and psychological experts and therefore the jury could not hear the evidence.
Last summer, the Supreme Court came down squarely on the side of the more flexible rule 702. The scientific and legal communities had been greatly concerned, Racine notes, that that decision would allow all kinds of junk science into the courtroom. It's feared that, lacking the general-acceptance test and given the nebulous criteria of rule 702, judges would admit any and all kinds of scientific evidence to ensure their decisions wouldn't get reversed on appeal.
The court addressed that concern in its decision, however. According to Racine, the court said, in effect: "We don't mean that anybody who shows up with any kind of scientific evidence has to be heard, rather we want the judge to act as the gatekeeper, deciding what evidence will be let in and what will be left out. The judge is supposed to look at a number of factors and, based on these factors, decide whether the evidence can be heard."
First, the expert witness must have scientific knowledge—not just a gut feeling, but knowledge based on the scientific method. Second, the court is supposed to look at whether admitting this scientific evidence will actually help the jurors.
Third, the judge can consider whether the evidence being offered has been published, that is, if it has been subject to peer review. 'This is not necessarily a requirement, but a factor that should be looked at," Racine says. The judge can also consider whether the theory on which the scientific evidence is based has been generally accepted, which lets the Frye rule back in but as only one of the factors to be considered. The judge also can take into account the reliability of the evidence.
Racine says he found some recent decisions in which courts applied the more liberalized test of Daubert yet decided that certain scientific evidence was inadmissible. One case involved a man with known health problems who took ibuprofen to alleviate the pain of a broken toe and in a matter of weeks was diagnosed with an eventually fatal kidney disease. Another involved a pregnant woman who used topical Retin-A for an acne condition and whose child was born with severe birth defects.
The judges considered the scientific evidence offered by the plaintiffs' expert witnesses as to whether there was a causal link between the drugs and the medical conditions. In both cases, they decided that the evidence was based more on un
tested theories and hypotheses and gut reactions than on scientific fact and thus could not be heard by a jury.
These decisions are important, particularly for pharmaceutical companies, Racine points out. The type of scientific evidence considered inadmissible is just the kind of evidence such firms don't want a jury to hear in the first place, he says, because when faced with a sympathetic plaintiff who has suffered grievous harm, juries will more often than not decide for the plaintiff.
Janice Long
Senate politics endanger Clinton technology plan The cool, polite world of technology policy, where raw feeling is an abstract notion, had seldom seen such a spectacle: Two courtly, usually cordial Senators exchanging verbal fire on the Senate floor. The combatants were Ernest F. (Fritz) Hollings (D.-S.G), chairman of the Com
merce, Science & Transportation Committee, and its ranking minority member John C. Danforth (R.-Mo.). The smoke has now cleared but the upshot is that the future of some of the Administration's key technology programs could be facing real danger.
The debate was over a bill, S. 4, the $2.8 billion National Competitiveness Act. The House passed a similar measure (H.R. 820) last May. But in the Senate, Republicans, led by Danforth, managed to delay it for eight days before winning a compromise on March 17 that reduced its dollar figure to $1.9 billion for the fiscal-years 1995 and 1996. During debate, they offered delaying amendments ranging from pesticide regulation to aviation insurance reform that bore only the slightest relevance to the bill itself. And they defeated every effort to close debate under the cloture rule.
Until the debate, Danforth had supported the bill pretty much in its entirety and, in fact, had sponsored technology programs of much the same character— such as an aerospace research initiative.
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When debate began, however, Danforth aimed to wipe out S. 4 by charging excess, unwarranted government invasion of the marketplace. The result was an enraged Hollings charging betrayal and hypocrisy on Danforth's part, and zingers hurled back at Hollings by an affronted Danforth. Little of the rancor was reflected in the official Congressional Record proceedings.
S. 4 is one of the cornerstones of the Clinton Administration's technology policy of establishing partnerships between government and business. Some of those programs are the clean-car initiative involving the Big Three U.S. automakers and several government labs, hundreds of cooperative research and development agreements between federal labs and companies, the billion-dollar technology conversion program run by the Defense Department, and the enormous expansion of technology support programs at the National Institute of Standards & Technology (NIST).
Much of that agenda was honed by the country's high-technology industries, their various trade associations, and assorted think tanks and professional societies. S. 4 authorizes expansion of the two technology assistance programs at NIST—high-tech research and manufacturing—and boosts assistance for the high-performance computing and communication program at the National Science Foundation. This NSF program is central to the information superhighway initiative so dear to the heart of the Clinton Administration. The bill also would have established a government-guaranteed investment bank. That provision, though strafed severely during debate, survived.
For apparently political and ideological reasons, arguments over "industrial policy/7 and the picking of "winners and losers," heard so often during the Bush and Reagan Administrations, flared up from the past as Hollings and Danforth went at it. The whole episode infuriated Hollings because he believed he had Danforth's support through years of joint sponsorship of identical, but modestly funded, legislation.
Observers don't find it difficult to explain the political dynamics of the issue. First, industrial policy—government dictating to industry what technologies ought to be stressed—has always been a sensitive point with Republicans. They fought any suggestion of it tooth and nail during their 12 years in power during the Reagan and Bush Administra
tions. Second, the Republican Policy Committee, chaired by Sen. Robert Dole (R.-Kan.), is said to be seeking every opportunity to take political advantage of Clinton's vulnerability over the Whitewater affair.
Third, and probably most important, Republicans are especially troubled by the headway the Clinton Administration has been making with high-tech industry. The logic proceeds about this way: Because most of the S. 4 funding would go to the Commerce Department, because that department is government's contact with industry, and because the department is run by Democratic Party operative Ronald H. Brown, Brown could use the booty as a war chest to woo 1996 votes for Clinton in key states. Again and again, Danforth declared that he didn't think the Commerce Department was capable of steering the country's technological future.
There is a fourth element as well: the recently completed but yet-to-be ratified General Agreement on Tariffs & Trade, which in original form contained important restrictions on research and development between government and industry. These restrictions were overturned during December negotiations, further infuriating the Republican side. If the language had not been overturned in those last-minute negotiations, Clinton's programs would have been crippled right there.
What is left now is the Senate-House conference over what is now called H.R. 820. No one is clear about the impact the $900 million cut will have on NIST's programs. It could be that the two-year authorization will be reduced to a single year. In that case, nothing will be affected. Still, says one Congressional staff member, "this will hurt. If it holds, it means no growth for the Technology Administration in the Commerce Department for fiscal 1996. And thaf s exactly what the Republicans wanted. The fact so far is that they won what they wanted: a freeze on [those programs] for 1996."
Some say Danforth backed off and accepted the compromise for fear of losing future support from Hollings on issues important to Danforth. In any case, the Democrats, with a 56-44 majority in the Senate, were nevertheless forced to compromise to get the bill through. The question, then, is whether the Republicans will seek similar reductions in other Administration technology programs.
Wil Lepkowski
CMS
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