Put quotes around the phrase “litigation science” and Google it. Go ahead, we’ll wait. . . . . What did you find? Not good, right. You found a lot. Too much. The first Google page alone shows how controversial this subject is. For instance, you’ll find references to Ninth Circuit Judge Alexi Kozinski’s uncertainly that “what’s going on here is not science at all, but litigation,” in the Daubert case that produced the Supreme Court’s famous Daubert decision. You’ll find agendas for legal conferences—or are they scientific conferences?—on litigation science, with some scientists suggesting that sparring between experts and lawyers might produce better scientific results than scientific peer review. Really. If you Google some more, you’ll find that some of the scientists saying that are themselves experts in litigation. You’ll even find a Wikipedia entry on forensic science with a subheading for “Litigation Science.” That’s disappointing. Are there those in the scientific community who actually believe that science is better developed in a courtroom than a lab? Take it from us, it’s not.

Daubert is intended to curtail litigation science, not encourage it. Judges must be the gatekeepers to the courtroom, closing those gates to unreliable opinions based on methodologies that are neither scientific nor based on appropriate data. Courts must consider peer review, not lawyer review.

This Daubert standard updated the Frye standard, which has been around much longer and is still applied by many state courts. Most believe that Daubert is more exacting. And for the most part it is. But there is an attractive simplicity to the Frye standard. While Daubert sets out a multi-prong test that lowers the microscope on an expert’s data and scientific methodology, Frye simply announces its distaste for litigation science. Frye requires science to be generally accepted in the scientific community. So, while Daubert is more popular with defense lawyers, Frye stillprovides a lot to work with.

The New York Court of Appeals’ recent opinion in Sean R. v. BMW of North America, 2016 WL 527107 (N.Y. Ct. App. Feb. 7, 2016), illustrates this. The plaintiff was a minor who claimed that, years earlier, a defective fuel hose in his parents’ BMW 525i caused him to suffer lasting injuries while in utero. Plaintiff’s experts (a Dr. Frazier and a Dr. Kramer) determined that plaintiff’s mother had been exposed to toxic levels of unleaded gasoline vapor while pregnant with plaintiff—in particular, toluene and benzene contained in the vapor—and that this exposure caused plaintiff’s injuries. The experts pointed to BMW’s recall of the 525i due to defective fuel hoses and the fact that plaintiff’s mother and grandmother smelled a gasoline odor while in the car and at times suffered headaches, nausea and throat irritation.

The experts concluded that the odor and physical reactions established that the mother, and thereby the plaintiff, had been exposed to sufficient levels of the gasoline vapor to cause plaintiff’s injuries. They based this conclusion on controlled studies showing that, “for symptoms such as these to occur immediately, a gasoline vapor concentration of at least 1000 ppm … is required.” One expert applied the Bradford-Hill criteria to establish general causation—i.e., that unleaded gasoline can cause birth defects—and the other expert applied a “weight of the evidence” analysis to determine specific causation—that the mother’s exposure to gasoline vapor was a “substantial causative factor” in plaintiff’s birth defects.

And that’s how it happens. In the blink of an eye, experts in the courtroom established the science and the plaintiff asked the court to accept it.

But the Frye standard wouldn’t allow it. The Court of Appeals seized on the experts’ failure to establish specific causation through science that was generally accepted in the scientific community—that is, science that was developed and appropriately reviewed outside the courtroom. While controlled studies can produce reliable science, experts in the courtroom can’t draw conclusions from them that the scientific community has not. So, while the controlled studies on which plaintiff’s experts relied may have established that symptoms can occur at certain exposures levels, it is a very different thing to reverse that relationship and announce that claimed symptoms thereby determine the level of exposure.

Applying the Frye standard, the court concluded that the experts’ methods were not generally accepted in the scientific community:

“Although unanimity is not required, the proponent must show consensus in the scientific community as to the [methodology’s] reliability. . . Plaintiff and his experts have failed to make that showing in this case. Dr. Frazier and Dr. Kramer concluded that plaintiff was exposed to a sufficient amount of gasoline vapor to have caused his injuries based on the reports by plaintiff’s mother and grandmother that the smell of gasoline occasionally caused them nausea, dizziness, headaches and throat irritation. Plaintiff and his experts have not identified any text, scholarly article or scientific study, however, that approves of or applies this type of methodology, let alone a “consensus” as to its reliability. . . .Dr. Frazier claims that it is accepted practice in occupational medicine to use standardized studies of symptoms as a guide when assessing exposures retrospectively. For support, she cites to the documentation report for gasoline by the American Conference of Governmental and Industrial Hygienists (ACGIH), which synthesizes the results of controlled studies and states that the threshold for immediate, mild toxic effect is approximately 1,000 ppm. She also cites to a 1991 study in which subjects exposed to known quantities of toluene and ethanol experienced an increase in headaches as their exposure level increased, as well as a 2008 report on the safety of n-Butyl alcohol in cosmetic products. None of those sources, however, establish that Dr. Frazier’s methodology, ‘when properly performed, generate[s] results accepted as reliable within the scientific community generally’” BMW of North America (Slip Op.) (emphasis added) citing Wesley, 83 N.Y.2d at 423, 611 N.Y.S.2d 97, 633 N.E.2d 451).

The court further rejected the experts’ argument that their courtroom-created methodology was similar to an odor threshold methodology used in some toxic tort cases: “Defendants state, and plaintiff does not dispute, that unleaded gasoline in the early 1990s had a very low odor threshold of between 0.50 and 0.76 ppm. Assuming that is correct, a person would have been able to detect the odor of unleaded gasoline vapor at less than 1 ppm. Had Dr. Frazier applied a true odor threshold methodology in this case . . . the only conclusion she could have reached was that plaintiff was exposed to at least 1 ppm of unleaded gasoline—the minimum level at which gasoline is detectable by human smell. Instead, Dr. Frazier averred that there is a minimum threshold of gasoline vapor beneath which individuals do not experience headache, nausea or dizziness. And because [the mother] experienced headaches, nausea and dizziness, Dr. Frazier concluded she must have been exposed to at least that concentration. Plaintiff has not shown that such a “symptom-threshold” methodology, unlike the odor threshold methodology admitted in other cases, has been generally accepted in the scientific community.” Id. (emphasis added).

This decision illustrates that defendants don’t necessarily need Daubert to keep unreliable science out of the courtroom. In fact, every court in this particular litigation, from the trial court to New York’s Court of Appeals, rejected this litigation science under the Frye standard. This is a decision worth keeping in the quiver for the next time you are moving to exclude an expert’s opinion in a Frye state.