Lee Tilson, Sommers, Schwartz, et al.
Standards for admissibility of scientific evidence in trial as set forth by the United States Supreme Court in Daubert, Joiner and Kuhmo Tire are corrupting the scientific literature. According to these decisions, judges must evaluate several criteria before allowing expert scientific testimony, including whether the opinion can be (and has been) tested , whether the opinion has been subjected to peer review and publication, and whether it is generally accepted in the scientific community.
These decisions reflect a misunderstanding of scientific reasoning, philosophy of science (the Daubert opinion explicitly cites Hempel and Popper), and the reality that those who control the publication of scientific literature typically are those with a direct financial stake in the enterprise - i.e. potential defendants in tort cases. Daubert allows professions to minimize the liability of their members by encouraging publication of articles intended to defend lawsuits. Most commonly, the manufactured literature focuses on discounting a crucial element of any tort suit: causation, i.e. that the wrongful (negligent or intentional) act causes the type of injury in question. But once the literature is published in distinguished and reputable publications, it is believed and trusted. After all, the articles do not carry a warning label: "doctors and patients should not rely on the conclusions in this article because it is published for the purpose of defending lawsuits." Tort defendants can cite such published misinformation in a Daubert motion to exclude evidence against them. Lawsuits are dismissed. Authors of such misinformation become heroes.
The misinformation appears in leading journals and is reported in newspapers. Professional organizations take positions on related issues. Agencies funding medical research consider the literature when deciding which projects to fund. News shows discuss it on TV. Doctors, nurses and patients all rely on it. At the very least, the medical community and the public are entitled to accurate information.
We are paying a heavy price for allowing this misinformation encouraged by Daubert. The effect of the corruption of the literature extends well beyond the courtroom. This paper discusses two papers cited in Daubert motions which have changed the foundations and practice of modern obstetrics.
Birth trauma cases, which seek to collect damages for a lifetime of care for a neurologically injured child, comprise the cases with the largest verdict potential. The stakes in this type of litigation are high, precisely because the injury is profound. This paper demonstrates that two of the most celebrated items in the obstetrical literature rely on subtle logical fallacies. Yet they are embraced by the National Institutes of Health and the American College of Obstetricians and Gynecologists. They are used to defend lawsuits by disproving a causal connection between fetal asphyxia (see below: 1) and cerebral palsy. These two articles affect how physicians react to signs of fetal asphyxia in labor. Once drilled into obstetricians' heads that fetal asphyxia does not (or almost never) cause(s) injury, obstetricians become less likely to intervene promptly when warnings of fetal asphyxia appear. Ironically, the literature was designed to discourage birth trauma lawsuits.
But it results in delays in reacting to signs of fetal asphyxia, asphyxiated newborns, and subsequent lawsuits. Based on a misunderstanding of science, the Daubert decision now actively corrupts science. It rewards publication of scientific misinformation. More importantly, as a result of its application to the field of obstetrics, Daubert results in asphyxiated fetuses and brain damaged children. Its application to other "scientific" subjects will produce misinformation in the professional literature and, sadly, human injuries.
This paper will demonstrate the value of analytic philosophy tools in dealing with non-philosophical subject matters, and the enormous value of philosophical training for non-philosophers.
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(1) Fetal metabolism depends on oxygen supplied by the placenta and umbilical cord. Placental dysfunction caused by obstetrical complications (such as gestational hypertension, gestational diabetes, and postdatism) and umbilical cord compression ( as the uterus contracts and pushes the baby through the birth canal) threaten the fetal oxygen supply. The fetal brain is not immune to asphyxia. Because the motor cortex is farthest from the large blood vessels (think 'irrigation system') oxygen deprivation is often believed to damage the motor cortex first, resulting in a "cerebral" origin of a motor deficit, thus the phrase "cerebral palsy."