Carl Cranor on CPRBlog {Bio}

Milward v. Acuity Specialty Products: How the First Circuit Opened Courthouse Doors for Wronged Parties to Present Wider Range of Scientific Evidence

In Daubert v. Merrell-Dow Pharmaceutical,  General Electric. v. Joiner, and Kumho Tire v. Carmichael the U.S. Supreme Court sought to bring principles for reviewing expert testimony in line with the Federal Rules of Evidence. The opinions sought  to ensure that legal arguments would better comport with the pertinent science needed for the legal cases at issue. To achieve this goal the court gave trial judges a greter duty to review expert testimony for relevance and reliability before plaintiffs could bring their case to a jury. Despite these goals, lower courts have struggled with reviewing scientific testimony and evidence. Some courts so restricted expert testimony and its scientific foundation that scientists found it difficult to present basic scientific evidence about the toxicity of chemicals in a courtroom.

An outstanding decision by the First Circuit Court of Appeals this March in Milward v. Acuity Specialty Products (639 F.3d 11 (2011)) contravened numerous mistaken views about scientific methodology, evidence evalualtion and constraints on testimony that had emerged from defendants’ presentations and other courts over time. This decision is precedent for courts in the First Circuit and stands as an example of an excellent analysis of scientific testimony and the role of trial courts for other appellate jurisdictions. As one who had argued in the scholarly literature for the conclusions the court adopted and who served as the scientific methodology expert in this case, it is especially encouraging to see this change in the law.

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How to Diss A Book Without Reading It

When you write a book, particularly one that has something to do with matters political, you have to expect criticism. So when I wrote Legally Poisoned: How the Law Puts Us at Risk from Toxicants (Harvard, 2011), I fully expected it to take a shot or two – not just from some of my colleagues in academia, but also from allies of the chemical industry.

In fact, since this book isn’t exactly my first rodeo, I’ve grown accustomed to reviewers who sometimes misstate some of the specifics of what I’ve written or mangle an idea or two. But they’re usually mistakes made in good faith, or at least that’s been my impression.

So it came as a surprise to me to read the review of Legally Poisoned written by Henry Miller, M.S., M.D., of the Hoover Institution and adjunct fellow of the Competitive Enterprise Institute. Miller’s got a long history of working to defend potential hazards from regulation, including formerly as a trustee for the corporate funded American Council on Science and Health, so it’s no surprise he didn’t care for my book. What surprised me was that his review suggests that he didn’t bother to read much of it before attacking it.

Legally Poisoned is based on recent research into the developmental origins of disease, and it addresses risks posed to developing children by human-created chemicals. Some of those chemicals have already caused harm; others appear to pose serious risks. But disturbingly, we know very little about the nature of the toxicity for the vast majority, because we have insufficient research on their toxicity and how dangerous they might or might not be.

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