10.14.2011

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Updates

On September 28, 2011, the National Research Council released the long-awaited third edition of the Reference Manual on Scientific Evidence (the "Manual"). The third edition of the Manual is a joint publication of the Federal Judicial Center, which is the research and educational arm of the federal judges, and the National Academies, an organization of America's foremost scientists, engineers and doctors. Developed to guide judges as they encounter scientific evidence at trials, it updates an edition published in 2000 by the Federal Judicial Center and includes new chapters, called reference guides, on neuroscience, exposure science, mental health and forensic science and a completely revised chapter on engineering. 

For the first time, the new edition was rigorously peer reviewed in accordance with the procedures of the National Research Council. According to its charter, the National Research Council enlists the nation's top scientists, engineers and other experts to provide advice on significant matters of science, technology and medicine. This edition has the National Academies' seal of approval as a fair and accurate report on the science in each of the areas of potential legal evidence addressed in this version of the Manual and, as a result, should be given considerable weight by judges and litigants. 

The first edition of the Manual was published by the Federal Judicial Center in 1994 soon after the U.S. Supreme Court's landmark decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1973), which instructed trial judges to act as "gatekeepers" in determining whether the testimony of an expert offered by a party in the case should be admitted in view of the expert's scientific reasoning and methodology. The Federal Judicial Center published a second edition in 2000 in the wake of the Supreme Court's decisions in General Electric Co. v. Joiner, 522 U.S. 136 (1997) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). The disputed issue in all three cases was causation. Thus, each edition of the Manual addresses causation in the broad sense and has application to any case where scientific evidence is involved. The third edition of the Manual should have even more significance than the first two editions to cases with such causation issues because of the leadership of the National Academies in determining the content of the reference guides. 

Many of the reference guides are coauthored by one or more scientists and someone from the legal community. For example, the "Reference Guide on Engineering" was coauthored by two engineers, one of whom is a National Academies member, and Perkins Coie Partner David Black. Black was one of two practicing attorneys who were chosen to be an author of a reference guide. 

As with previous editions of the Manual, the reference guides are not intended to instruct judges as to what evidence should be admissible or to establish minimum standards for the admission of certain scientific evidence. They are intended, as the Preface states, to provide "tools for judges to manage cases involving complex scientific and technical evidence."  

As the Preface further states: 

… [T]he guides can assist judges in identifying the issues most commonly in dispute in these selected areas and in reaching an informed and reasoned assessment concerning the basis of expert evidence. They are designed to facilitate the process of identifying and narrowing issues concerning scientific evidence by outlining for judges the pivotal issues in the areas of science that are often subject to dispute.

Clients who are involved in litigation where scientific evidence is likely to be admitted should be familiar with this publication. Some of the new areas addressed in this edition of the Manual are highlighted below. 

1. "Reference Guide on Engineering" (Completely Rewritten) 

  • Describes the engineer's approach to solving problems and compares that approach with the scientific method. 

     

  • Describes the design process, which begins with conception, moving on to testing and the decision to market a product with or without warnings or other safeguards, and which continues through post-market feedback based on the performance of the product and includes decisions regarding product modification, warnings or other safeguards and may involve discontinuation and/or recall. 

     

  • Describes the engineer's use of the concepts of safety and risk in design. 

     

  • Addresses several recurring issues in engineering testimony, such as standard of care, state of the art and best practices and the engineering basis for the use of simulations and other demonstrative evidence. 

The types of cases to which this guide may apply include products liability litigation, especially cases involving pharmaceuticals and medical devices; commercial litigation; intellectual property litigation; and environmental litigation. 

2. "Reference Guide on Exposure" (New) 

  • Addresses evidence regarding the measurement of exposures to toxic substances allegedly experienced by those alleging harm, particularly in matters where the magnitude of such exposure is an important component of the needed evidence. 

     

  • Such issues are to be distinguished from those addressed in separate previously existing reference guides on epidemiology, toxicology and medical testimony, which were brought up to date in this edition. 

The types of cases to which the "Reference Guide on Exposure" may apply include workplace litigation about chemicals; environmental litigation; products liability litigation, especially cases involving chemicals such as pesticides and pharmaceuticals; and toxic tort and other tort litigation, especially cases with claims of disease causation. 

3. Other New Reference Guides

      • "Reference Guide on Forensic Identification Expertise." This reference guide contains the 2009 study published by the National Research Council for the National Academies reporting on whether there are scientific bases for identification techniques that are offered as support for expert testimony sought to be introduced under the rubric of forensic science, particularly in criminal cases. It is distinguishable from a separate previously existing reference guide on DNA Identification Evidence, which is also revised in this edition of the Manual. 

         

      • "Reference Guide on Neuroscience." This reference guide addresses issues regarding the introduction of expert findings and conclusions relating to the functioning of the brain offered as proof in cases where there are such issues as mental capacity or truthfulness or where one's mental state or condition is relevant. Examples include criminal cases and those in which lie detection results are or may be relevant.  

         

      • "Reference Guide on Mental Health Evidence." This reference guide addresses issues concerning expert testimony offered by a mental health expert on such issues as defendants' mental state at the time that an alleged offense was committed and competency to stand trial in criminal cases. In the civil context, such evidence regarding competency issues may arise in personal injury cases where emotional harm may be alleged; in contract cases and in wills, trust and gift cases, where competency may be an issue; and in guardianship proceedings.

4. Updates of Reference Guides Already Present in Earlier Editions of the Manual 

The third edition includes an updated chapter providing an overview of the admissibility of expert testimony under Daubert, as well as an updated chapter on how science works. The Manual also includes updates of reference guides on statistics, multiple regression, survey research, epidemiology, toxicology, medical testimony and DNA identification evidence. 

All of the reference guides set forth the basic principles of each scientific field and concrete examples of situations where those principles have led to the offer of legal evidence. Many of the reference guides also include definitions of the basic terms used in the guide. 

Practical Significance of the New Edition of the Reference Manual

During the approximately 5-year period during which this edition was in development, a committee of judges, scientists and academics conducted hearings and prepared a survey to federal judges inquiring about their use of the Manual. Many federal judges who responded to the survey or participated in the hearings stated that they used the Manual regularly as an unbiased and reliable source of information and guidance in deciding complex questions concerning the admissibility of scientific evidence under Daubert. They stated their view that briefing submitted by litigants and expert submissions were not an effective way to learn about the basic science and the reliability and relevance of evidence sought to be offered in the case. 

This edition took several years to complete in part because the content was carefully reviewed by scientists and others chosen by the National Research Council under its peer-review methods. For that reason and because this is the first revision of the Manual in more than 10 years, the Manual should have added significance to judges and litigants in both federal and state court cases. For litigants who commonly face issues where engineering and exposure evidence is sought to be introduced, the Manual provides new instruction regarding how such evidence can be organized and effectively presented. Those guides should be particularly helpful in cases where a corporation's conduct is at the center of the claims or defenses. 

There has been a significant and immediate response to this edition. According to a recent National Academies newsletter, "Embargoed copies of this much anticipated new edition were requested by more than twenty credentialed reporters, and in the week since the manual was released, there have been more than 4000 downloads of the electronic version of the volume." Copies of the Manual have been provided to all federal judges (appellate, district, magistrate and bankruptcy). 

We urge you to become familiar with the new Manual, or at least the portions of the Manual that directly address recurring issues in the types of litigation in which you are regularly involved.

© 2011 Perkins Coie LLP