Title: On the Prospect of “Daubertizing” Judicial Review of Risk Assessment
Abstract: I INTRODUCTION In Daubert v. Merrell Dow Pharmaceuticals, Inc., (1) the Supreme Court assigned a gatekeeper role to federal district courts hearing cases involving expert testimony. Daubert requires trial judges to so acquaint themselves with the scientific underpinnings of expert testimony in common-law litigation that they can determine whether that testimony represents a sufficiently sound application of scientific principles to a sufficiently robust set of scientific data to justify the expert's scientific conclusions. (2) At the same time, the trial judge is obliged to determine whether the scientific testimony is relevant to factual determinations the jury must make--that is, whether the information fits the issues raised by the case. (3) In the decade following the Supreme Court's decision, it has become quite clear that Daubert has had a profoundly negative impact on plaintiffs' attorneys' use of common-law torts to hold companies accountable for the adverse effects of their products and byproducts on human health and the environment. (4) Attorneys for companies successfully using Daubert to avoid such accountability now urge the federal courts to assume a similar gatekeeper role in reviewing risk assessments undertaken by federal regulatory agencies. Lawyers for companies subject to federal health, safety, and environmental regulation hope that stringent substantive judicial review will relieve their clients of the burdens of much substantive regulation without the need for troublesome legislative battles they seem unable to win. Such stringent review would require the courts to evaluate the scientific conclusions underlying agency risk assessments with a Daubert-inspired corpuscular approach. (5) Assigning a Daubert-like gatekeeper role to courts engaged in judicial review of agency risk assessments is a profoundly bad idea. First, federal judges are not qualified to undertake strict scrutiny of the scientific bases for risk-assessment data and analysis. Judges' limited competence in areas involving scientific data and analysis, complex modeling exercises, and large uncertainties is well recognized in administrative law and has been effectively demonstrated by the courts themselves in post-Daubert toxic torts opinions. Second, because risk assessment is not a purely scientific enterprise, Daubertizing judicial review of agency risk assessments will bestow upon the courts a policymaking role that is entirely inappropriate for a politically unaccountable institution. Third, the agencies preparing these risk assessments are, as part of the executive branch, performing a function assigned to them by the legislative branch. So the potential for aggrandizing judicial power through intensifying judicial scrutiny of the science-policy determinations underlying agency-prepared risk assessments raises serious institutional issues not present in Daubert-style review of expert testimony in private tort litigation. Finally, the Daubertization of agency risk assessments would have a predictable impact on regulatory policy running directly counter to the precautionary policies animating most health, safety, and environmental statutes. The proponents of strict judicial risk-assessment scrutiny have a clear, normative agenda in mind. Having failed during the 104th Congress to reign in federal regulatory agencies by enacting sometimes draconian regulatory-reform legislation, (6) regulatory reformers are now attempting to gain regulatory relief in the courts by subtly assigning a more activist role to judges, who are perceived to be more sympathetic to their goals than Congress. (7) The courts should forcefully reject this invitation to reform protective health, safety, and environmental regulation to fit these judges' concepts of the proper role for federal regulation in society. II DAUBERT AND THE CORPUSCULAR APPROACH TO SCIENTIFIC EVIDENCE A. The Nature of Risk Assessment Risk assessment is an analytical process that uses available scientific information on the properties of an agent and its effects in biological systems to provide an evaluation of the potential for harm as a consequence of environmental exposure to the agent. …
Publication Year: 2003
Publication Date: 2003-09-22
Language: en
Type: article
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Cited By Count: 16
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