Pretrial Mediation of Complex Scientific Cases: A Proposal to Reduce Jury and Judicial Confusion
![handle is hein.journals/chknt75 and id is 997 raw text is: PRETRIAL MEDIATION OF COMPLEX SCIENTIFIC CASES:
A PROPOSAL TO REDUCE JURY AND JUDICIAL
CONFUSION
SusAN E. COWELL*
INTRODUCTION
Would you sign a petition to ban water? A Cambridge
economist found that seventy-six percent of surveyed respondents
condemned dihydrogen monoxide (water).1 It is questionable that
such people could serve as capable fact finders (jurors) in complex
scientific cases (such as complicated environmental torts). More than
juror ignorance is at issue: individuals serving on the bench also lack
science backgrounds. In fact, only four sitting members of the federal
judiciary reported a specific science education, resulting in their
inability to mitigate the lack of juror knowledge.2
Consider the practical impacts of a nonscientific justice system
adjudicating complex scientific cases. Federal judges decide not only
the admissibility of scientific evidence, but also the merits, or validity,
of an expert's opinion.3 In addition, the judge's lack of a scientific
* J.D., Chicago-Kent College of Law, 2000; M.S., Water Chemistry, University of
Wisconsin-Madison, 1995; M.S., Water Resources Management, University of Wisconsin-
Madison, 1992; B.S., Geology, University of Wisconsin-Eau Claire, 1988. I thank Professor
Anita Bernstein for her invaluable guidance in preparing this Note and for her fantastic
dedication to teaching. Jamie McDole also provided valuable editing assistance.
1. See Matt Ridley, Acid Test: Dihydrogen Monoxide: Now There's a Real Killer, DAILY
TELEGRAPH LONDON, Sept. 15, 1997, at 20. One hundred twenty-three people were asked
whether the chemical dihydrogen monoxide should be strictly regulated, or even banned on the
basis of the following information:
The chemical industry routinely uses a chemical dihydrogen monoxide in its
processes. It is used in significant ways and often leads to spillages and other leaks and
it regularly finds its way into rivers and into our food supply. It is a major component
of acid rain. It contributes to erosion. It decreases the effectiveness of automobile
brakes. In its vapour state it is a major greenhouse gas. It can cause excessive
sweating and vomiting. Accidental inhalation can kill you. It has been found in
tumors of terminal cancer patients.
Id.
2. See Search of Westlaw, Almanac of the Federal Judiciary (June 13, 2000). There were
three sitting federal judges with engineering degrees, and one judge with a physics degree. The
educational search was performed for engineering, physics, chemistry, biology, and geology.
3. See, e.g., Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (extending the
Daubert factors to the testimony of nonscientists such as engineers because [Daubert] applies](ViewImageLocal?handle=hein.journals/chknt75&div=50&collection=journals&method=preview&ext=.png&size=3)
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Pretrial Mediation of Complex Scientific Cases: A Proposal to Reduce Jury and Judicial Confusion
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