Experts say independent scientific panels useful in advising judges in complex cases

March 14, 2000

(Embargoed) CHAPEL HILL - Judges and juries face significant challenges when trying to unravel testimony of expert witnesses in courtroom trials. Highly paid consultants for both plaintiffs and defendants spar with one another, giving often-conflicting opinions aimed at swaying decisions that can involve millions or even billions of dollars.

How can the legal system cut through the verbal clutter and presumed scientific evidence to help those who decide make fair judgments?

In 1996, Sam C. Pointer Jr. of Alabama, the judge overseeing all federal cases involving silicone-gel-filled breast implants -- and alleged damage to the health of women who received them -- took a step unprecedented in scope. Pointer decided to create an independent, impartial panel of scientists to advise the court on scientific evidence pertaining to breast implants.

A report on that panel's work beginning in fall 1996 appears in Thursday's issue (March 16) of the New England Journal of Medicine. Authors are Drs. Barbara S. Hulka of the University of North Carolina at Chapel Hill School of Public Health, Nancy L. Kerkvliet of Oregon State University and Peter Tugwell of Ottawa General Hospital. Respectively, they are experts in epidemiology, toxicology and rheumatology.

"On the basis of our experiences as members of the National Science Panel for the breast-implant litigation, we have made recommendations for use of similar panels in the future," the three wrote. "We believe that such panels should be used more frequently, because they can bring unbiased information about complex scientific and medical issues into the courtroom."

After many months work, which included finding, combining and analyzing data from the vast scientific literature on silicone breast implants, the panel found no evidence that the implants caused connective tissue diseases. Patients who developed rheumatoid arthritis, lupus erythematosus, scleroderma or other systemic conditions likely did so for other reasons, they concluded.

A second paper detailing their synthesis of epidemiologic studies, which researchers call a meta-analysis, also appears in the March 16 issue of the New England Journal of Medicine. Pointer put the entire report on a breast-litigation Web site in late November, 1998, and his action stirred strong interest among reporters, scientists and lawyers.

Among concerns that arose in connection with the panel's work were decisions to videotape depositions for use in courtrooms throughout the country and to give to attorneys all the scientists' notes and working papers usually considered private.

"The only unexpected event during the videotaped depositions was the admission to the courtroom of a person who, although not a member of either legal team, was allowed to cross-examine one panel member and mount an attack on the member's character and qualifications," the three wrote.

"Although cross-examination of expert witnesses with the intention of diminishing their credibility is a standard part of the adversarial process, a court-appointed scientist, whose character and qualifications have already been established through the nomination-and-selection process, should not be subjected to this type of attack."

Among the authors' recommendations for future panels -- ideas that take into account the cultural chasm between scientists and lawyers -- are that future scientific panel members should be:

• given an initial orientation regarding the legal process so that they will know what to expect overall, what will be considered admissible evidence and what must be confidential.

• provided concrete and explicit written instructions.

• allowed to communicate freely with one another and to obtain scientific information from other experts.

• told what specifically is expected of them and when.

• shielded from personal and professional attack and intrusive mining of notes and other preliminary work.

• assured of enough time from lawyers appointed to represent the panel members.

Hulka, Kerkvliet and Tugwell stressed the importance of involving outside experts to supplement panel members' own scientific expertise.

"Although small in comparison with the monetary claims in the breast-implant litigation, the costs incurred by our panel were substantial, largely because the work took much longer than predicted," they wrote. "Our recommendations should help subsequent panels function more efficiently. In addition, the costs incurred by selection panels will be reduced substantially if the members of scientific panels are selected from registries such as those recently established by Duke University Law School's Private Adjudication Center and the American Association for the Advancement of Science." Their panel succeeded in carrying out its task, the three said.

"The final report was favorably received by the scientific community and has influenced pending litigation," they wrote. "The usefulness of the videotaped depositions has yet to be determined."
-end-
Note: Hulka can be reached at (919) 966-7412 on Monday, March 13 until 4 p.m. and at 933-2243 in the evening. After that, she will be at (949) 721-2200 (a meeting) and (949) 759-0808 (her hotel) until March 19, when she will return to Chapel Hill. The full report can be found at http://www.fjc.gov/BREIMLIT/SCIENCE/report.htm.

University of North Carolina at Chapel Hill

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