State-of-The-Art Defense and Judicial Assessment of Scientific Evidence

Abstract

In deciding whether the state-of-the-art defense applies to a products liability claim, courts must preliminarily assess whether the expert witnesses chosen by each party or appointed by the court itself have presented good scientific evidence or not.

Are there general or specific (meta)scientific standards to reasonably ground this assessment? In other terms, what does good science mean in the field of products liability and torts?

The inherited wisdom was enshrined in Frye v. United States, 293 F. 1013.C.Cir. 1923, a case decided in 1923, which resorted to the so-called general acceptance rule. Fifteen years ago, a fruitful discussion was launched by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993) and it still goes on. The reasons and answers offered along this discussion are rich and worth reading: publications in peer reviewed periodicals, tough testing of empirical hypotheses, admitting risky or even daring hypotheses but requiring them to be empirically tested, and rejecting non falsifiable theses seem to be, at least so far, workable but not binding guidelines for this task. Nevertheless, the demarcation boundaries between good science and junk science are still muddled because what they actually entail is an unended quest, as Karl Popper famously wrote.

Keywords: Development Risks, State of the Art Defense, Product Liability, State of Scientific and Technical