Nasty Medicine: Daubert v. Merrell Dow Pharmaceuticals, Inc. Applied to a Hypothetical Medical Malpractice Case

30 By not specifically applying the "general observations" to the Daubert case, not concretely explaining how each one should be applied, and not defining what each one means, the Daubert majority opinion leaves already busy trial judges to figure out for themselves how to interpret and apply this opinion to proffered scientific testimony. Intelligent and proper application of the Daubert rule will impose enormous burdens on the time and energies of trial judges. Daubert appears to leave judges with wide discretion in determining admissibility. Thus, vastly inconsistent outcomes in admissibility rulings will result, depending on each judge's scientific comprehension and, perhaps, on the judge's personal inclinations as well. Most judges lack the scientific training necessary to make truly informed decisions in the area of scientific testimony. 05 As a result, a great deal of evidence previously inadmissible under Frye will be placed before juries. Because most jurors 302. In the United States drugs first are tested on animals and then in humans. Cohn, supra note 108, at 6-7. The recent FIAU fiasco illustrates the fact that a drug apparently safe in animals may be fatally toxic in humans. See supra notes 225-40 and accompanying text. At least one lawsuit has been filed as a result of this tragedy. See Eva M. Rodriguez, Drugmaker Defends Fatal Experiment, LEGAL TIMES, Nov. 29, 1993, at 6, 6. 303. Physicians are increasingly wary of possible malpractice liability. See, e.g., DIMATTEO & FRIEDMAN, supra note 143, at 29 (observing recent increase in malpractice insurance rates and fact that "the entire health care system appears to be alarmed at the extensive patient retaliation against physicians"); JAMES ROSENBLUM, MALPRACTICE SOLUTIONS 13 (1993) (stating that "malpractice hangs like a cloud over our health-care system"). As a result, physicians may tend to proceed cautiously when treating their patients, using only treatments proven safe and effective. 304. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2799 (1993) (Rehnquist, C.J., dissenting) (emphasis added). 305. See supra note 12 and accompanying text. 1556 [Vol. 27:1513 DAUBERT AND MEDICAL MALPRACTICE lack a solid scientific understanding,30 6 they are apt to give dubious testimony far more weight than it deserves-particularly when it is offered by a plaintiff whose plight is likely to evoke sympathy and influence a jury to overlook any doubts about causation. The outcome can be quite devastating: Judgments may be entered wrongfully against nonresponsible parties. The Daubert opinion leaves many questions unanswered. Does the opinion apply exclusively to scientific experts, or does it extend to those testifying to "technical" knowledge as well? What if the two "general observations" of low rate of error and testability are satisfied, and the two of general acceptance and peer review are not? What if all factors but general acceptance are met? Or, what if, at first glance, none of the factors are conclusively met, but the trial judge becomes convinced that by contorting the amorphously defined "general observations," all four categories will be satisfied? A return to the common-law Frye test, along with the use of preapproved scientific committees to determine "general acceptance," would solve the many problems raised by the United States Supreme Court's majority opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc. Katherine M. Atikian* 306. See, e.g., Miceli, supra note 12, at 944 ("In medical malpractice actions the lay jury simply has no basis in education, training, or experience upon which to arrive at a rational and reasoned verdict."). * I would like to thank John D. Abdulian, M.D.; Professor David P. Leonard; H. Reed Metzger, M.D.; John A. Peak, Esq.; Jerrold B. Reilly, Esq.; and Lee E. Vail, Esq.--each of whom patiently read through drafts of this Note and kindly offered insightful comments and suggestions. Thanks are also due to Alison T. Atikian and Raffi G. Najarian, D.D.S., for library assistance. This Note is dedicated to the memory of Deborah L. Haake, Pharm.D., J.D. (Loyola Law School 1988), whose energy and love of science, the law, and life will forever serve as an inspiration. June 1994] 1557 1558 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 27:1513