Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 6. Causation
Morning Sickness: A Canadian Follow-Up of an American Tragedy, 9 REPROD. TOXICOLOGY 1, 2-
3 (1995).
Decades later, Bendectin has been vindicated. In 2013, the FDA approved Bendectin
(under the new name Declegis) for use in the American market based on decades of experience
with Bendectin in Europe (where it remained available) and on new evidence discrediting earlier
studies. American obstetricians have long believed that Bendectin is safe, and had been
prescribing a combination of other drugs that closely resembles Bendectin for years as an off-label
treatment for morning sickness. Liz Neporent, FDA Approves Morning Sickness Drug Once
Feared Unsafe, ABC NEWS, Apr. 9, 2013.
How did this happen? One review of transcripts from six Bendectin trials showed that
juries have some systematic biases in evaluating scientific evidence. Every study has
imperfections, and cross-examination excessively highlighted those imperfections, potentially
causing juries to disregard the high-quality studies cited by Merrell Dow. Juries had trouble
weighing the scientific credentials of opposing experts. Juries also appeared to have difficulty
understanding the relative importance of various types of data (epidemiological studies, animal
studies, in vitro studies, etc.) and to have excessively discounted the epidemiological studies from
Merrell Dow, which indicated that Bendectin did not increase the risk of birth defects at a
population level. “If the legal process tends to cause all experts to appear equally qualified,”
concludes one observer, “it also causes all science to appear equally worthy.” Joseph Sanders,
From Science to Evidence: The Testimony on Causation in the Bendectin Cases, 46 STAN. L. REV.
1, 47 (1993).
3. Epidemiological causation and Daubert hearings. The Bendectin trials left their mark on
the procedures for high-stakes tort cases. The Supreme Court, in a Bendectin case, laid out a new
standard under the Federal Rules of Evidence for allowing expert testimony to go to the jury:
Faced with a proffer of expert scientific testimony, then, the trial judge must
determine at the outset . . . whether the expert is proposing to testify to (1) scientific
knowledge that (2) will assist the trier of fact to understand or determine a fact in
issue. This entails a preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid and of whether that
reasoning or methodology properly can be applied to the facts in issue . . . .
We recognize that, in practice, a gatekeeping role for the judge, no matter how
flexible, inevitably on occasion will prevent the jury from learning of authentic
insights and innovations. That, nevertheless, is the balance that is struck by Rules
of Evidence designed not for the exhaustive search for cosmic understanding but
for the particularized resolution of legal disputes.
Daubert v. Merrell Dow Pharms, 509 U.S. 579, 597 (1993). So-called “Daubert hearings,” as
these pre-trial hearings described in Daubert have become known, have dramatically changed
how torts suits are litigated. Plaintiffs must get their experts through the Daubert hearing to the
jury in order to avoid being dismissed on summary judgment. Allan Kanner & M. Ryan Casey,
Daubert and the Disappearing Jury Trial, 69 U. PITT. L. REV. 281 (2007). The percentage of civil
trials in products liability cases that were dismissed on summary judgment jumped from 21% for
48% in the years after the Daubert decision. LLOYD DIXON & BRIAN GILL, RAND INST. FOR CIVIL
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