 1913-92. The abortion case. Dobbs versus Jackson
SPEAKER_12: Women's Health Organization. Because something happened during the arguments that I think
SPEAKER_09: most people probably didn't notice. Basically, I would say the lawyer for Mississippi, he's
SPEAKER_09: arguing against abortion. And of course, the Supreme Court has already decided the issue of abortion in two previous cases. So they have seen much more calm. They interrupt him
SPEAKER_09: and say, what's different now? And he says, Justice Sotomayor, I think the science has
SPEAKER_09: really changed the last 30 years of advancements in medicine, science, all of those things.
SPEAKER_19: What are the investments in medicine? I think it's an advancement in knowledge and
SPEAKER_19: concern about such things as fetal pain, what we know the child is doing and looks like and is fully human. In Sotomayor, she says this issue of fetal
SPEAKER_09: pain, a gross minority of doctors believe fetal pain exists before 24, 25 weeks. Like
SPEAKER_09: it would never make it into the courtroom. And the reason she says is because of a single word. Daubert. Daubert, or as it's often pronounced, Daubert. Daubert. Daubert. By saying this word, she's essentially pulling down the gate that stands between law and science. Now, Daubert would only play a tiny, tiny role in the Supreme Court case, but I wanted to start there because Daubert is this thing that sort of goes unnoticed, but it is actually one of the most important parts of shaping what happens inside of a courtroom. And I've actually spent the last eight years reporting on Daubert and you know, it shows up everywhere. All right, this is the case that stayed against
SPEAKER_22: Kyle Rittenhouse. It played a big part in the Kyle Rittenhouse
SPEAKER_09: trial, trial and the murder of George Floyd. I'm going to talk about Daubert. Lawsuits involving... Monsanto's failure to warn.
SPEAKER_09: Monsanto, Deepwater Horizon, Johnson & Johnson. Johnson & Johnson's talcum powder products.
SPEAKER_05: Just like all over, there've been so many analyses written about it. It's been written
SPEAKER_09: up in like scientific journals, it's been written up in law reviews. Because anytime you want to have an expert testify, you're the chief head of the county medical examiner,
SPEAKER_09: whether it's about fetal pain, that's correct, or it's about correlation between domestic
SPEAKER_11: abuse, human psychology, heavy alcohol abuse and cognitive disorders, use of force or cardiac arrhythmias, sudden cardiac deaths, cause of death. This is not that kind of death.
SPEAKER_13: Whatever expert knowledge they're trying to bring to the court, that person has to pass
SPEAKER_09: what's known as the Daubert standard. And a lot of people I talked to said that Daubert can sort of make or break your case because Daubert essentially decides who gets to come into the courtroom and explain how the world works. That makes sense? It does.
SPEAKER_05: Yeah, but it makes me want to know now what is the standard.
SPEAKER_10: What is the standard and what is a Daubert?
SPEAKER_05: Yeah, exactly. I was wondering the same thing. And when I started looking into it,
SPEAKER_09: I discovered that at the heart of the Daubert standard, there is this family, the Daubert family. And one of the things that jumped out to me is that even though their name is everywhere, the story of the family is basically nowhere. Good morning, Peter.
SPEAKER_13: Hello.
SPEAKER_14: How do you do? Nice to meet you. Come in, please. Sorry, that's a little funny.
SPEAKER_15: Okay. Good morning. So the Dauberts are Bill and Joyce.
SPEAKER_09: What's the dog's name? His name is Rocco.
SPEAKER_15: And Rocco.
SPEAKER_15: He's a Maltese, so we needed a little tough name for him because he has big legs.
SPEAKER_09: Is everything okay? Oh, no, settle, settle. So the Dauberts live north of San Diego in sort of a high desert area. Sorry about the barking. And so Bill, as you might be able to tell, I am not a talker. Bill didn't really want to revisit this whole saga. Joyce got that gene. I didn't get it.
SPEAKER_23: So I mostly interviewed Joyce, who's in her 70s, has a big full head of curly white hair.
SPEAKER_09: Yeah. And so then she took me into a back room at their house, which is sort of this office space that they have away from the dog. And pretty quickly she started telling me about she and Bill.
SPEAKER_09: Maybe we can back up there. It's like, so how did you guys meet and where? We met in college.
SPEAKER_15: Where was college?
SPEAKER_09: We went to Hiram College. I'm sure you've heard of it.
SPEAKER_15: It was the Harvard of the Midwest. I'm teasing. It was about a thousand kids and it was a... There's Rocco talking to you. And, um...
SPEAKER_09: Anyway, it's the early 70s, Ohio. I graduated. I started teaching.
SPEAKER_15: She's a high school Spanish teacher. Bill went off and served in Vietnam.
SPEAKER_09: But he got an R&R.
SPEAKER_15: A summer off in Hawaii. And I joined there and we got married. Two years later, Bill came back to Ohio.
SPEAKER_09: Joyce was still teaching when all of a sudden... I got really sick. Like constantly sick, just projectile vomiting. She didn't know why. She thought she had a stomach flu. So anyway, I went to the doctor and he said, well, you might be pregnant.
SPEAKER_15: And I said, I assure you I'm not pregnant. And he said, well, I can give you this pill. It doesn't work for everybody, but I know it's safe because they give it to pregnant women. For morning sickness. So she tries this drug.
SPEAKER_09: Didn't help a bit, so I... it didn't take anymore.
SPEAKER_15: But she was still nauseous all the time.
SPEAKER_09: Couldn't keep anything down.
SPEAKER_15: And so I thought, well, I'm going to die. So anyway, I went back to the... I was so sick.
SPEAKER_09: Goes to the doctor and the doctor says, okay, we got to take a pregnancy test. They drew blood, as I remember.
SPEAKER_15: So it took a few days, you know, to find out. But they get the results back.
SPEAKER_09: And it was positive. And Joyce totally. You know that question that you ask a kid? What do you want to be when you grow up?
SPEAKER_09: She said she remembers when she was like eight or nine. Somebody asked her that. And I don't remember what I answered.
SPEAKER_15: I know, you know, what I wanted to say. I wanted to say I want to be a mother. I always felt like I'd be good at it and it would be a wonderful way to live my life. To have children and raise children. The nausea eventually went away and Joyce and Bill picked out names.
SPEAKER_09: Yeah, Jessica. For a girl and for a boy. Jason. Also, around this time, they moved out to California.
SPEAKER_09: Started our life here. And then one night in July of 1973, contractions. We took off for the hospital.
SPEAKER_15: Nurses greet her out front. And they come out with a wheelchair.
SPEAKER_09: Eventually they wheeled her into the delivery room. Bright lights. Bill's at my head. Gowned up. There's doctors and nurses swirling around. Monitoring everything.
SPEAKER_15: People are telling her to breathe.
SPEAKER_09: Contractions are coming pretty quickly.
SPEAKER_15: And finally, someone says.
SPEAKER_09: Push.
SPEAKER_15: Push.
SPEAKER_09: And then suddenly. Crying. And someone says it's a boy. And then Joyce says everything got like dead quiet. For a long time.
SPEAKER_15: And nobody's really moving or anything.
SPEAKER_09: One of the doctors was holding her baby.
SPEAKER_15: And I could see his right foot. He said, you know, what's the matter with his, what's the matter with his foot? Is something wrong with his foot?
SPEAKER_09: Looks like there's something missing.
SPEAKER_15: What happened to his foot? And then somebody said, oh yes, and his arm too. And I looked at his arm and I thought, oh.
SPEAKER_09: It was like twisted up, almost like a little chicken wing. And there were only two fingers. And nobody knew what to tell me.
SPEAKER_15: So the doctors didn't say anything?
SPEAKER_15: They didn't, nobody knew what to say. You know, everybody's just kind of like screwing around. They want to make sure that he's gonna, you know, survive. They don't know how devastating the birth defects are. But they took him to the nursery. They started doing a lot of tests right away. So I didn't know if he was alive or, it was horrible. Geez. It was terrible. And I will tell you, the only thing I really remember about, you know, the hospital room was, I got up out of the bed and walked to the window to see if I was up high enough, if I jumped out, if I could kill myself. And what were you thinking in that moment?
SPEAKER_15: Well, I just kind of felt like if he's not going to make it, if I'm not going to go home with a baby, maybe I just shouldn't go home. But while she's standing there, looking out the window, Joyce has another thought.
SPEAKER_09: If this baby does live, he's going to need the best mother in the world.
SPEAKER_15: And I better just step up and make it happen.
SPEAKER_09: A few days later, Joyce and Bill leave the hospital with their newborn son. Well, my girlfriend's an urgent care doctor.
SPEAKER_07: Jason?
SPEAKER_09: Exactly. So this is where you live? Yep. Yeah. Pretty lucky, honestly.
SPEAKER_07: After Jason left the hospital,
SPEAKER_09: he had his first surgery at six months.
SPEAKER_15: He had a series of operations.
SPEAKER_09: So his arm could function as an assist, which is how he uses it.
SPEAKER_15: Do you want to have a seat?
SPEAKER_07: Do you want to have a seat? Need anything to drink or anything? Jason is now 49 years old.
SPEAKER_09: He has a daughter, and he lives about 45 minutes from his parents' place. Yep. Yeah. Born here a couple years in Ohio and a couple other places, I think, as we were growing up.
SPEAKER_07: And so when you were living in Ohio, do you remember that at all?
SPEAKER_09: Super vaguely. I don't remember lots about my childhood.
SPEAKER_09: It was pretty rough. So when Jason was born, the really big physical difference was his right arm. That arm is much smaller than his left arm, and on his right hand, he only has a thumb and an index finger.
SPEAKER_07: As a kid, I was painfully aware of how different I was. Just a reminder, this is the late 70s.
SPEAKER_09: So there really wasn't a blueprint for the Dauberts. You know, we were making fresh tracks in the snow.
SPEAKER_15: Okay, here's a really good example, right?
SPEAKER_07: As a child, learning how to tie your shoes, it's a milestone, right?
SPEAKER_15: And when it was time to teach Jason how to do all of that, That took a lot longer for me.
SPEAKER_07: It was really a knife in your heart to watch him struggle, but I didn't want him to feel sorry for himself.
SPEAKER_15: So she would tell me pretty frequently, kind of whenever I needed to hear it, like,
SPEAKER_07: If I could give you my right arm, I would do it in a heartbeat.
SPEAKER_15: But that's not going to work. There's nothing we can do about it. So how are you going to, you know, move through the universe? How are you going to live your life? And so when it came to something like tying his shoes,
SPEAKER_09: He'd bend over his feet, you know. Hold the lace with his mouth and use his left hand to tie his shoe. Or I couldn't cut the nails of my left hand.
SPEAKER_07: So then one day I just happened to be fiddling with a Swiss Army knife or something. I realized the way the Swiss Army knife works and the little scissors and that, I can actually make that work with my hand and, Oh my God, Mom, I can cut my own fingernails now. It sounds stupid, but it's like these little things that are, you know, that you just kind of have to come up with. But I think that the thing for both of them, the thing that was hardest was dealing with other people.
SPEAKER_09: And, um, like when it was time for Jason to go to kindergarten, They wouldn't enroll him in the public school.
SPEAKER_15: They said he had to go to the Sunshine School, The special needs school,
SPEAKER_07: because their assumption was I was probably mentally disabled as well as physically disabled. So I went to the Catholic school and said to Sister Mary Frances or whoever it was,
SPEAKER_15: We're not Catholic, but we really want Jason to get a typical education.
SPEAKER_09: And the sister said, Oh, we'd love to have a little crippled boy in school.
SPEAKER_15: But then she called me up and told me that they couldn't enroll him because the other parents didn't want their kids to go to school with Jason because he was deformed. They didn't want their kids to have to look at that.
SPEAKER_09: Eventually, Jason got into public school and it was there he says he got, he got bullied.
SPEAKER_07: Getting the living crap beat out of me in like elementary school and stuff. And sometimes he'd come home and tell Joyce. Some kid told him,
SPEAKER_09: My mother said, Your mother took drugs when she was pregnant, and that's why you only have two fingers.
SPEAKER_15: And I'd say, What did you say, Jason? And I'd always get that, No. But Joyce said when Jason was little, you know, it came up.
SPEAKER_15: Jason often asked the question, Why?
SPEAKER_09: Why am I different?
SPEAKER_15: And I would say to him, Honey, everybody's different. Sometimes it's on the outside. Sometimes it's on the inside. And it's easy for people to see how you're different, isn't it? Yeah, it is. Okay. So that's kind of how we dealt with those things.
SPEAKER_09: And Jason said as he got older, that the question sort of fell away. Of course, you know, what happened to Jason could have been some random genetic mutation. But for Joyce, I wanted to know. She felt responsible.
SPEAKER_09: You know, it was my fault. It was my pregnancy and something went wrong.
SPEAKER_15: I didn't do it right. Something went wrong.
SPEAKER_09: She and Bill had genetic tests done. From everything they could tell.
SPEAKER_15: They ran basically no higher risk than any other couple.
SPEAKER_09: I was careful about eating a healthy diet and, you know, no alcohol.
SPEAKER_15: I was looking through some of the medical records and they say there's no exposure to toxins or chemicals.
SPEAKER_09: I worked at having a healthy baby. I worked at it. I knew what I was supposed to do and I did it.
SPEAKER_15: And so when it came to Jason's birth defects,
SPEAKER_09: We don't, you know, we don't know. We don't know what happened.
SPEAKER_15: But I guess I was also trying to figure out when did you when did you first like put it together?
SPEAKER_09: When I first went to school, when I first went back to teaching.
SPEAKER_15: This is 1983. Joyce is back teaching Spanish.
SPEAKER_09: And by this point there's Jason and Jessica, his little sister. They're 10 and 9 years old. They would walk to school together in the morning.
SPEAKER_15: And after school they would all walk home.
SPEAKER_09: And one of our first routines was when we hit the house, you know, we'd get the paper out of the driveway and come in.
SPEAKER_15: Make some snacks inside. And then I'd sit down on the floor.
SPEAKER_15: I'd sit down on the couch. One kid here, one kid here. And I've got the paper. They would read the paper. That's so sweet and nerdy.
SPEAKER_09: Yeah, they would all sit down and read the comics together. The kids love that. So one day Joyce is flipping through the paper to get to the comics.
SPEAKER_15: And then she saw a photo of a little girl with an arm exactly like Jason's.
SPEAKER_15: And Jason looks at it and Jessica looks at it and I'm looking at it. And Jason just gets up and goes to the drawer where the scissors are and brings me the scissors so I can cut out the article.
SPEAKER_09: And the article is about this little girl and her family who had just won a settlement against Merrill Dow, which is a pharmaceutical company that made a drug called Vendectin, a drug for morning sickness. I got really sick.
SPEAKER_09: And Joyce was like, oh, the doctor. I can give you this pill. It's called Vendectin.
SPEAKER_15: That's what he gave me.
SPEAKER_09: And it doesn't work for everybody.
SPEAKER_09: And it was at that moment Joyce was like, maybe I have the answer.
SPEAKER_05: And her quest to find out if she did would change how we judge what's true in this country.
SPEAKER_10: Stay with us.
SPEAKER_05: Lulu here. If you ever heard the classic Radiolab episode, sometimes behave so strangely, you know that speech can suddenly leap into music and really how strange and magic sound itself can be. We at Radiolab take sound seriously and use it to make our journalism as impactful as it can be. And we need your help to keep doing it. The best way to support us is to join our membership program, The Lab. This month, all new members will get a T-shirt that says, sometimes behave so strangely. To check out the T-shirt and support the show, go to radiolab.org slash join.
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SPEAKER_09: So the summer of 1983, Joyce saw a newspaper article with a photo of a girl whose arm looked remarkably similar to her son's.
SPEAKER_15: But I, you know, put it aside because, you know, I had dinner to make. We had homework to do, you know, all that kind of stuff.
SPEAKER_09: But pretty quickly thereafter, she decides to call directory assistance, get in touch with this family. I called. Talks to the family, gets their lawyer's name. And I got his phone number.
SPEAKER_15: And I called him the next day. How's it going to be? How will you direct your call?
SPEAKER_17: Yeah, I just received a call from Barry.
SPEAKER_09: My name is Peter Smith. Okay, one moment, please.
SPEAKER_09: His name is Barry Nace. Hello? We're connected again. Yeah. Okay, great. Thanks for the call. Yeah.
SPEAKER_17: Let's be, I put you on speakerphone because I wear hearing aids. Oh, okay. It's much easier for me. There's nobody else here. Okay.
SPEAKER_09: So Barry had a law office in D.C. And my background is chemistry and biology. He was doing medical malpractice. And one day this little girl's family came to him with a problem about Bendectin.
SPEAKER_19: Was he surprised to hear from you? Yes, and he was very supportive.
SPEAKER_09: And Barry basically had two questions for Joyce.
SPEAKER_15: He said, it causes birth defects if you take it early on in the pregnancy. And I said, oh, okay. And I asked him, I said, would you be our attorney too? And he said, yeah, you know, we'll have to figure out how to do it because we're in a different district and, you know, all that kind of stuff. But the case wasn't hers necessarily.
SPEAKER_09: Right, so. It was ultimately Jason's case to be made. But he was a minor. He was 10. But I do remember my mom asking basically and like, hey, this is going to be a, you know, probably not an easy thing to do, but if you want to, we can do it.
SPEAKER_07: Why did you want to do it? Did you have a? Yeah, like the, if I remember right, my mom basically pointed out that like, hey, if this is true and there's a problem with this drug, we don't want other people taking it. So to me, it felt like a really easy decision. And that's how everything started.
SPEAKER_15: So when you looked at the case, you said it seems like another sort of slam dunk case or?
SPEAKER_09: Yeah, right, slam dunk, yeah.
SPEAKER_12: Let's not even read between the lines. It wasn't a slam dunk.
SPEAKER_09: No. Even with the case you want, with any case like this, the hardest thing is how do we show causation? And so trying to figure out exactly what my conception date was.
SPEAKER_15: Mary had this strategy.
SPEAKER_09: Seen here's the prescription. Prove the drug was taken. Refer it for genetic testing. Eliminate any other possible cause. Sell medical records. And use whatever science you have to make the case to a jury. And probably the strongest evidence they had were these animal studies. Well, I had read a story in Mother Jones.
SPEAKER_22: Oh. Which was about the whole issue of Bendectin. Which actually brings us to this researcher, this guy, Stuart Newman.
SPEAKER_09: So I was at New York Medical College where I still am.
SPEAKER_22: He'd read this article about Bendectin.
SPEAKER_09: It was said to affect the limbs.
SPEAKER_22: And I was a limb researcher, limb development researcher. I was working experimentally by taking cells from chicken embryos. And seeing how the cells interacted with each other to form the limb bones. Back then you couldn't do it on human embryos.
SPEAKER_09: No. No.
SPEAKER_22: No, not at all.
SPEAKER_09: And so Stuart was saying like basically at this early stage of cellular development, like what happens in a chicken when its limb forms is essentially the same thing that happens in a human. Oh, interesting. And so one day he gets a call from a lawyer who asked him if he can look into Bendectin. And he said, sure. So I looked into the literature to see whether it had been used in the kinds of experiments that I do.
SPEAKER_22: And in fact, there were a couple of papers. One of them was from the NIH, the National Institutes of Health.
SPEAKER_09: Using chicken cells. Where they took these chicken cells, put them in a petri dish, added the drug. And they found that the drug impaired differentiation and impaired growth.
SPEAKER_22: Basically the cartilage isn't forming, there's bones missing, things aren't separating properly.
SPEAKER_09: It was harming the limb cells.
SPEAKER_22: And so he thought if it could do it in a chicken, it could do it in a human?
SPEAKER_10: Yes. Exactly.
SPEAKER_22: It could. This drug is capable of impairing the development of the limb.
SPEAKER_09: He eventually becomes an expert witness in these cases, the Bendectin cases, including Joyce's. So he was submitting depositions and he was sort of on call for the trial. OK, so they do get, it sounds like it's a pretty solid case in a way.
SPEAKER_10: Yeah. They had a lot of good evidence.
SPEAKER_09: They had spent like six years putting together all this stuff, like animal studies. The prescriptions.
SPEAKER_15: The genetic tests.
SPEAKER_09: They felt that the evidence was real good.
SPEAKER_15: And I think that the lawyers sort of like reassured Joyce that they were very, you know.
SPEAKER_09: Kind of, what they said was it was very sexy.
SPEAKER_15: It's a very sexy case. And they said you're going to be the best witness in the world.
SPEAKER_09: So like after all these years, they finally get a trial date. It's set and right before they're scheduled to go to trial, she gets a call from her attorney. And Joyce is expecting like a pep talk or something. And her lawyer says basically the judge has thrown out our case. What? Not going to trial at all. It was shocking.
SPEAKER_15: Everybody was very shocked.
SPEAKER_09: Did you really want to get into court and testify before a jury? Yes, I did.
SPEAKER_15: Absolutely. I very much wanted that. You know, I wanted to have my day in court. So they had, like, it's like they had the scientific studies.
SPEAKER_10: They had the precedent. They had like heart-wrenching testimony. Like it sounds like they have everything on their side. Yeah, but basically the judge had received a motion to toss out the case from the attorneys for Merrill Dow, one of whom was?
SPEAKER_09: Sure.
SPEAKER_13: Pam Yates. I was a one-year lawyer and I had been put in charge of claims of birth defects due to Bendectin. So just like Barry, Pam went out looking for research to build her case.
SPEAKER_09: And pretty quickly she came across the animal studies. They're compelling, but Pam thought she had a better argument. Which is when you're trying to establish causation in a human, you go to the human data.
SPEAKER_13: It turns out there was some human data starting to emerge.
SPEAKER_08: By Dr. Stephen Lamb.
SPEAKER_13: I was an epidemiologist.
SPEAKER_08: This is Stephen Lamb. I had been at CDC, the WHO, various regulatory agencies. He'd been hired by a judge in Ohio to look at Bendectin as sort of an independent expert.
SPEAKER_09: Correct.
SPEAKER_08: So first step. First step is to collect all the relevant scientific studies. He ends up with about 30 different studies.
SPEAKER_09: Correct. And like how long does this process take? A couple of days? A large number of months.
SPEAKER_08: Maybe about six months. Then he started pulling out. Had Bendectin. All the numbers. Did not have Bendectin. From every study. What birth defects were identified in the child. And so what he ended up with was the largest collection of human data that had been amassed on Bendectin.
SPEAKER_09: It looked at 13,000 women who had taken the drug compared with tens of thousands who hadn't. And so what you then do is you look at the effects and the risk in both those groups and you compare them.
SPEAKER_09: And so what he found was in the group of women who hadn't taken Bendectin, you had a rate of children born with birth defects.
SPEAKER_13: Of about three per hundred.
SPEAKER_09: Which is the average background rate. And then in the group of women who had taken Bendectin, you also had a rate of about three per hundred. And so the question was, does Bendectin actually carry a higher risk for birth defects? The answer was no. So it was a pretty definitive no as well. Correct. Correct. So when it came to Jason's birth defects. How can you say it's the drug?
SPEAKER_09: Right before the trial, Pam submitted this motion to the judge.
SPEAKER_13: We have all this science? We have the science on our side.
SPEAKER_09: They don't have anything unless they rely on non-human data.
SPEAKER_13: And the judge agreed.
SPEAKER_09: He tossed out the case entirely. But can a judge even do that?
SPEAKER_10: Like decide which expert out-experts the other expert? Yeah, that was a real question.
SPEAKER_09: Like, do judges even have this power?
SPEAKER_15: Well, you know, like I would ask, can we appeal this?
SPEAKER_09: They appealed to the Ninth Circuit and the Ninth Circuit said, yes, a judge can do this. And they have this power because of this rule. Called the Frye Rule.
SPEAKER_15: Frye. F-R-Y-E.
SPEAKER_09: This rule from the 1920s that nobody had used. Until around the time of the Daubert case when all these other bad s*** crazy things started happening. When there was this supposed epidemic of litigiousness. And so now, at this point in the story, we're entering the quote-unquote litigation boom. And to guide us through. We're good now? I think so. Hello. We're going to bring in this guy. Michael Gottesman.
SPEAKER_02: I prefer Mike. Mike's a professor at Georgetown. Georgetown University Law Center. And so I talked to Mike about the role of experts and the role of expert testimony.
SPEAKER_09: And so obviously, like, the Daubert's experts had been kept out of court off the witness stand. But Mike said if you look back, like, just immediately before this case, before the 1980s. There was no idea that you could keep in a civil case an expert off the witness stand.
SPEAKER_02: In fact, there were some rules about this.
SPEAKER_09: Passed by Congress. An overview of the federal rules of evidence. Called the Federal Rules of Evidence. Rule 702 defines an expert rather broadly.
SPEAKER_23: It was basically like, let the experts testify.
SPEAKER_09: If there's an expert, let them into the court. And we rely on the jury to separate the wheat from the chaff.
SPEAKER_02: But Mike said once you got to the 1980s, things started to change.
SPEAKER_09: When two major areas of law began to blossom.
SPEAKER_02: Vietnam veterans who say that they were injured by Agent Orange.
SPEAKER_19: When was law used about drugs?
SPEAKER_09: Ethylene dibromide. Chemicals? And very toxic pesticides. Like Daubert. The cause of cancer, liver disease, and birth defects.
SPEAKER_06: And the other tanker, the Exxon Valdez. Was environmental lawsuits.
SPEAKER_09: The suit says these chemicals have already damaged wildlife.
SPEAKER_18: And Mike says it was around this time.
SPEAKER_02: Where expert testimony became absolutely crucial. And what started to happen is, juries.
SPEAKER_09: Struck a blow for veterans.
SPEAKER_06: Started to give out. $1.9 billion.
SPEAKER_13: Big settlements to plaintiffs.
SPEAKER_09: And by the time you get to the Dauberts case, in the late 1980s, early 90s. There was this sort of conservative hand wringing about. Junk science.
SPEAKER_12: Junk science. Junk science.
SPEAKER_09: Using junk science. Cases where individual people would sue companies. And bring in these experts. The so called junk scientists.
SPEAKER_02: Who were just basically guns for hire. Sometimes they call them saxophones.
SPEAKER_09: Because they were paid to play whatever tune you want them to play. Play it loud. I think there was like a kernel of truth to this. The two examples that sort of come to my mind is the one where a woman who said she had psychic powers went in for a CAT scan. And lost her ability to see into the future.
SPEAKER_09: What? She sued the hospital. And a jury awarded her a million dollars. There was this bus driver who claimed he got cancer from bumps in the road. Sued the bus company. He also won. And it's the junkiest science that's being used to prove these cases. So courts were beginning to become restless about this.
SPEAKER_02: And so there began to be a few judges, including the Ninth Circuit. Who went looking around for a way to keep experts out.
SPEAKER_09: And they found it in this obscure criminal case from 1923 called Fry. That had held that in criminal cases judges could exclude expert testimony if what the expert was testifying to was not quote generally accepted.
SPEAKER_02: Which meant if you're an expert and you're going to testify whether that's about epidemiology or engineering or whatever.
SPEAKER_09: What you're saying has to be generally accepted by the field you're in. That's essentially the threshold you have to get past. It seems like Fry seems to gut check a paradigm.
SPEAKER_05: Like is what this expert is saying in consensus with what we all believe at this moment in this field. Yeah, I think you just said it.
SPEAKER_09: I think Fry is a pretty good consensus test. So you can't.
SPEAKER_10: Which sounds good actually. Oh, sorry. Go. Yeah, it does.
SPEAKER_05: Like you can't come in with the rogue wild idea. Right.
SPEAKER_09: But the thing is Fry was also what was keeping this, these animal studies out of court. The judge was allowed to say this isn't generally accepted in the field. And so without Fry, the Daubert's experts would have been able to present that evidence and the jury would decide. But that's what I don't actually understand.
SPEAKER_05: Like was the Stewart chicken science, like was that actually that sketchy? Do you have a sense of that? No, I don't think it was sketchy.
SPEAKER_09: It was legitimate science. He was reanalyzing previously published studies. But I think. But in terms of causation.
SPEAKER_13: To the point of Merrill Dow's attorney, Pam Yates.
SPEAKER_09: There's sort of a pyramid of scientific evidence where you start with your cell studies, you go to your animal studies.
SPEAKER_13: But the human data, the human studies are really at the top of that pyramid. And that was our argument on that. And that's basically what the judges agreed with.
SPEAKER_09: That's what's generally accepted. The Dauberts in these animal studies, they essentially don't have a case. And so for Joyce, like not getting a trial was profoundly disillusioning.
SPEAKER_09: Whose job, isn't it everybody's job to protect the innocent and the defenseless?
SPEAKER_15: And if you don't stand up and say the truth, you're tacitly endorsing the wrongdoer. And that's when the world goes down the tubes, I think. So. That's how I look at it.
SPEAKER_05: Radio Lab will be back. Right after this short break.
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SPEAKER_10: You start. Last day of Lulu. Back with Peter. Yeah, so. Rocko. Go too steep. So Jason and Joyce had filed a lawsuit against Merrill Dow.
SPEAKER_07: They'd gotten kicked out of district court and then sent up to the Ninth Circuit. But then the Ninth Circuit said no as well.
SPEAKER_09: Yes, because the fry ruling says da da da, get out of my courtroom. So they're going to have to go through the lawsuit. And they're going to have to go through the lawsuit.
SPEAKER_15: So then, I mean, then you're like, we're done? Or are you? Well, we had to get that stumbling block moved to the side.
SPEAKER_09: And so you know what the next step is.
SPEAKER_15: So your argument now number 92. March 30th, 1983. Dow bear versus Merrill Dow Pharmaceuticals Inc.
SPEAKER_09: Their case goes before the Supreme Court.
SPEAKER_06: And Jason and Joyce, they fly out from the Supreme Court.
SPEAKER_09: And Jason and Joyce, they fly out from California. Jason had to get out of college.
SPEAKER_15: I was 20. It had taken him a decade to get to this point.
SPEAKER_07: If we win here, we at least have a chance to keep going forward. So it was a very exciting time.
SPEAKER_15: So the Daubert side was argued by.
SPEAKER_09: Mr. Gottesman. Mike Gottesman.
SPEAKER_02: They asked me if I would handle it. Mr. Chief Justice, may it please the court.
SPEAKER_02: Jason Daubert was born missing a part of his right arm.
SPEAKER_09: So Mike basically argued that the Fry rule.
SPEAKER_02: That a judge could keep out expert testimony if it was not generally accepted.
SPEAKER_09: He's essentially saying like this rule shouldn't be used. It should get tossed out. As to which. In making that argument.
SPEAKER_11: And Sandra J. O'Connor jumps in and she says.
SPEAKER_09: If we're going to have an expert come in and talk about science, we should just look at the word. I think the word science is defined as accumulated and accepted knowledge.
SPEAKER_11: She's like the Fry standard. It's right there in the definition.
SPEAKER_09: Like, so shouldn't the judge have a role? At the outset, what comes in.
SPEAKER_11: And Mike essentially says, no, we should use the rules that Congress passed.
SPEAKER_09: Under the federal rules of evidence. The federal rules of evidence.
SPEAKER_02: And the rules of evidence did not give judges that power. The rules gave more power to a jury.
SPEAKER_09: And Mike said, there's an argument that the jury is actually better equipped to do this.
SPEAKER_02: There's only one judge and there are 12 jurors. The jurors can discuss among themselves what they think. Secondly, the jury will have heard the full testimony of the experts on both sides. Judges are deciding this at an early stage without a trial. They're going to have less exposure to the issue than the jury has. And ultimately we have a trial by jury system.
SPEAKER_09: You know, let the jury decide.
SPEAKER_06: Very well, Mr. Gottesman. Mr. Fried, we'll hear from you. So then came the attorney for Merrill Dow.
SPEAKER_09: Thank you, Mr. Chief Justice, and may it please the court.
SPEAKER_23: And one of the things that stood out to me is that there's a point
SPEAKER_09: Mr. Fried, can I ask you a question about the studies in this case, the animal studies as an example.
SPEAKER_20: Where the justices start to ask about these animal studies.
SPEAKER_09: Are the animal studies themselves, insofar as they prove anything about animals,
SPEAKER_20: scientific knowledge within the meaning of the rule in your view? These animal studies, if properly conducted, and some of them were,
SPEAKER_23: are scientific knowledge, without doubt. But they're used quite generally to raise a suspicion. They are like a scaffolding. But when the building is up, the animal studies drop away. The animal studies cannot support a building which will not stand. Mr. Fried?
SPEAKER_09: And Chief Justice William Rehnquist asks, How are we supposed to know this?
SPEAKER_09: We're not the scientists. How are we supposed to determine what's good science and what's junk? And like, is that even our place? You know, you're a lawyer. You're not a doctor.
SPEAKER_06: And here you are telling me that certain things are so in the scientific field. You may know, but I don't.
SPEAKER_15: We made a good argument.
SPEAKER_06: The case is submitted.
SPEAKER_09: They went to a party like afterwards back at their attorneys. Punching cookies and whatnot.
SPEAKER_09: Everybody's pretty excited. At one point, Joyce said, one of the lawyers came up to her. And he said, you know, that he was so happy to meet me.
SPEAKER_15: And it was such an interesting case. And he thought that it went well. What did I think? Joyce said she also thought it went pretty well. You just kind of hope justice will be done. Justice will be served. And he said, you do know, don't you, that nine of the most important people on the planet,
SPEAKER_15: your name is on their lips?
SPEAKER_09: So Joyce went back home and started teaching. And a couple months later, she got a call from one of her attorneys. And she said, have you heard?
SPEAKER_15: And I said, no, I've been in school all day. You know, you know nothing. It's like you're in a submarine, you know, at school. And she told me and she said, nine, oh, this is just, you know, we're over the moon about it. We got a reversal. It's nine zero.
SPEAKER_09: Wow. Damn, nine zero. No one's going to bat for fry. No, nobody went to bat for fry. And essentially the Supreme Court says we're going to adopt the federal rules of evidence, the liberal admission of experts. And we're like, yes, finally, we'll actually get our day in court.
SPEAKER_07: This is good. You were going to finally... For fail, yes.
SPEAKER_15: That's what we thought. But, oh no.
SPEAKER_09: Because like as the opinion keeps going, the justices say, like we know we just got rid of fry, this rule that judges have this power to keep experts out of the court. But we actually think they should have this power. Like judges should still be gatekeepers of what comes in and what gets tossed out. And when it comes to expert testimony, they made this like bullet point list of things for judges to consider. And it's way more demanding than fry. For example, whether the theory or technique in question has been tested, whether it has been subjected to peer review or publication, whether it has a known error rate, whether there are standards for control, and then finally, whether it has attracted widespread acceptance within a relevant scientific community. What?
SPEAKER_05: This is like fry plus. This is totally fry plus. It's double fried. It's quadruple. It's quintuple fried. It really is. So, then what happens? So the Daubert's case gets kicked back down to the Ninth Circuit.
SPEAKER_09: And not surprisingly, the lower court says, nope, you know, we're not changing our minds now. Actually, the judge in this case, his name is Alex Kaczynski. And right around this time, one of his clerks was Brett Kavanaugh. Minor footnote. But anyway, Kaczynski writes this opinion in a way so that he would have the final word on this. And that final word is like, no, this is absolutely not going to trial. And so point by point, he's like essentially taking down each one of the Daubert's experts. Like he's saying some of them might have passed like publication and peer review. Some of these studies are credible, but basically there's no direct test. There's a lack of stats. There's still no consensus about this. I think in the end, what he's saying is that like, just because something seems possible, like just because it could cause these injuries, does not necessarily mean that it did. They can't prove causality, doesn't meet the standard. This whole thing stops here. End of story.
SPEAKER_10: If I was his family, I would just hate the justice system so much. Yes. I would feel so like jerked around.
SPEAKER_10: I think that's exactly how Joyce feels.
SPEAKER_09: I definitely come to the notion that there is no justice.
SPEAKER_15: And I know a couple, I've been called a jury duty, you know, and they say, is there anybody who can't serve on the ice? I was going, you know, I'm Daubert of Daubert versus Merrill Dow. And I don't, I don't believe in justice. This building says, you know, those who seek justice enter here. I said, it turns, it turns my stomach. There is no justice. I never got my day in court. We had all of this evidence and, you know, it was a David and Goliath thing. And I never got my day in court and there is no justice. And I don't want to sit on this jury and pretend that I can pass judgment on somebody when there is no justice. Please allow me to be excused.
SPEAKER_10: Ah, it just, that, it just took them so much time. It took them over a decade. And did they even get anything out of it? I think, I think there is, there is one thing.
SPEAKER_09: Like when I went to visit Joyce, she has a photo hanging on her wall. It's a photo of Joyce and Jason at the Supreme Court. You guys look really happy in the photo. They're like both beaming.
SPEAKER_15: Well, we were happy to have a chance to get our case out. Yeah.
SPEAKER_09: So, but you keep the, I mean, like when you look at that, that's like a positive memory for you or? Yes, it is.
SPEAKER_15: You know, kind of the case of unintended consequences. So after the Supreme Court decided the case, you know, there was this new Daubert standard and it was adopted by federal courts.
SPEAKER_09: It was adopted by most states. And so I think in 1995, prosecutors wanted to introduce DNA evidence to prove that, you know, a blood stain came from a certain person. And at the time, DNA wasn't generally accepted. It was something that was new. It was novel, but sort of the judge applied the Daubert standard to DNA. It got admitted as evidence and it, and it sort of like became this gold standard. It's totally revolutionized the way that criminal courts, you know, look at evidence. And, you know, it's been used to prove people guilty of murders. DNA has helped get innocent people off of death row. Whenever somebody is released from jail because the DNA has exonerated them, we feel very good that we were able to do that.
SPEAKER_09: Their name has been invoked in sort of like in a way that allows people who are accused of crimes to like credibly question the prosecution, incredibly question the state's experts. And what happens is it's sort of, Daubert has sort of shown that all these bedrock techniques, these forensic techniques that are sort of like all over in the courts, they aren't actually rooted in science. They're sort of like these techniques that were developed by law enforcement to prove people guilty. And, you know, this includes like bite marks, ballistics, matching tire marks, blood spatter, shoe prints, even fingerprints. I mean, like all these, all these disciplines, like, you know, they don't actually meet the requirements of Daubert. And so I think that's a really powerful tool, not just in criminal cases, but in like all cases. So say like, we're not just going to be deferential to authorities. We're not just going to be deferential to the received wisdom of the courts. We're going to say like, well, using the scientific method, like how do you prove that? Huh. So it's like a tool for someone who is somewhat powerless.
SPEAKER_05: It's giving someone a little bit of a chance to kind of scrutinize the reason that they are being like said to be guilty. It gives them like one more. Yeah. I think like if you're, if you're deciding like really important things, if you're deciding, you know, like if you're, if you're trying to prove somebody guilty of murder, if you're, if someone, someone has died of asphyxiation and not a drug overdose, if vaccines cause neurological injury, if chemicals are leaching out into the water.
SPEAKER_09: I mean, the list goes on and on and on. But if you're deciding any one of those things, you really, I would really hope that like, you know, we use the best available science. Like this isn't a theocracy. We need to like, we need to use the tools that scientists have developed to understand the world and like apply those in the context of the law. You know, like the law is demanding answers and like science doesn't always have the answers, but at least we can use the methods of science to like guide people to like get up a little bit more. Get up a little bit closer to the science. Do you think Daubert does that though?
SPEAKER_05: Do you think Daubert helps us get to the best available science? Are you, are you Peter who's looked at it so closely? Like, do you feel like it is a good kind of metric or gateway set of checks? Like, well, do you think it is the good standard? No.
SPEAKER_09: Yeah. I mean, I know honestly, I think that Daubert can and should be used as like a force for, for social good. But, but that said, I think that they really does have some, some flaws. And the first thing that you see, if you look at the data on the criminal side, you basically see that like a lot of judges come from the prosecution side. They're, they're more likely to admit evidence that is offered by the prosecution. So sometimes bad forensic science gets admitted and innocent people go to jail. That's bad. And yeah, on the civil side, I think you see that the companies have sort of endless resources, deep pockets. They're able to fund research that can sort of be used to disprove this litigation. So these big money interests can essentially undermine the credibility of, of the plaintiff's expert. So I think it's an imperfect standard, but I think that like there is no perfect standard. I think that's the real problem is that if we are going to have judges and juries who are non-scientists deciding these things that, you know, I think it's just a, it's a problem that's like inherent in your constitutional right to a trial by jury. Like, I don't think we're going to have a perfect standard. Right.
SPEAKER_05: But I guess there is the question of, is this even that much better if the judge still holds the power to toss science out? Right.
SPEAKER_07: Yeah, this is definitely something that Jason talked about.
SPEAKER_07: For us, a big part of it also is chance, right? Like if we'd gotten a different judge, we might've had a different, like we might've had a better chance at at least getting in the door. That's really my big thing. Like I could have dealt with going to trial and losing. That would have been not ideal, but doable, but not even getting to go to trial. And again, I understand the basic idea, right? Like you don't want to allow any crank in the perpetual motion machine into court. I get it. Absolutely. And cranks can look pretty respectable. There's that too. You've got that problem. So you've got lots of different things you've got to guard against. I get it. So, and I mean, it's possible. Like I say, I could be wrong. I could be the crank unknowingly. I don't think so. But like, it's not that I know that Bendectin caused my birth defects. It is that I think it's probable. And I fully admit I could be wrong. And on the other hand, I didn't even get a chance in court to show it one way or the other. That's a problem, right? When it all comes down to one person deciding whether you could even go to court or not. Or whether your science is bright and true or not.
SPEAKER_09: Yeah. So. Well, do you kind of think that Bendectin didn't cause the birth defects?
SPEAKER_03: Yeah, I don't actually know. I think, you know, what I'm saying is we know what the epidemiological evidence showed.
SPEAKER_15: And I don't think that that evidence necessarily disproved that the drug caused Jason's birth defect.
SPEAKER_09: I think it's just that it's not that it's not a good thing. It's just that it's not a good thing. I don't think that that evidence necessarily disproved that the drug caused Jason's injuries. But I also think, yeah, I think there's a lot of uncertainty there. Well, I guess, you know, that's why we go to court.
SPEAKER_15: And everybody presents their evidence and then we decide.
SPEAKER_10: A quick note. In the course of this reporting, Barry Nace, the lead attorney for the Dauberts, died in 2021. The only way we were actually able to hear from him is because Peter had spent the last three years reporting this story. And for that, we really want to thank Peter immensely for bringing it to us. This story was produced by Matt Keelty with production and reporting assistance from Sarikari.
SPEAKER_05: Special thanks to Leah Lippman, Rachel Rebouche, Jennifer Manukin, David Savitz.
SPEAKER_10: And especially Brooke Burrell and Tom Zeller Jr., editors at Undark magazine, who originally published a version of this story in 2020.
SPEAKER_05: It's a terrific magazine. Check it out.
SPEAKER_10: So good. Check it. I'm Latif Nasr. I'm Lulu Miller. Thanks for listening.
SPEAKER_01: Radiolab was created by Jad Abungrad and is edited by Soren Wheeler. Lulu Miller and Latif Nasr are our co-hosts. Suzy Lechtenberg is our executive producer. Dylan Keefe is our director of sound design. Our staff includes Simon Adler, Jeremy Blum, Becca Bressler, Rachel Cusick, W. Harry Fortuna, David Gable, Maria Paz Gutierrez, Sindhu Nenasabundam, Matt Keelty, Annie McEwen, Alex Neeson, Sarikari, Ana Roskowitz-Paz, Sarah Sandback, Arianne Wack, Pat Walters, and Molly Webster, with help from Bowen Wong. Our fact checkers are Diane Kelly, Emily Krieger, and Natalie Middleton.
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