'JUNK SCIENCE' CASE PART OF THIN BUSINESS DOCKET

WASHINGTON-The Supreme Court will decide in its upcoming term how wide courtroom doors must open to what some people have branded "junk science."

But General Electric Co. vs. Robert K. Joiner is one of relatively few cases of interest to employers carried over into the high court's 1997-98 term. In fact, only about one-third of the 48 cases accepted but not decided during the court's last term involve business issues, pointed out legal experts at two Supreme Court previews last week.

Although the justices won't announce which additional cases they will hear until next week, they probably will accept relatively few other cases for review if they continue their practice of recent years.

In addition to the "junk science" case, other cases the justices already have agreed to hear involve:

Whether same-sex sexual harassment charges can be brought under Title VII of the Civil Rights Act of 1964.

The scope of the federal Age Discrimination in Employment Act.

Whether a company can be sued by a citizens'

group under the Emergency Planning and Community-Right-to-Know Act if it complies with the act's reporting requirements within 60 days of being served notice that a suit was pending.

Nevertheless, "it's somewhat of a sparse docket in terms of business cases," said Glenn Lammi, chief counsel of the Washington Legal Foundation's Legal Studies Division. The foundation is a free market-oriented public interest law firm that held a Supreme Court preview last week.

"The term so far does not appear to be of landmark importance to business," said Mark Levy, a partner in the Washington office of Howrey & Simon, during a discussion of the Supreme Court docket sponsored by the National Chamber Litigation Center, the legal arm of the U.S. Chamber of Commerce, two days after the WLF briefing.

Perhaps the most important of the few risk management-related cases is the Joiner case, which the justices will hear on Oct. 14.

The case revolves around how much discretion a district court judge has in determining whether expert testimony is admissible (BI, April 7). Mr. Joiner claimed that his exposure to polychlorinated biphenyls, or PCBs, while working as chief electrician for the city of Thomasville, Ga., had caused him to develop lung cancer. He sued GE and other manufacturers of electrical equipment, claiming they were liable.

But a judge for the U.S. District Court for the Northern District of Georgia ruled that experts Mr. Joiner relied upon to back his contention that PCBs had caused his cancer did not have a valid scientific foundation for their conclusion. The judge cited the U.S. Supreme Court's 1993 Daubert vs. Merrell Dow Pharmaceuticals ruling, which sets criteria for federal court judges charged with determining whether or not expert testimony can be admitted.

The 11th U.S. Circuit Court of Appeals, however, ruled that the district court had gone too far, holding that there should be a preference for admitting expert testimony and that decisions to exclude such testimony must be subject to a "particularly stringent standard of review."

The appeals court decision "makes it more difficult to keep junk science out of the courtroom," said Richard Thornburgh, former U.S. attorney general and now counsel to the Pittsburgh-based law firm Kirkpatrick & Lockhart's Washington office, at the WLF-sponsored Supreme Court preview last week.

"This whole area is desperately in need of some bright-line rules," said Mr. Thornburgh, adding he thinks the high court will overturn the appeals court decision. "I think what most people in this area are looking for is some degree of predictability," he said.

"I think GE is likely to win this case," because its position is more in keeping with most legal thinking, Mr. Levy said at the chamber briefing.

The case of Joseph Oncale vs. Sundowner Offshore Services Inc. is "my candidate for the most predictable outcome of any case in this term," Donald B. Ayre, a partner in the Washington office of Jones, Day, Reavis & Pogue and a former deputy U.S. attorney general, said at the WLF briefing. He said he thinks Mr. Oncale's interpretation that the law covers same-sex harassment will prevail.

Mr. Ayre said the Supreme Court already has recognized a hostile work environment based on sex-related conduct as prohibited under Title VII, and it is impossible to reasonably distinguish the kind of conduct involved in the Oncale case from that already deemed covered by the act.

The case involves Joseph Oncale, who claimed a supervisor and two other co-workers on an offshore oil drilling platform where he worked as a roustabout subjected him to repeated sexual harassment, including threats of homosexual rape (BI, June 16).

He sued his employer, Sundowner, charging that his civil rights had been violated. But although the Equal Employment Opportunity Commission has long held that the Civil Rights Act's protections extend to same-sex harassment-a view shared by some U.S. circuit appeals courts-both the U.S. District Court for the Eastern District of Louisiana and the 5th U.S. Circuit Court of Appeals held that Mr. Oncale could not sue under the Civil Rights Act.

"The issue has created confusion in the courts of appeal," particularly when the alleged harassment occurs among same-sex heterosexuals, pointed out Cliff Sloan, a partner in the Washington office of Wiley, Rein & Fielding. He called the case a very "important employment Title VII case" during the chamber briefing.

No date has been set for argument.

Another employment case out of Louisiana, Dolores V. Oubre vs. Entergy Operations Inc., also will be decided. The case centers around the question of whether workers can sue for alleged age discrimination under the federal ADEA after they have accepted a severance package (BI, April 28). The case will be argued in November.

The justices also will address the issue of toxic substance reporting when they decide Citizens for a Better Environment vs. The Steel Co.

The U.S. 7th Circuit Court of Appeals ruled that a Chicago-based citizens group could seek penalties under the Emergency Planning and Community Right-to-Know Act even though the company corrected the reporting violations before the suit was filed. Under the act, a citizens' group has to send a "notice of intent to sue" listing the alleged violations and then wait at least 60 days before filing suit.

The Steel Co., also based in Chicago, submitted the proper forms within the 60 days, but the citizens' group went ahead with its suit, and the appeals court allowed it to proceed on the basis that suits could be pursued for past failures to report.

The justices will hear the case on the first day of their new term, Oct. 6.

Looking ahead, "the issue of privatization and the issue of liabilities of private companies" that take over government functions is certain to come before the high court again, said Mr. Sloan. The court already has decided that private prison guards do not enjoy the same immunity from inmate suits as some of their public sector colleagues do, he said.

As private firms assume more and more government functions, such as those involved with welfare, more suits are inevitable, Mr. Sloan said.