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Casebook, First Edition, July 1999 Hodges v. Secretary of the Department of Health and Human Services: Distinguishing Legal and Scientific Standards of Evidence Must a plaintiff resorting to scientific proof of causation under a legal standard that it is more probably true than not true that a toxic exposure caused a disease meet a stringent scientific standard such as 95-percent certainty? Judge Newman, dissenting in Hodges v. Secretary of DHSS, 9 F.3d 958 (Fed.Cir. 1993), focused on the distinction between legal probability and scientific certainty. The judge examined the legal consequences of probabilistic analysis and concluded that a causal relationship could be ascertained even from data possessing low confidence levels that may not attain statistical significance. Data bearing lower than 95% confidence might not support a conclusion about causation to a medical certainty, but could satisfy the more-likely-than-not legal standard used in civil litigation. In Ferebee v. Chevron Chemical Co., 736 F.2d 1529 (D.C. Cir. 1984), the court recognized the "irrelevance" of scientific certainty to "more likely than not" causation. In Rubanick v. Witco Chemical Corp., 593 A.2d 733, 747 (N.J. 1991), the New Jersey Supreme Court rejected requiring a level of scientific proof that was unavailable, and stated that:
The Childhood Vaccine Injury Act, the federal statute under which the plaintiffs brought their claim, requires that causation be proved by a preponderance of the evidence. This case was decided against the petitioner by a divided panel of the Federal Circuit. Judge Newman stated unequivocally that the burden of proof required by the Vaccine Injury Act, as well as general tort liability law, is not the 95% confidence level expected by scientists; instead, it is the greater-than-50% confidence level set by Congress. The special master who decided the case had discounted the petitioner's medical evidence—14 epidemiological studies that support general causation, or that the vaccine in question is capable of causing death in a child. Expert opinion on specific, individual causation was inferred from the evidence on general causation together with clinical observations and a strong temporal association; the child's death ensued less than four hours after vaccination. Judge Newman's dissenting opinion relied upon Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993), as a basis to admit additional types of evidence. The U.S. Supreme Court stressed the obligation of the court to review the scientific reasoning and methodology of the epidemiological evidence, to evaluate the reliability of scientific expert opinions, and to weigh the totality of the evidence as applied to a particular case. Yet the proffered epidemiological evidence was not evaluated by the special master although it was the foundation for a plaintiff's expert's opinion. The dissenting opinion in this case is preferred over majority rulings in other recent cases that distinguish between legal and scientific standards of certainty, such as Ferebee and Rubanick. Judge Newman's arguments are more comprehensive and they place toxic risk assessment used in civil cases under a substantially reduced level of scientific certainty as compared to that expected in the scientific community or used in criminal prosecutions. [Contributed by Wayne Roth-Nelson] CLASSIFICATION: CIVIL LITIGATION; TOXIC CHEMICAL INJURY; SUFFICIENCY OF EVIDENCE FOR CAUSATION |
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