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After receiving the reports, the litigants will be able to conduct an informal discussion or discovery-type deposition of the panel members, which will be followed by a videotaped deposition of the panelists by a court-appointed official. Litigants also will be allowed to cross-examine the panelists. The panel members will not testify in person at any of the trials.
Although litigants will be allowed to call their own expert witnesses during trial, the reports may be used by trial courts in determining the admissibility of other expert testimony.
In the future, "there probably is going to be increased consideration of the use of neutral experts" because it is so hard for judges and juries to evaluate expert testimony, said defense attorney Timothy Dyk, a partner with Jones, Day, Reavis & Pogue in Washington.
Midland, Mich.-based Dow Corning Corp., one of the major defendants in the breast implant litigation, is "all for it," a spokesman said. The panel "should be able to sift through the junk science and look at the real picture."
The spokesman said Dow Corning is confident the experts will determine there is insufficient evidence to conclude that silicone breast implants cause disease or illness.
This approach "makes a great deal of sense," stated Thorn Rosenthal, a partner with Cahill Gordon & Reindel in New York. "This panel will know how the preponderance of the scientific community comes down" on the question of whether silicone causes systemic illnesses. It is a "fundamentally fair way to proceed."
"This would be a great approach in situations. . .where tens of thousands of cases go after the same scientific evidence," Mr. Rosenthal said.
The panel was created by Judge Pointer, who recently was appointed to hear all federal breast implant product liability cases against Dow Chemical Co. and Dow Corning Corp. (BI, July 7). Judge Pointer is well-known in legal circles for his knowledge of complex litigation.
Judge Pointer last year was asked by the national plaintiffs steering committee in the breast implant litigation to convene a panel of independent medical experts "to evaluate and critique pertinent scientific literature and studies" relating to the litigation, according to a district court order. On May 30, 1996, he outlined the panel approach.
Under a 1993 U.S. Supreme Court decision, Daubert vs. Merrell Dow Pharmaceuticals Inc., new rules for determining the admissibility of scientific expert testimony were established. The Daubert decision requires district courts to exclude from trial unreliable or unscientific expert testimony. This can be difficult, however, because each side in a trial interprets the Daubert decision to support its expert testimony choices.
By creating the scientific panel, Judge Pointer has "set forth a reference point that everyone can use that has some credibility," Mr. Rosenthal noted.
One limitation to this approach, however, is that "it ages quickly" as scientific knowledge changes, he added.
The four members of the panel are: Dr. Betty A. Diamond, a professor in the department of microbiology and immunology at the Albert Einstein College of Medicine in New York; Dr. Barbara S. Hulka, a professor in the department of epidemiology at the University of North Carolina's public health school in Chapel Hill; Dr. Peter Tugwell, chairman of the department of medicine at the University of Ottawa in Ottawa, Ontario; and Dr. Nancy I. Kerkvliet, a professor and toxicologist in the department of agricultural chemistry at Oregon State University in Corvallis.
John M. Kobayashi, a Denver attorney, was appointed to advise panel members as needed about their responsibilities.