In order to keep pace with the science courts need to become more sophisticated about the scientific issues in toxic torts along the lines suggested in Chapter 9. This will better ensure that verdicts comport with the science needed in a case, that there are fair admissibility reviews, and that there is the possibility of justice for injured parties. However, even a sensitive review of scientific evidence within existing federal law may fall short of some goals in bringing the science of our technological society into the law. It may not be sufficient to ensure matters have been “set right” as corrective justice requires for citizens wrongfully harmed by others. Further analysis suggests that the Daubert trilogy has had some counterproductive, although perhaps unintended, consequences. Three structural issues raise concerns: (1) Admissibility changes wrought by Daubert, whether conducted poorly or well, almost certainly decrease citizens’ access to the legal system and increase the process barriers they face. Together these put justice for injured parties at risk and reduce tort law deterrence of harmful conduct or products. (2) In some respects, Daubert as implemented via the Kumho Tire heuristic increases the acceptability of legal decisions that utilize scientific evidence. In others, it threatens their acceptability, creates counterproductive tendencies concerning the science, or has other untoward consequences. (3) Beyond these two more specific problems, Daubert admissibility screening, ignorance about the universe of substances, too little product testing and monitoring, and the causal requirement of torts together undermine protection of the public health.

The first issue has to do with access and process biases in torts. The second with the difference between the acceptability of decisions based largely or solely on evidence versus legal decisions based on a full jury verdict. And the third, and broader, issue is the result of a legal-social system that pays too little attention to the safety of products, and too much attention to removing uncertainties before regulating unsafe products or permitting plaintiffs’ scientists to testify in court.

How might the law be altered to better address these issues? One significant advance would be to have a major overhaul of our legal structure on the regulatory side to obtain better scientific information about products and better prevent injuries from toxicants. Although I have argued for this alternative elsewhere, at present there is likely little political will to bring it about.