Radiolab - The Gatekeeper

Episode Date: July 15, 2022

This week, Reporter Peter Smith and Senior Producer Matt Kielty tell the story of the U.S. Supreme Court decision that set the standard for scientific expertise in a courtroom, i.e., whether an expert can testify in a lawsuit. They also tell the story of the Daubert family — yes, the Dauberts of “Daubert v Merrell Dow” — whose win before the nine justices translated into a deeper loss. Special thanks to Leah Litman, Rachel Rebouche, Jennifer Mnookin, David Savitz, Brooke Borel, and Tom Zeller Jr. Credits: Reporting by Peter Andrey Smith. Produced by Matt Kielty. Reporting and production assistance from Sarah Qari. Fact-checking by Natalie A. Middleton. Editing by Pat Walters. Sound Design by Matt Kielty. Mixing help from Arianne Wack. Citations: If you're interested in reading more from Peter Smith, check out his work over at Undark.org Our newsletter comes out every Wednesday. It includes short essays, recommendations, and details about other ways to interact with the show. Sign up (https://radiolab.org/newsletter)! Radiolab is supported by listeners like you. Support Radiolab by becoming a member of The Lab (https://members.radiolab.org/) today. Follow our show on Instagram, Twitter and Facebook @radiolab, and share your thoughts with us by emailing [e-mail], by the way, Radiolab is looking for a remote intern! If you happen to be a creative, science-obsessed nerd who is interested in learning how to make longform radio… Apply before July 20, 2022! We would LOVE to work with you. You can find more info at wnyc.org/careers.

Wait, you're listening to Radio Lab from WNYC. Alright, 3, 2, 1. Hey, I'm Lula Miller. I'm WattifNasser. This is Radio Lab. And today, you are an Easter egg epic epic epic epic epic epic epic epic epic epic epic epic Three, two, one. Okay. Hey, I'm Lula Miller. I'm WattifNasser. This is Radio Lab. And today, we have a story. We have a story from science journalist Peter Smith.

Okay. I'm going to switch gears pretty dramatically here because I want to start with the big case before the Supreme Court this last session. You will hear argument this morning in case 1913-92. The abortion case. Dobs versus Jackson Women's Health Organization. Because something happened during the arguments that I think most people probably didn't notice. Basically, the lawyer for Mississippi, he's arguing against abortion.

And of course the Supreme Court has already decided the issue of abortion in two previous cases. So they have seen much more calm. What hasn't been at issue? They interrupt him and say, what's different now? He says, just a so to my ear, I think the science has really changed. The last 30 years of advancements in medicine, science, all those things. What are the advancements in medicine?

I think it's an advancement in knowledge and concern about such things as fetal pain, what we know the child is doing and looks like and is fully human and very early. In sort of my, she says this issue of fetal pain, a gross minority of doctors, belief fetal pain exists before 24, 25 weeks. Like it would never make it into the courtroom. And the reason she says is because of a single word. Daubert.

Daubert, or as it's often pronounced, dobert. Daubert. Daubert. By saying this word, she's essentially pronounced, dobert. Dobert. Dobert. By saying this word, she's essentially pulling down the gate that stands between law and science. Now, dobert would only play a tiny, tiny role

in the Supreme Court case. But I wanted to start there because dobert is this thing that sort of goes on notice, but is actually one of the most important parts of shaping what happens inside of a courtroom. And I've actually spent the last eight years reporting on Dobbert and you know it shows up everywhere.

Alright this is the case that stayed against Kyle Rittenhouse. It played a big part in the Kyle Rittenhouse trial, trial in the murder of George Floyd. We're gonna talk about law suits involving Monsanto's failure to warn. Monsanto, Deepwater Horizon, Johnson & Johnson. Johnson & Johnson's Hellgum Powder Products. It's just like all over.

There've been so many analyses written about it. It's been written up in like scientific journals. It's been written up in law reviews because anytime you want to have an expert testify, whether it's about fetal pain or it's about correlation between domestic abuse, human psychology, heavy alcohol abuse and cognitive disorders, use of force or cardiac arrhythmias, sudden Deaths. Pause of death. This is not that kind of death. Whatever expert knowledge they're trying to bring to the court, that person has to pass what's known as the Doberts Standard. And a lot of people I talk to said that Doberts can sort of make

or break your case. Because Doberts essentially decides who gets to come into the courtroom and explain how the world works. That makes sense? It does. Yeah. But it makes me want to know what is the standard. What is the standard?

What is a dober? Yeah, exactly. I was wondering the same thing. And when I started looking into it, I discovered that at the heart of the doberge standard, there is this family, the there is this family. The Dovert family. And one of the things that jumped out to me is that even though their name is everywhere, the story of the family is basically nowhere.

Good morning Peter. Hello. How do you do this? Nice to meet you. Come in please. Sorry, that's how you look. Okay. Good morning. So the doberts are Bill and Joyce. What's the dog's name?

This name is Rocco. And Rocco. He's a maltese, so we needed a little tough name for him because he was a big guy. He was saying, okay, oh, no, settle, settle. So the doberts lived north of San Diego in sort of a high desert area. Sort of about the Borken.

And so Bill, as you might be able to tell, I am not a talker. north of San Diego in sort of a high desert area. Sorry about the parking lot. And so Bill, as you might be able to tell, I am not a talker. Bill didn't really want to revisit this whole saga. Joyce got that gene, I didn't get it. So I mostly interviewed Joyce who's in her 70s, has a big full head of curly white hair. Oh!

Yeah, and so then she took me into a backroom at their house, which is sort of this office space that they have Away from the dog and so he came out here pretty quickly. She started telling me about she and Bill Maybe we're looking back up there is like so how did you guys meet and where we met in college? Where was college? We went to Hiram College. I'm sure you've heard of it It was the Harvard of the Midwest I'm teasing it was about Thousand kids, it was the Harvard of the Midwest. I'm teasing. It was about a thousand kids, and it was different. There's rock, or talking to you.

And um. Anyway. It's the early 70s, Ohio. I graduated, I started teaching. She's a high school Spanish teacher, Bill went off and served in Vietnam. But he got an R&R, a summer off in Hawaii. And I joined them there, and we got married.

Two years later, Bill came back to Ohio. Joyce was still teaching when all of a sudden. I got really sick. Like constantly sick. Just projectile vomiting. She didn't know why. She thought she had a stomach flu. So anyway, I went to the doctor and he said,

well, it might be pregnant. And I said, I assure you, I'm not pregnant. And he said, well, I can give you this pill. It doesn't work for everybody, but I know it's safe because they give it to pregnant women. For morning sickness, so she tries this drug. It didn't help a bit, so I didn't take it anymore. But she was still nauseous all the time. I couldn't keep it anything down, and so I thought, well, I'm going to die.

So anyway, I went back to the day. I was so sick. It was the doctor and the doctor who says, okay, we got to take a pregnancy test. They drew blood as I remember. So it took a few days, you know, to find out. But they get the results back. And it was positive. And just totally.

You know that question that you ask a kid? What do you want to be when you grow up? She said she remembers when she was like eight or nine. Somebody asked her that. And I don't remember what I answered. I know what I wanted to say. I wanted to say I want to be a mother. I always felt like I'd be good at it.

And it would be a wonderful way to live my life, to have children and raise children. The nausea eventually went away and Joyce and Bill picked out names. Yeah, Jessica. We have my life to have children and raise children. The nausea eventually went away and Joyce and Bill picked out names. Yeah, Jessica. For a girl and for a boy. Jason. Also, around this time, they moved out to California.

Started our life here. And then one night in July of 1973, contractions. We took off for the hospital. Nurses greeted her up front. And they come out with a wheelchair. Eventually, they wheeled her into the delivery room, bright lights. It was at my head. Gowned up.

There's doctors and nurses swirling around. Monitoring everything. People are telling her to breathe. Contractions are coming pretty quickly. And finally, someone says... Push. Push. And then suddenly crying. And someone says it's a boy. And then Joyce says,

everything got like dead quiet for a long time. And nobody's really moving or anything. One of the doctors was holding her baby. And I could see his right foot. He said, you know, what's the matter with his foot? Is something wrong with his foot? It looks like there's something missing. What happened to his foot? And then somebody said, oh, yes, and his arm, too.

And I looked at his arm and I thought, oh. It was like twisted up, almost like a little chicken wing. And there were only two fingers. and nobody knew what to tell me and you know So the doctors didn't say anything? They didn't that nobody knew what to say You know everybody's just kind of like scaring around they want to make sure that he's gonna you know survive They don't know how devastating the birth defects are, but they took him to the nursery. They started doing a lot of tests right away so I didn't know if he was alive or Was horrible.

It's terrible and I will tell you the only thing I really remember about You know the hospital room was I got up out of the bed and Walked to the window to see if I was up high enough if I jumped out if I if I could kill myself And what were you thinking in that moment? Well, I just kind of felt like if he's not gonna make it if I'm not gonna go home with a baby Maybe I just shouldn't go home But while she's standing there looking at the window, Joyce has another thought. If this baby does live, he's going to need

the best mother in the world. And I better just step up and make it happen. A few days later, Joyce and Bill leave the hospital with their newborn son. Well, my girlfriends and urgent care doctor. Jason. Exactly. So this is where you live? Yep. Yeah, pretty lucky, honestly.

After Jason left the hospital. He had his first surgery at six months. He had a series of operations. So his arm could function as an assist, which is how he uses it. Do you want to have a seat? Need anything to drink or anything? could function as an assist, which is how he uses it. Do you want to have a seat? Need anything to drink or anything? Jason is now 49 years old. He has a daughter and he lives about 45 minutes from his parents' place. Yep, but yeah, born here a couple of years in Ohio and a couple other places I think as we were growing up. And so when you were living in Ohio, I mean, do you do you remember that at all?

Super vaguely. I don't remember lots about my childhood. It was pretty rough. So when Jason was born, the really big physical difference was his right arm. That arm is much smaller than his left arm. And on his right hand, he only has a thumb and index finger. As a kid, I was painfully aware of how different I was.

Just to remind you, this is the late 70s. So. There really wasn't a blueprint for the doverts. You know, we were making fresh tracks in the snow. Okay, here's a really good example, right? As a child, learning how to tie your shoes, it's a milestone, right? And when it was time to teach Jason how to do all of that.

That took a lot longer for me. It was really a knife in your heart to watch him struggle, but I didn't want him to feel sorry for himself. So she would tell me pretty frequently, kind of whenever I needed to hear it like, if I could give you my right arm, I would do it in a heartbeat, but that's not going to work. There's nothing we can do about it. So how are you going to move through the universe? How are you going to live your life? And so when it came to something like tying his shoes, he'd bend over his feet, you know?

Hold the lace with his mouth and use his left hand to tie his shoe. Or I couldn't cut the nails of my left hand. So then one day I just happened to be fiddling with a Swiss army knife or something, and I realized the way the Swiss army knife works and the little scissors and that, I can actually make that work with my hand

and oh my god, mom, I can cut my own fingernails now. It sounds stupid, but it's like these little things that are, you know, that you just kind of have to come up with. But I think the thing for both of them, the thing that was hardest was dealing with other people. And like when it was time for Jason to go to kindergarten. They wouldn't enroll him in the public school. They said he had to go to the sunshine school. The special needs school because their assumption was I was probably mentally to say

a world as well as physically disabled. So I went to the Catholic school and said to sister Mary Francis or whoever it was. We're not Catholic but we really want Jason to get a typical education. And the sister said, oh we'd love to have a little crippled boy in school. But then she called me up and told me that they couldn't enroll him because the other parents didn't want their kids to go to school with Jason, because he was deformed. They didn't want their kids to have to look at that. Eventually Jason got into the public school and there he says he got bullied. Getting the living crap beat out of me and like elementary school and stuff. And sometimes he'd come home and tell Joyce.

Some kid told him. My mother said, your mother took drugs when she was pregnant and that's why you only have two fingers. And I'd say, what did you say, Jason? And I'd always get that. No, oh. But Joyce said, Jason was little. It came up.

Jason often asked the question, why? Why am I different than I would say to him? And I mean, everybody's different. Sometimes it's on the outside. Sometimes it's on the inside. And it's easy for people to see how you're different, isn't it? Yeah, it is. OK.

So that's kind of how we dealt with those things. And Jason said, is he got older that the question sort of fell away. Of course, you know, what happened to Jason could have been some random genetic mutation, but for Joyce, I wanted to know. She felt responsible. You know, it was my fault. It was my pregnancy and something went wrong. I didn't do it right. Something went wrong. She and Bill had genetic test done from everything they could tell. They ran basically no higher risk than any other couple. I was careful about eating a healthy diet and, you know, no alcohol.

I was looking through some of the medical records and they say there's no exposure to toxins or chemicals. I worked at having a healthy baby I worked at it. I knew what I was supposed to do and I did it and so when it came to Jason's birth defects We don't you know we don't know we don't know what happened I guess I was also trying to figure out when did you when did you first like put it together? When I first went to school when I first went back to teaching. This is 1983, Joyce's is back teaching Spanish. And by this point, there's Jason and Jessica, his little sister, their 10 and 9 years old. They would walk to school together in the morning and...

After school, they would all walk home. And one of our first routines was when we hit the house, you know, we'd get the paper out of the driveway and come in. Make some snacks inside. And then I'd sit down on the couch, one kid here, one kid here, and I've got the paper. They would read the paper. It's so sweet and nerds.

Yeah, they would all sit down and read the comics together. The kids loved that. So one day, Joyce is flipping through the paper to get to the comics. And then, she saw a photo of a little girl the kids love that. So one day Joyce is flipping through the paper to get to the comics and then she saw a photo of a little girl with an arm exactly like Jason's and Jason looks at it and Jessica looks at it and I'm looking at it and Jason just gets up and goes to the drawer where the scissors are and brings me the scissors so I could cut out the article. And the article is about this little girl and her family who had just won a

settlement against Merrill Dow which is a pharmaceutical company that made a drug called Vendectin, a drug for morning sickness. I got really sick. And Joyce was like oh the doctor. I can give you this pill. It's called Bend Decton. That's what he gave me. And it doesn't work for everybody. And it was at that moment Joyce was like, maybe I have the answer. And her quest to find out if she did,

would change how we judge what's true in this country. Stay with us. Lulu, Radialab, Back with Peter, Pierre, Smith. Should I just do a quick recap? Yeah, remind me where we left off. Where we were. Yeah, so the summer of 1983, Joyce saw a newspaper article with photo of a girl whose arm looked remarkably similar to her son's. Right.

But I put it aside because I had dinner to make. We had homework to do, you know, all that kind of stuff. But pretty quickly thereafter, she decides to call direct resistance, get in touch with this family. I call. Talks to the family, gets their lawyer's name. And I got his phone number. And I called him the next day.

How many days have you dirt your call? Yeah, I just received a call from Barry. My name is Peter Smith. Okay, one moment, please. His name is Barry Nase. Hello. We're connected again. Yeah.

Okay, great. Thanks for the call. Yeah, I put you on speakerphone because I wear hearing aids. Oh, okay. It's much easier for me. There's nobody else here. Okay. So Barry had a lot of it's in DC.

My background was chemistry and biology. He was doing medical malpractice. And one day this little girl's family came to him with a problem about bendectin. I did not much about bendectin, but I learned a few things. He's like, try to decase, and I won. Was he surprised to hear from you? Yes, and he was very supportive. And very basically had two questions for Joyce.

Was there evidence of the pharmaceutical product being taken and when was it taken? He said it causes birth defects. If you take it early on in the pregnancy and I said, oh, hey, and I asked him, I said, would you be our attorney too? And he said, yeah, you know, we'll have to figure out how to do it because we're in a different district and, you know, all that kind of stuff. But the case wasn't hers necessarily. Right. So it was ultimately Jason's case to be made, but he was a minor. He was 10. But I do remember my mom asking basically,

and like, hey, this is going to be a, you know, probably not an easy thing to do, but if you want to, we can do it. Why did you want to do it? Did you have a, yeah. Like, if I remember right, my mom basically pointed out that like, hey, if this is true and there's A problem with this drug. We don't want other people taking it so to me it felt like really easy decision and

That's how everything started So when you looked at the case you said it seems like another sort of slam dunk case or yeah, I write slam dunk Yeah, that's not even read between the lines. It wasn't a slam doc. No, even with the case you want with any case like this. The hardest thing is how do we show causation? And so trying to figure out exactly what my conception date was. Mary had this strategy. Seen here's the prescription. Prove the drug was taken. Referred for genetic testing. Elimin eliminate any other possible crime, and use whatever science you have to make the case to a jury, and probably the strongest evidence they had were these animal studies.

Well, I had read a story in Mother Jones, which was about the whole issue of Bendectin, which actually brings us to this researcher, this guy, Stuart Newman. I was at New York Medical College where I still am. He'd read this article about Bendeckton. It was said to affect the limbs and I was a limb researcher, limb development researcher. I was working experimentally by taking cells from chicken embryos and seeing how the cells interacted with each other to form the limb bones. Back then, you couldn't do it on human embryos.

No. No. No, not at all. And so Stuart was saying, like, basically, at this early stage of cellular development, like what happens in a chicken when it's limb forms is essentially the same thing that happens in a human. Oh, interesting.

And so one day, he gets a call from a lawyer who asked him if he can look into a bend acting. And he said, sure. So I looked into the literature to see whether it had been used in the kinds of experiments that I do. And in fact, there were a couple of papers. One of them was from the NIH, the National Institute of Health. Using chicken cells.

Or they took these chicken cells, put them in a Petri dish, added the drug. And they found that the drug impaired differentiation and impaired growth. Basically, the cartilage isn't forming. There's bones missing. Things aren't separating properly. It was harming the limb cells.

And so he thought if it could do it in a chicken, it could do it in a human? Yes. Exactly. It could. This drug is capable of impairing the development of the limb. He eventually becomes an expert witness in these cases, the mendectant cases, and including choices. So, he was submitting depositions and he was sort of on call for the trial.

Okay, so they do get, it sounds like it's a pretty solid case in a way. Yeah. They had a lot of good evidence. They'd spent like six years putting together all this stuff, like animal studies, the prescriptions, the genetic tests. They felt that the evidence was real good. And I think that the lawyers sort of like reassured Joyce that they were very, you know, kind of the, what they said was that was very sexy.

It's a very sexy case. And they said you're going to be the best witness in the world. So like after all these years they finally get a trial date. It's set and right before they're scheduled to go to trial she gets a call from her attorney and Joyce is expecting like a pep dog or something and her lawyer says basically the judge has thrown out our case. Why? Not going to trial at all. It was shocking. Everybody was very shocked. For lawyer says, basically the judges thrown out our case. Why? Not going to trial at all.

It was shocking. Everybody was very shocked. You really want to get into court and testify before a jury. Yes, I did. And so. Absolutely. I very much wanted that. I wanted to have my day in court.

So it's like they had the scientific studies. They had the precedent. They had like heart wrenchwrenching testimony, like it sounds like they have everything on their side. Yeah, but basically the judge received a motion to toss out the case from the attorneys for Marldale, one of whom was... Sure, Pam Yeats.

I was a one-year lawyer and I had been put in charge of claims of birth defects due to bed-dected. So just like Barry, Pam went out looking for research to build her case. And pretty quickly she came across the animal studies. They're compelling, but Pam thought she had a better argument. Which is when you're trying to establish causation in a human, you go to the human data. It turns out there was some human data starting to emerge.

By Dr. Steven Lamb. I was an epidemiologist. This is Steven Lamb. I had been at CDC, the WHO, various regulatory agencies. He'd been hired by a judge in Ohio to look at Bendec did as sort of an independent expert. Correct. So first step.

First step is to collect all the relevant scientific studies. He ends up with about 30 different studies. Correct. And like how long does this process take? A couple of days. A large number of months. Maybe about six months. Then he started pulling out. Had Bendeck did all the numbers.

Did not have Bendeck did from every study. What birth defects were identified in the child? And so what he ended up with was the largest collection of human data that I better masked on Bendectin. It looked at 13,000 women who had taken the drug compared with tens of thousands who had it. And so what you then do is you look at the effects and the risk in both those groups and you compare them.

And so what he found was in the group of women who hadn't taken beddectin, you had a rate of children born with birth defects. Of about three per hundred. Which is the average background rate. And then in the group of women who had taken beddectin, you also had a rate of about three per hundred. So the question was, does beddectin actually carry a higher risk for birth defects?

The answer was no. So it's a pretty definitive no as well. Correct. Correct. And so when it came to Jason's birth defects... How can you say it's the drag? Right before the trial, Pam submitted this motion to the judge. We have all this science.

We have the science on our side. They don't have anything Unless they rely on non-human data and the judge agreed he Post out the case entirely but can a judge even do that like Decide which expert out experts the other expert. Yeah, that was that was a real question like do judges even have this power Well, you know like like I would ask, can we appeal this? They appealed to the Ninth Circuit,

and the Ninth Circuit said, yes, a judge can do this, and they have this power because of this rule. Called the fry rule. Fry. F-R-Y-E. This rule from the 1920s that nobody had used, until around the time of the Dover case when all these other bad crazy things started happening.

When there was this supposed epidemic of litigiousness, and so now, at this point in the story, we're entering the quote-unquote litigation bill. And DeGadas through. We're good now. I think so. Hello. We're going to bring in this guy. Michael.

Goddassman. I prefer Mike. Mike's a professor at Georgetown. Georgetown University Law Center. And so I talked to Mike about the role of experts and the role of expert testimony. And so obviously, like, the Dalbert the experts had been kept out of court off the witness stand. But Mike said if you, if you look back, like just immediately before this case, before

the 1980s, there was no idea that you could keep in a civil case an expert off the witness stand. In fact, there were some rules about this, passed by Congress, called the Federal Rules of Evidence. It was basically like let the experts testify. There's an expert letterment to the court. And we rely on the jury to separate the wheat from the chaff. But Mike said once you got to the 1980s, things started to change.

When two major areas of law began to blossom, one was lost to use about drugs, chemicals like daubert, and the other was environmental loss. The suit says these chemicals have already damaged wildlife. And Mike says it was around this time where expert testimony became absolutely crucial. And what started to happen is juries. Struck a blow for veterans.

Started to give out $1.9 billion. Big settlements to plaintiffs. And by the time you get to the Dobbert's case in the late 1980s, early 90s, there was this sort of conservative Handering about junk science, junk science, junk science, using junk science cases where Individual people would sue companies and bring in these experts. The so-called junk scientists who were just basically guns for hire Sometimes they called them saxophones because they were paid to play whatever tune you want them to play.

I play it loud. I think there was like a kernel of truth to this. The two examples that sort of come to my mind is one where a woman who said she had psychic powers went in for a CAT scan and lost her ability to see into the future. She sued the hospital and a jury awarded her a million dollars. There was this bus driver who claimed he got cancer from from bumps in the road, sued the bus company, he also won. And that's the junkiest science that's being used to prove these cases.

So, courts were beginning to become restless about this. And so, they began to be a few judges, including the Ninth Circuit, who went looking around for a way to keep experts out. And they found it in this obscure criminal case from 1923 called fry. That had held that in criminal cases, judges could exclude expert testimony if what the expert was testifying to was not, quote, generally accepted. Which men, if you're an expert and you're going to testify whether that's about epidemiology or engineering or whatever, what you're saying has to be generally accepted by the field you're in.

That's essentially the threshold you have to get passed. It seems like fry. Fry seems to gut check a paradigm. Like is what this expert is saying in consensus with what we all believe at this moment in this field. Yeah, I think you just said it. I think Fri is a pretty good consensus test. So you can't, you can't. She's good actually. Oh, sorry, go. Yeah, it does. Like you can't come in with the rogue wild idea.

Right. But the thing is, Fri was also what was keeping this, these animal studies out of court. The judge was allowed to say, this isn't generally accepted in the field. So without Fri, The judge was allowed to say this isn't generally accepted in the field. And so without fry, the Dobbert's experts would have been able to present that evidence and the jury would decide. But that's what I don't actually understand. Like, was the Stewart-Chicken science, like, was that actually that sketchy?

Do you have a sense of that? No, I don't think it was sketchy. I think it was legitimate science. He was re-analysing previously published studies, but I think- But in terms of causation- To the point of Meldae was attorney, pamiates. There's sort of a pyramid of scientific evidence

where you start with your cell studies, you go to your animal studies, but the human data, the human studies, are really at the top of that pyramid, and that was our argument on that. And that's basically what the judges agreed with. That's what's generally accepted. The doberts in these animal studies, they essentially don't have a case.

And so for Joyce, like, not getting a trial was profoundly disillusioning. Who's job, isn't it everybody's job to protect the innocent and the defenseless? And if you don't stand up and say the truth, you're tacitly endorsing the wrongdoer. And that's when the world goes down the tubes, I think. So that's how I look at it. Radio lab will be back. Right after this short break. You start. Lothar Fluleu, back with Peter. Yeah, so. Raka, go to Steve.

So Jason and Joyce had filed a lawsuit against Meryl Dow. They've gotten kicked out of district court and then sent up the ninth circuit. But then the ninth circuit said, no, as well. Yes, because the fri ruling says, that, that, that, that, get out of my courtroom. So then, I mean, then you're like, we're done or are you? Well, we had to get that stumbling block moved to the side.

And so you know what the next step is. We had to get that stumbling block moved to the side and so You know what the next step is Here argument now number 92 March 30th 1983 Dog bear versus Merrill doll pharmaceuticals. Hank their case goes before the Supreme Court and Jason and Joyce they fly out from California. Jason had to get out of college. I was 20 It had taken him a decade to get to this point. If we went here, we at least have a chance to keep going forward. So it was a very exciting time. So the Dobbert side was argued by Mr. Gautisman. Mike Gautisman. They asked me if I would handle it. Mr. Chief Justice may have pleased the court. Jason Dalbert was born a missing a part of his right arm.

So Mike basically argued that the fry rule that a judge could keep out expert testimony if it was not generally accepted. He's essentially saying like this rule shouldn't be used as she gets tossed out. As to which... And making that argument... And Sandra Day O'Connor jumps in and she says,

if we're going to have an expert come in and talk about science, we should just look at the word. I think the word science is defined as accumulated and accepted knowledge. She's like the fries dandered, it's right there in the definition. Like, so shouldn't the judge have a role?

At the outset, what comes in? And Mike essentially says, no. We should use the rules that the Congress passed. Under the federal rules of evidence, the federal rules of evidence. And the rules of evidence did not give judges that power. The rules gave more power to a jury.

And Mike said there's an argument that the jury is actually better equipped to do this. There's only one judge and there are 12 jurors. The jurors can discuss among themselves what they think. Secondly, the jury will have heard the full testimony of the experts on both sides. Judges are deciding this at an early stage without a trial. They're going to have less exposure to the issue than the jury has. And ultimately, we have a trial by jury system. You know, let the jury decide. Very well, Mr. Gattesman. Mr. Fried will hear from me. So then came the attorney for mail down.

Thank you Mr. Chief Justice and made please the court. And one of the things that stood out to me is that there's a point. Could I ask you a question about the studies in this case, the animal studies as an example? Where the justices start to ask about these animal studies. Are the animal studies themselves insofar as they prove anything about animals? Scientific knowledge within the meaning of the rule in your view? These animal studies, if properly conducted, and some of them were, are scientific knowledge without doubt. But they used, by generally, to raise a suspicion. They are like a scaffolding. But when the building is up, the animal studies drop away. The animal studies cannot support the building which will not stand.

And Chief Justice William Rincredd asks, how are we supposed to know this? We're not the scientists. How are we supposed to determine what's good science and what's junk? And like, is that even our place? You know, you're a lawyer. You're not a doctor. And here you are telling me that certain things are so in the scientific field. You may know, but I don't.

We made a good argument. The case is submitted. They went to a party like afterwards back at their attorneys. Punch and cookies and whatnot. Everybody's pretty excited. At one point, Joyce said one of the lawyers came up to her and he said, you know, that he was so happy to meet me and it was such an interesting case. And he thought that it went well. What did I think? Joyce said she also thought it went pretty well. You just kind of hope justice will be done. Justice will be served. And he said you do know, don't you, that you know, nine of the most important people on the planet. Your name is on their lips. So Joyce went back home and started teaching. And a couple of months later she got a call from one of her attorneys.

And she said, have you heard? And I said, no, I've been in school. And you know, you know nothing. It's like you're in a summering, you know? It's school. And she told me and she said, nine, oh, this is just, you know, we're over the moon about it. We got a reversal.

It's nine zero. Wow. Wow. No one's going to bat for fry. No, nobody went to bat for fry. And essentially, the Supreme Court says we're going to adopt the federal rules of evidence, the liberal admission of experts. We're like, yes, finally, we'll actually get our Dan Court.

This is good. You were going to finally... I failed. Yes, that's what we thought. But, oh no. Because, like, as the opinion keeps going, the justice has to say, we know we just got rid of Fry. This rule that judges have this power

to keep experts out of the court. But we actually think they should have this power. Like, judges should still be gatekeepers of what comes in and what gets tossed out. And when it comes to expert testimony, they made this like bullet point list of things for judges to consider, and it's way more demanding than fry. For example, whether the theory or technique in question has been tested, whether it's

been subjected to peer review or publication, whether it has a known error rate, whether there are standards for control, and then finally, whether it has attracted widespread acceptance within a relevant scientific community. What? This is like, fry plus. This is totally fry. It's double fried. It's quadruple.

It's a quadruple fried. It really is. So, is that what happens? So the dollar, it's case gets kicked back down to the nice circuit and not surprisingly, the lower court, we're not we're not changing our minds now Actually the the judge in this case his name is Alex Kaczynski and and right around this time one of his clerks was Brett Kavanaugh but Anyway, Kaczynski writes this opinion in a way so that he would have the final word on this

Whoa, and that final word is, no, this is absolutely not going to trial. And so point by point, he's essentially taking down each one of the Doverts experts. Like he's saying some of them might have passed like publication and peer review. Some of these studies are credible, but basically there's no direct test,

there's a lack of stats, there's still no consensus about this. I think in the end what he's saying is that just because something seems possible, just because it could cause these injuries does not necessarily mean that it did. They can't prove causality doesn't meet the standard. This whole thing stops here. End of story. If I was this family, I would just hate the justice system so much.

Yes. I would feel so like jerked around. I think that's exactly how Joyce feels. I definitely come to the notion that there is no justice. And I know a couple, I've been called a jury duty. You know, and I say, is there anybody who can't serve my eyes going, you know, I'm jobbered of job versus Maryland down. And I don't I don't believe in justice. This building says, you know, those who seek justice to enter here, I said it turns, it turns my stomach.

There is no justice. I never got my day in court. We had all of this evidence and you know It was a David and Goliath thing and and I never got my day in court and there is no justice And I don't want to sit on this jury and pretend that I can pass judgment on somebody when there is no justice Please allow me to be excused It just that it just took them so much time. It took them over a decade and did they even get anything out of it? I think there is one thing. Like when I went to visit Joyce, she has a photo hanging on her wall. And it's a photo of Joyce and Jason at the at the Supreme Court. You guys look really happy in the photo.

They're like both like beaming. Well, we were happy to have a chance to get our case out. Yeah. Yeah. But you keep the, I mean, like when you look at that, that's like a positive memory for you or. Yes, it is. You know, kind of the case of unintended consequences. So after the Supreme Court decided the case, you know, there was this new Doverts standard

and it was adopted by federal courts, it was adopted by most states. And so I think in 1995, prosecutors wanted to introduce DNA evidence to prove that, you know, a bloodstream came from a certain person. And at the time, DNA wasn't generally accepted. It was something that was new, it was novel, but sort of the judge applied the Dobert standard to DNA. It got admitted as evidence. And it sort of like became this gold standard. It's totally revolutionized the way that criminal courts, you know, look at evidence and it's been used to prove people guilty of murders. DNA has helped get innocent people off of death row.

Whenever somebody's released from jail because the DNA has exonerated them or we feel very good that we were able to do that. Their name has been invoked in sort of like, in a way that allows people who are accused of crimes to like credibly question the prosecution. Incredibly question the state's experts. And what it's, what happens is it's sort of, Dobr just sort of shown that all these bedrock techniques,

these forensic techniques that are sort of like all over in the courts. They aren't actually rooted in science. They're sort of like these techniques that were developed by law enforcement to prove people guilty. And, you know, this includes like bite marks, ballistics, matching tire marks, blood spatter, shoe prints, even fingerprints. I mean, like marks, blood spatter, shoe prints, even fingerprints. I mean, like, all these disciplines, like, you know, they don't actually meet the requirements of Dobber. And so, I think that's a really powerful tool, not just in criminal cases, but in like all cases.

So say, like, we're not just gonna be deferential to authorities. We're not just gonna be deferential to the received wisdom of courts. We're gonna just going to be deferential to the received wisdom of courts. We're going to say, like, well, using the scientific method, like, how do you prove that? So it's like a tool for someone who is somewhat powerless. It's giving someone a little bit of a chance to kind of scrutinize the reason that they are being, like, said to be guilty.

It gives them like one more. Yeah, I think like if you're deciding like really important things, if you're deciding, you know, like if you're trying to prove somebody guilty of murder, if you're if someone someone has died of asphyxiation and not a drug overdose, if vaccines cause neurologic injury, if chemicals are leaching out into the water. I mean, the list goes on and on and on. But if you're deciding any one of those things, you really, I would really hope that like, you know, we use the best available science.

Like this isn't a theocracy, we need to like, we need to use the tools that scientists have developed to understand the world and like, apply those in the context of the law. You know, like, the law is demanding answers and like, science doesn't always have the answers, but at least we can use the methods of science to like, guide people to like, get a little bit closer to the science. Do you think, Dober, does that though?

Do you think Dober helps us get to the best available science? Are you Peter who's looked at it so closely? Like, do you feel like it is a good kind of metric or gateway set of checks? Like, well, do you think it is the good standard? No, yeah, I mean, I know, honestly, I think that Dobbert can and should be used as like a force for social good But but that said I think that that really does have some some flaws And the first thing you see if you look at the data on the criminal side you basically see that like a lot of judges come from the prosecution side They're they're more likely to admit evidence that is offered by the prosecution, so sometimes bad

forensic science gets admitted. And as some people go to jail, that's bad. And yeah, on the civil side, I think you see that the companies have sort of endless resources, deep pockets, and they're able to fund research that can sort of be used to disprove this litigation. So these big money and interest can essentially undermine the credibility of the plaintiff's expert. So I think it's an imperfect standard, but I think that like there is no perfect standard. I think that's the real problem is that if we are going to have judges who in juries who are non-scientists deciding these things that, you know, I think it's just a problem that's inherent in your constitutional right to a trial by jury. I don't think we're going to have a perfect standard.

Right. But I guess there is the question of, is this even that much better if the judge still holds the power to toss science out? Right. Certainly isn't perfect. Yeah, this is definitely something that Jason talked about. For us, a big part of it also is chance, right?

Like if we got any different judge, we might have had a different, like we might have had a better chance at least getting in the door. That's really my big thing. Like I could have dealt with going to trial and losing. That would have been not ideal but doable but not even getting to go to trial. And again, I understand the basic idea, right? Like you don't want to allow

any crank and their perpetual motion machine into court. I get it. Absolutely. And cranks can look pretty respectable. There's that too. You've got that problem. So you've got lots of different things you've got to guard against. I get it. So, and I mean, it's possible. Like I say, I could be wrong. I could be the crank unknowingly. I don't think so, but like, it's not that I know that Bindecting caused my birth effects. It is that I think it's probable. And I fully admit I could be wrong. It is that I think it's probable and I fully admit I could be wrong. And on the other hand, I didn't even get a chance in court to show it one way or the other. That's a problem, right? When it all comes down to one person deciding whether you could even go to court or not, or whether your science is bright and true or not.

Yeah. So. true or not? Yeah, so. Well, do you kind of think that Bendectin didn't cause the birth defects? Yeah, I don't actually know. I think, you know, what I'm saying is we know what the epidemiological evidence showed. And I don't think that that evidence necessarily disproved that the drug caused Jason's injuries, but I also think, yeah, I think there's a lot of uncertainty there. Well, I guess, you know, that's why we go to court. And everybody presents their evidence, and then we decide. A quick note. In the course of this reporting, Barry Nase, the lead attorney for the Dobberts died in 2021.

The only way we were actually able to hear from him is because Peter had spent the last three years reporting this story. And for that, we really want to thank Peter, immensely, for bringing it to us. This story was produced by Matt Kieltie with production and reporting assistance from Sarkarri. Special thanks to Leah Lippman, Rachel Rebusche, Jennifer Manouken, David Savitz. And especially Brooke Burrell and Tom Zeller Jr.

editors at Undark Magazine, who originally published a version of this story in 2020. It's a terrific magazine. Check it out. So good. Check it. I'm Lutthiff Nasser. It's Terrific Magazine. Check it out. So good. Check it. I'm Lutti Fnazir. I'm Lutti Fnazir. I'm Lutti Fnazir. Thanks for listening. Radio Lab was created by Chad Abba Roud and is edited by Sorn Wheeler. Lutti Fnazir and Lutti Fnazir are a co-hosts. Susie Lechtemberg is our executive producer. Dylan Keith is our

director of sound design. Our staff includes Simon Adler, Jeremy Bloom, Becca Brustler, Rachel Kusik, W. Harry Fortuna, David Gable, Maria Paz Gutierrez, Sindu Nenisambundam, Mack Kilti, Annie McEwan, Alex Nason, Sarah Carey, Anna Rusk with Paz, Sarah Sandback, Aryan Wack, Pat Walters, and Molly Webster, with help from Bone Wong. Our fact-checkers are Diane Kelly, Emily Krieger, and Natalie Middleton. Hi, I'm Finn from the Midgie Minnesota. Leadership and support for Radio Lab Science Programming is provided by the Gordon and Betty Moore Foundation.

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