Edward K. Cheng

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Minnesota Law Review

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torts; scientific evidence; Daubert; causation; tort reform


Evidence | Law | Science and Technology Law | Torts


A number of high-profile toxic tort cases, such as silicone breast implants, have followed a familiar and disturbing path: Early studies suggest a link between a suspected substance and a particular illness. Based on these initial studies, lawsuits are brought and juries award large judgments to various plaintiffs. Then later, more comprehensive studies find no evidence of a causal link. How should the legal system cope with this problem in which new scientific evidence calls into question previous findings of liability? These erroneous judgments seriously harm social welfare and legitimacy. Beneficial products are needlessly discontinued or are made more expensive, and public confidence is undermined by decisions entirely at odds with science.

This Article observes that in a subset of cases, the legal system's traditional emphasis on speedy dispute resolution and finality is brought into direct conflict with science's culture of incremental study and constant reevaluation. The resulting timing mismatch is at the root of the changing scientific evidence problem. To alleviate it, the Article suggests the use of two alternative procedural devices. Courts could stay proceedings for a fixed period of time when additional confirmatory studies were anticipated. Alternatively, courts could address changing scientific evidence after final judgment through an expansion of post-judgment relief. Either of these options would enable courts to be more accommodating to the scientific process, while simultaneously spurring scientists to better serve legal inquiry.



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