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Acknowledgments
- Carl F. Cranor, University of California, Riverside
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5 - Scientific Reasoning and Some Applications
- Carl F. Cranor, University of California, Riverside
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Summary
Beyond basic scientific studies there is a concern that courts may not fully understand critical features of scientific reasoning. This is the means by which scientists make inferences from data to conclusions about the toxic properties of substances. These inferences are central to the scientific enterprise, but they have some complexity that may resist easy understanding. In fact, some judges have had a tendency to adopt comparatively simple indicators of reliable scientific reasoning, indicia that must be jettisoned or modified in favor of a more subtle understanding of scientific inferences.
PRINCIPLES OF REASONING UNDERLYING CAUSAL INFERENCE
The reasoning that supports causal inferences is based on nondeductive inferences to the best explanation (introduced in Chapter 3). Such reasoning is both central to routine causal inferences and underlies the reasoning scientists utilized to infer the causal significance of case reports discussed in Chapter 4.
Inferences to the best explanation have a substantial historical pedigree and are widely utilized: by consensus scientific bodies, including the IOM and WHO, by methodologists, by physicians in differentially diagnosing diseases from symptoms, by physicians diagnosing the causes of disease (some call this “diagnostic etiology” – the search for causes of disease), and by fire, airplane, and shuttle accident investigators. It is widely endorsed across many fields and accounts for the particular characteristics of causal inferences to which methodologists and others call attention in good case studies.
Recall that inferences to conclusions are of two kinds: deductive and nondeductive. The defining feature of valid deductive inferences, typical of mathematics and formal logic, is that the conclusion is “guaranteed logically or semantically by the premises: if the premises are true and the argument is valid, the conclusion must be true,” exhibiting a “logically tight” relationship between premises and conclusions.
In contrast, nondeductive inferences to the best explanation are simply those whose conclusions are supported but not guaranteed by their premises. Even if the premises are true, the nondeductive link between premises and conclusions can have varying degrees of strength, unlike a deductive argument. In these arguments if the premises are true, they may offer much to little (or no) support for the conclusion in question. Moreover, the given premises will provide support for different possible conclusions (or as some of the literature puts it, support different explanations).
6 - Excellent Evidence Makes Bad Law: Pragmatic Barriers to the Discovery of Harm and Fair Admissibility Decisions
- Carl F. Cranor, University of California, Riverside
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Summary
The theoretical tools available to assist scientists in discovering the adverse effects of toxicants in humans described in Chapters 4 and 5 are one thing. Their actual use with what is known or not known about substances, practical difficulties in using them, the time it takes to conduct studies, the rareness of background diseases at issue, and the adventitious exposure circumstances of torts are quite another. These and other limitations need to be appreciated in order to better understand how the practicalities of using science in the tort law affect the institution.
The courts in the Daubert and some subsequent litigation might not have had a realistic understanding of the kinds and quality of evidence that could be available in toxic tort litigation. The Bendectin litigation had an unusual amount of high quality, readily available direct human statistical evidence about the product. Indeed, it may be one of the “best studied substances” ever.
Such excellent evidence in a leading case, however, can result in bad law. How could this be, since usually, “bad evidence can make bad law”? Thus, in cases subsequent to Daubert did courts mistakenly believe that nearly ideal evidence is always available or easily obtainable? If they did, they are likely to demand it in other cases. Suppose litigants lack similarly good evidence in other cases. Will courts think that the lawyers who file cases or the scientists who are prepared to testify in it have not done their homework? Are they trying to fool the courts? Are they basing their litigation on “junk science”? Are they trying to keep costs down? Are they not acknowledging unfavorable evidence? I don't know. However, it becomes easy for courts to mistakenly generalize from a few cases with excellent evidence to most others where the evidence is far from the best and is not easily produced. Such an assumption can lead to errors.
This chapter tries to present a more realistic, and, I hope, more accurate picture of some barriers to the discovery of harm that can easily affect the kind and amount of evidence that litigants might have available and that affect the fairness of courts’ admissibility decisions. There are substantial impediments to the production of the best scientific evidence needed for tort law litigation.
7 - Science and Law in Conflict
- Carl F. Cranor, University of California, Riverside
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Summary
The Supreme Court's Daubert trilogy gave judges a more difficult task than it might have imagined. Inter alia, while seeking to increase the chances that legal decisions would more closely follow the relevant science after a jury verdict, some justices were aware that judges might struggle with the Daubert guidance and perhaps with the science. Given the complexity, subtlety, and sometimes inscrutability of some scientific evidence, understandably, but regrettably this has indeed occurred with regard to scientific studies and reasoning. These difficulties increase the more complex and subtle the evidence becomes.
Generic tensions between the law and science also hamper easy pursuit of this goal. Moreover, judges disagree about how scientific evidence should be reviewed, given its complexity. Finally, the chances that admissibility decisions will result in mistaken judgments are even greater because of some of the pragmatic problems reviewed in the previous chapter. Even when judges review quite good evidence, there are numerous opportunities for errors. When there are myriad pragmatic barriers to obtaining good evidence about the toxicity of substances and less than optimal evidence is available, the potential for stresses and strains increases. Failures to attend successfully to these issues pose threats to litigants to the bar and to the legitimacy of the law. The current chapter focuses on some of these issues; the next chapter considers a major appellate case – Milward v. Acuity Products – that suggests major correctives to them.
Notable tensions between science and the law can affect how well they can function together. Different standards of proof central to each, different time frames within which each operates, different concerns about the distribution of mistakes, and different approaches to uncertainty, simplicity, and complexity create contexts in which judges can err. Such tensions on top of the pragmatic barriers already considered increase courts’ burdens.
Moreover, when we assess courts’ reasons for their admissibility decisions in light of how scientists typically address similar evidence, we see judges struggling with their reviews of testimony and its support. Some courts have had difficulty in reviewing and understanding scientific studies and reasoning, or they have adopted quite different standards for assessing scientific evidence than scientists themselves would. In either case, this can undermine the aim of winnowing scientific testimony to be more consistent with existing the science pertinent to the cases and affect the just resolution of legal issues.
Preface
- Carl F. Cranor, University of California, Riverside
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Summary
The tort or personal injury law is the main part of the legal system that provides redress for injuries suffered. It is tempting to say that it has changed before our eyes, except we cannot see it. These modifications are occurring because three Supreme Court decisions – Daubert v. Merrell Dow Pharmaceutical, Inc., General Electric v. Joiner, and Kumho Tire v. Carmichael – increased judicial screening of expert (largely scientific) testimony in litigation before experts could testify before a jury. However, it is difficult for all but the best informed to comprehend them. Some who understand them welcome them, some do not, and some will have more mixed assessments of them. However, most citizens cannot even have an opinion on the relevant issues because they are unaware of them and because the topics themselves are not easily accessible. The barriers to understanding the resulting legal changes are the result of subtleties most of us never think about – issues about scientific evidence and reasoning, and legal procedures that are complex and inaccessible to most of us.
The actual and potential transformations of this part of our legal system are too important to remain hidden and too important for an informed citizenry to be left in the dark about them. Citizens risk having their access to the tort law and the possibility of restitution for injuries within it reduced and they will not know it. Judges and lawyers are at risk of being manipulated by slogans about “sound science,” not realizing there are more scientifically accurate and legitimate ways to think about science, law, and the interaction between the two. There is even a risk to the legitimacy of the law itself, if mistaken scientific arguments are used to frustrate its aims. The issues posed by the potential changes in our legal system are not easy, however. In order to “see” and to better appreciate them, we must understand more about some of the procedures that occur before trial, not something most of us know. We also must understand some basics of the sciences that assist in revealing human harm from exposure to toxic substances. In addition, there are subtleties about these sciences and different evidentiary patterns of harm that must be appreciated. Too simplistic a view of the subjects will inadvertently skew the science, the law, and our protections under it.
9 - Enhancing the Possibility of Justice Under Daubert
- Carl F. Cranor, University of California, Riverside
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Summary
If some courts have been using unduly constrained, idealized, or overly simple heuristics for reviewing scientific testimony on causation, how might they conduct this task differently? How can they better address complex patterns of evidence? Can their admissibility decisions better serve the aims of both law and science?
One route to improve reviews of expert testimony would be for judges to use court-appointed experts; I briefly consider this idea. A likely better approach (because of the costs) is for courts to follow the lead of the First Circuit Court's Milward v. Acuity Products that in turn is anchored by the Supreme Court's Kumho Tire and Daubert v. Merrell-Dow Pharmaceutical decisions. To give scientific content to this second idea, one should understand more nuanced patterns of evidence from consensus scientific committees. These illustrate varieties of studies and complex patterns of evidence that scientists have utilized. Courts should be able to recognize and assess a wider range of evidentiary patterns than some have previously. I consider a few legal cases other than Milward in which judges have recognized the subtlety of issues they faced or in which they addressed well the shortcomings of studies or reasoning with which they were faced. Toward the end of the chapter, I revisit a few decisions discussed in Chapter 1 to illustrate in view of subsequent chapters more specifically some of the problems they raise.
Courts can choose how they implement Daubert and its progeny. They could unduly restrict scientific testimony, or fail to recognize more subtle scientific mistakes that can affect litigants. In contrast, they could better utilize scientific evidence and more closely follow the science than they have in the past, by reviewing scientific testimony with Milward v. Acuity Specialty Products as a model to assess whether testimony falls within a “zone where experts might reasonably differ” (following Kumho Tire). Were they to do this, it is reasonable to expect several consequences to result.
Expert testimony would be better founded in science than at present and comport better with how scientists themselves assess evidence. This would likely increase the acceptability of admissibility decisions within the scientific community and reassure respectable scientists who testify that their testimony will not be judicially condemned as inadequate.
10 - What has Daubert Wrought?
- Carl F. Cranor, University of California, Riverside
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Summary
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.
8 - Milward v. Acuity Specialty Products: Toward Clarifying Legal and Scientific Issues
- Carl F. Cranor, University of California, Riverside
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Summary
Recall from Chapter I that Mr. Brian Milward was diagnosed with Acute Promylelocytic Leukemia (APL), a very rare type of Acute Myelogenous Leukemia (AML) that only occurs in about one in 1,000,000 people. Mr. Milward and his wife, Linda, brought tort law claims in negligence against twenty-two defendant companies who manufactured products containing benzene that Mr. Milward had used as a refrigerator repairman. He had worked in this capacity from 1973 to 2007. Benzene has been known to cause AML since the 1960s. The companies neither listed benzene as an ingredient, nor warned consumers that the products contained a known cancer-causing substance. In his work, Mr. Milward breathed vapors containing benzene for many hours each day and sometimes would get it on his skin, after which it entered his blood stream.
FINDING A LAWYER
The Milwards contacted Steven Baughman Jensen of Allen Stewart P.C., to present their case. Since graduating from law school Steve had had concerns about environmental degradation and harm to citizens caused by toxicants in the environment. Like many plaintiffs’ lawyers he was passionate about protecting the public from chemical risks, or failing that, finding compensation for injuries they suffered that could be traceable to chemical exposures. Moreover, following the Daubert and Joiner decisions, he had become a substantial critic of how lower courts were implementing them and how the defense bar was attacking the science underlying expert testimony.
After carefully considering the Milwards’ case, Steve concluded that there was a reasonable scientific and legal basis for a court to compensate the Milwards. The trial had been bifurcated into general causation claims and specific causation claims to be considered in that order so his first order of business was to address general causation. However, he knew that he had to anticipate and address potential weaknesses to better ensure the case would be successful.
CHOOSING EXPERTS
In designing the litigation plan he sought out Martyn Smith, one of the best benzene experts in the country, Professor of Toxicology in the School of Public Health at the University of California, Berkeley. Martyn is extremely well known and highly respected for his work in toxicology and his work on benzene in particular.
Frontmatter
- Carl F. Cranor, University of California, Riverside
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4 - Evidence of Toxicity
- Carl F. Cranor, University of California, Riverside
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Summary
The law provides the institutional rules within which science will be utilized in toxic tort cases. Science in turn provides important factual content needed to assist in the resolution of legal disputes. However, scientific evidence is arcane, complex, and subtle. In order to better understand the law-science interaction, then, one should understand some of basic toxicity studies that are needed in the law. This chapter reviews these subjects. Chapter 5 discusses how scientists reason about studies to draw conclusions about human harm.
Early in this chapter, I provide some basic information about some of the main kinds of studies on which experts rely to make inferences about the potential of toxicants to cause adverse effects in persons. This summary seeks to acquaint readers, who might not be fully familiar with the science, with some of the types of studies and their features. I also review other kinds of evidence with which courts have had greater difficulties and that are less well understood. However, they are or potentially can be quite important in tort cases.
However, a deeper and broader understanding of the science and its context for the tort law is needed as well. There are implicit, explicit, and subtle barriers to providing the scientific evidence needed in toxic tort suits that may not be understood by courts or the wider public. Consequently, Chapter 6 explores some subtler but important pragmatic barriers to providing the needed science.
FEATURES OF BIOCHEMICAL RISKS THAT HINDER IDENTIFICATION AND ASSESSMENT OF HARMS
Chemical substances have some special features that in general make the identification and assessment of their causal properties difficult. In the tort law, these features pose particular problems, stressing and straining the institution in various ways. Although many substances could serve as examples, consider one: polychlorinated biphenyls (PCBs) and some of the risks they pose. PCBs were the main substances at issue in Joiner, but that is not the reason for presenting them here. This is a class of substances that is clearly toxic, but whose properties have not been quickly or easily understood.
PCBs are thermally stable, are resistant to oxidation, acids, bases, and a number of other chemical substances, have excellent dielectric and insulation properties, and make good commercial products. Until 1972 they were used as transformer cooling liquids, hydraulic fluids, lubricants, plasticizers, surface coatings, sealants, pesticide extenders, and copy paper.
3 - Institutional Concerns about the Supreme Court's Trilogy
- Carl F. Cranor, University of California, Riverside
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Summary
In Daubert, the Supreme Court correctly saw that lower courts had reviewed the admissibility of expert testimony and its foundation on the basis of a principle – the Frye “general acceptance” test – that had been superseded by the more liberal admissibility guidance of the Congressionally enacted Federal Rules of Evidence. At the same time, when it sought to articulate guidance for this activity, it heightened the gatekeeping duties of judges. In doing this, it entered intellectual territory that is not readily accessible to judges with their typical training. And, the Daubert case itself generates internal tensions. The trilogy of cases also creates tensions between them and poses problems for other courts interpreting them.
In what follows, I sketch some of these issues and consider some other problems the court generated by entering the intellectual terrain of epistemology, philosophy of science, and the nature of causal inferences. None of these is easy, but the Court explicitly or implicitly took them up anyway. The easy part of the Daubert opinion was the rejection of the Frye test. A much more difficult matter for the courts and for the rest of us is understanding the import of the decisions, key interpretations by lower courts as they wrestle with the Courts’ decisions and applications to science, and how they should guide the admissibility of expert testimony and its scientific foundation.
A tiny bit of history suggests that the Supreme Court's Daubert decision seems odd because it did not mention and seemingly disregarded its own precedent from a decade earlier in Barefoot v. Estelle. This decision had held that cross-examination and jury assessment of witnesses’ credibility and reliability were sufficient to protect a criminal defendant in a death penalty case against dubious and unreliable expert testimony that was widely criticized by the expert's own profession. By the time Daubert was decided in 1993, instead of merely rejecting Frye, as Chief Justice Rehnquist argued in dissent, and going beyond the plain language of the Federal Rules of Evidence, it created a “reliability” screen for expert testimony. This contrasted with Barefoot v. Estelle. And, of course, the Daubert review is more elaborate than a Frye review, but how extensive it is depends upon how the trilogy of cases is understood.
Bibliography
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1 - The Veil of Science over Tort Law Policy
- Carl F. Cranor, University of California, Riverside
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INTRODUCTION
The tort or personal injury law is the main area of the law that provides redress for injuries suffered, whether caused by car accidents, defective products or toxic molecules. However, a significant, unseen revolution in the tort law has been in progress since 1993. It is hidden from the public, except for those litigating tort law issues and well-informed researchers. The legal changes are difficult to discern because they are veiled behind a fabric of scientific complexity and detail, as well as arcane legal procedures that are not well known and are difficult to penetrate. Yet this veil should be lifted, the scientific and legal issues understood and put into perspective in order to appreciate the policy modifications in our legal system that can substantially affect the safety of ordinary citizens, both plaintiff and defense bars, corporate behavior, and fundamental legal relationships between citizens. This revolution involves science, law, and the possibility of justice for those who have been injured by the actions or products of others. What is the relationship among science, law, and the possibility of justice that it poses a problem?
Typically, we might think that science has little or nothing to do with justice. It does provide one of the most reliable means for investigating empirical claims and producing comparatively objective evidence about them. Scientific research has resulted in considerable accumulation of knowledge about the world, in a substantial track record of predicting observable events, and in “huge advances in human understanding [of the natural world and forces in it]…over the ages.” This research substantially informs our understanding of human and animal biology, our environment and the larger world around us. Knowledge and understanding are the dominant virtues of scientific inquiry. Some scientific fields – epidemiology, toxicology, and clinical medicine, among others – are centrally needed to assist courts about whether and to what extent exposure to a product might have contributed to someone's injuries and these are especially pertinent to our inquiry.
Justice, in contrast, provides norms for guiding citizens’ behavior and for judging our institutions, our laws, and our relations to one another. It assists the design of laws or institutions when it is necessary to create new ones. It is the “first virtue of social institutions” and the preeminent virtue of the law.
Dedication
- Carl F. Cranor, University of California, Riverside
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Contents
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Index
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2 - Legal Background
- Carl F. Cranor, University of California, Riverside
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INTRODUCTION
The law, a quite complex institution, must be understood in order to identify the science-law issues, to see why they are so critical to the functioning of the legal system, and to appreciate why mistaken decisions about the admission of expert testimony can be of wider social concern. Moreover, for both historical and ongoing disputes, it is important to understand why some of the legal changes have occurred.
One should also understand some of the institutional background of the tort law, including some specific steps in civil procedure, in order to identify the stage at which courts consider the admissibility of evidence. This reveals why admissibility decisions during court proceedings can be so crucial to the litigants (mainly the plaintiffs), to the law, and to society more generally. A sketch of the context in which the U.S. Supreme Court decided to take the legal admissibility of scientific evidence provides important background to this litigation. Finally, the chapter concludes with three recent U.S. Supreme Court cases and how these have modified the admissibility of expert testimony and its scientific basis.
THE TORT LAW
The legal actions that are of concern arise in the tort or personal injury law. This is that
Body of law which is directed toward the compensation of individuals, rather than the public, for losses which they have suffered within the scope of their legally recognized interests generally, rather than one interest only [such as contracts], where the law considers that compensation is required.
The tort law is often contrasted with criminal law, which is typically “concerned with the protection of interests common to the public at large, as they are represented by the entity which we call the state; often it accomplishes its ends by exacting a penalty from the wrongdoer.” It is also differs from contract law, which imposes liability “for the protection of a single, limited interest, that of having the promises of others performed,” and with quasi-contractual liability that has been “created for the prevention of unjust enrichment of one person at the expense of another, and the restitution of benefits which in good conscience belong to the plaintiff.” The tort law is generically concerned with redressing injuries a person has suffered that were intentionally or negligently inflicted by others, or inflicted “without fault” for which a person can recover under strict liability laws, depending upon the area of torts.
Toxic Torts
- Science, Law, and the Possibility of Justice
- 2nd edition
- Carl F. Cranor
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US tort law, cloaked behind increased judicial review of science, is changing before our eyes yet we cannot see it. While Supreme Court decisions have altered how courts review scientific testimony, the complexity of both science and legal procedures mask the resulting social consequences. Yet these consequences are too important to remain hidden. Mistaken court reviews of scientific evidence can decrease citizen access to the law, decrease incentives for firms to test their products, lower deterrence for harmful products, and decrease the possibility of justice for citizens injured by toxic substances. Even if courts review evidence well, increases in litigation costs and attorney screening of clients can impede access to the law. Newly revised and expanded, Toxic Torts, 2nd edition introduces these issues, reveals the relationships that can deny citizens just restitution for harms suffered, and shows how justice can be improved in toxic tort cases.
4 - Studies of Toxicity and Scientific Reasoning
- Carl F. Cranor, University of California, Riverside
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Summary
The law provides the institutional rules within which science will be utilized. Science often provides important content needed to assist in the resolution of legal disputes. However, scientific evidence is arcane, complex, and subtle. In order to better understand the law-science interaction, then, one should understand some of basic toxicity studies that are needed in the law as well as scientific reasoning from them to conclusions about human harm. This chapter reviews these subjects.
Early in this chapter, I provide some basic information about some of the main kinds of studies on which experts rely to make inferences about the potential of toxicants to cause adverse effects in persons. This summary seeks to acquaint readers, who might not be fully familiar with the science, with some of the types of studies and their features. I also review more extensively other kinds of evidence with which courts have had greater difficulties and that are less well understood. However, they are or potentially can be quite important in tort cases.
Later in this chapter I discuss less visible and less well-understood issues: scientific (nondeductive) inferences and some of their implications for scientific testimony. Surprisingly, a number of courts in their written opinions appear not to have understood different scientific studies, some of the reasonable inferences that can be made from them, and some of their limitations.
However, a deeper and broader understanding of the science and its context for the tort law is needed as well.
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