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934 COMMENTARIES

Boston City Hospital/Boston

University School of

Medicine

Boston, MA 02118

ACKNOWLEDGMENTS

This work was completed while I was a Scholar-in-Residence at

the Center for the Future of Children at the David and Lucile

Packard Foundation. I would like to thank Dick Behrman and

Gene Lewitt of the Foundation for their continuing support and

critical comments. Birt Harvey was also kind enough to share his

experience and wisdom. Finally, I thank the Rand Corporation’s

Children’s Quality of Care Clinical Group-particularly Beth

McGlynn, Neal Halfon, and David Bergman.

REFERENCES

1. Jost iS. Health system reform-forward or backward with quality

oversight? JAMA. 1994;271 :1508-1511

2. Kelly JT. Evaluating quality performance in alternate health care delivery systems. JA.MA. 1994;271 :1620-1621

3. Andersen Consulting. Kaiser Permanente-Northern California Region-1993

Quality Report Card. South Carolina: Arthur Andersen and Co; 1993

4. Siu AL, McGlynn EA, Beers MH, et al. Choosing quality-of-care

mea-sures based on the expected impact of improved quality of care for the

major causes of mortality and morbidity. Santa Monica, CA: Rand; 1992

5. American Academy of Pediatrics Committee on Practice and Ambula-tory Medicine. Guidelines for Health Supervision. Elk Grove Village, IL:

American Academy of Pediatrics; 1981

6. Shildes JL, Jojokian AB, Keenan MP, et a!. Preventive Health Care For

Children-Experience From Selected Foreign Countries. GAO/HRD-93-62.

Washington, DC: United States General Accounting Office; 1993

7. Centers for Disease Control. Hepatitis B virus: a comprehensive strategy

for eliminating transmission in the United States through uruversal

childhood vaccination. MMWR. 1991;40:11-19

8. Freed GL, Bordley WC, Clark SJ, Konrad TR. Universal Hepatitis B

immunization of infants: reactions of pediatricians and family physi-cians over time. Pediatrics. 1994;93:747-751

9. Ryan AS, Rush D, Krieger FW, Lewandowski GE. Recent declines in

breast-feeding in the United States, 1984 through 1989. Pediatrics. 1991;

88:719-727

10. Cunningham AS, Jelliffe DB, Patrice Jelliffe EF. Breast-feeding and

health in the 1980s: a global epidemiologic review. JPediatr. 1991;118:

659-666

I I. Mitchell EA, Scragg R, Steward AW, et al. Results from the first year of

the New Zealand cot death study. N Z Med I. 1991;104:71-76

12. Dwyer T, Ponsonby A-L, Gibbons LE, Newman NM. Prospective cohort

study of prone sleeping position and sudden infant death syndrome.

Lancet. 1991;337:1244-1247

13. Wiffinger M, Hoffman HJ, Hartford RB. Infant sleep position and risk

for sudden infant death syndrome: report of meeting held January 13

and 14, 1994, National Institutes of Health, Bethesda, MD. Pediatrics.

1994;93:814-819

14. AAP Task Force on Infant Positioning and 5105. Infant sleep position

and sudden infant death syndrome (SIDS) in the United States: joint

commentary from the American Academy of Pediatrics and Selected

Agencies of the Federal Government. Pediatrics. 1994;93:820

15. American Academy of Pediatrics. Policy Reference Guide of the American

Academy of Pediatrics, A Comprehensive Guide to AAP Policy Statements

Issued Through December 1993. Elk Grove Village, IL: American Academy

of Pediatrics; 1994

16. Bass JL, Christoffel KK, Widome M, et al. Childhood injury prevention

counseling in primary care settings: a critical review of the literature. Pediatrics. 1993;92:544-550

17. US Preventive Services Task Force. Guide to Clinical Preventive Services:

An Assessment of the Effectiveness of 169 Interventions. Baltimore, MD:

Williams and Wilkins; 1989;xix-xxxvii:315-329; 387-391

18. Dworkin PH. Developmental screening-expecting the impossible?

Pediatrics. 1989;83:619-622

19. Brown MS. Vision screening of preschool children: how to check on

visual acuity and heterophoria as part of a routine physical examina-hon. Clin Pediatr. 1975;14:968-973

20. Wasserman RC, Croft CA, Brotherton SE. Preschool vision screening in

pediatric practice: study from the pediatric research in office settings

(PROS) network. Pediatrics. 1992;89:834-838

21. Crouch ERJr, Crouch ER. Pediatric vision screening: why? when? what?

how? Contemporary Pediatrics. 1991;10:9-30

22. Dallman PR, Yip R. Changing characteristics of childhood anemia.

IPediatr. 1989;114:161-164

23. Yip R, Walsh KM, Goldfarb MG, Binkin NJ. Declining prevalence of

anemia in childhood in a middle-class setting: a pediatric success story? Pediatrics. 1987;80:330-334

24. Lozoff B, Jimenez E, Wolf AW. Long-term developmental outcome of

infants with iron deficiency. N Engi JMed. 1991;325:687-694

25. Harvey B. Should blood lead screening recommendations be revised?

Pediatrics. 1994;93:201-204

26. Charleton RA, Dwyer J, Finberg L, et al. Report of the Expert Panel on

Population Strategies for Blood Cholesterol Reduction. A statement

from the National Cholesterol Education Program, National Heart,

Lung, and Blood Institute. Circulation. 1991;83:2154-2232

27. Centers for Disease Control. Preventing Lead Poisoning in Young Children:

A Statement by the Centers for Disease Control. Atlanta, GA: US

Depart-ment of Health and Human Services; 1991

28. American Academy of Pediatrics, Committee on Infectious Diseases.

Universal hepatitis B immunization. Pediatrics. 1992;89:795-799 29. Cleary PD, McNeil BJ. Patient satisfaction as an indicator of quality care.

Inquiry. 1988;25:25-36

30. Berwick DM, Godrey AB, Roessner J. Curing health care: new strategies

for quality improvement. San Francisco, CA: Jossey-Bass; 1990

31. Berwick DM, Enthoven A, Bunker JP. Quality management in NHS: the

doctor’s role-I. Br Med J.1992;304:235-239

32. Safran DG, Tarlov AR, Rogers WH. Primary care performance in

fee-for-service and prepaid health care systems-results from the medical

outcomes study. IA/vIA. 1994;271:1579-1586

33. Institute of Medicine. Report of a Study: A Manpower Policy for Primary

Health Care. Washington DC: National Academy of Sciences; May 1978

34. Cartland J, Yudkowsky BK. Barriers to pediatric referral in managed

care systems. Pediatrics. 1992;89:183-188

35. Newacheck PW, Hughes DC, Stoddard J, Halfon J. Children with chronic illness and Medicaid managed care. Pediatrics. 1994;93:497-500

United

States

Supreme

Court

Rules

on

Expert

Testimony

Many medical and legal commentators have

ex-pressed concern about the validity of scientific

evi-dence that is proffered by expert witnesses at

depo-sitions and in courts of law.1’2 The sparse research

that is available on the testimony of medical expert

witnesses suggests that it is frequently flawed and

erroneous.3

On June 28, 1993, the United States (US) Supreme

Court ruled on the proper standard for admissibility

of scientific evidence in the courtroom.4 Although

the ruling establishes guidelines that are binding

only in federal courts, it is expected that many state

courts will follow the Count’s ruling. This

commen-tary reviews the Court’s guidelines for admissibility

of expert testimony, and expresses concern about

their applicability in future cases involving scientific

testimony.

The case from which the Supreme Count

estab-lished its guidelines was Daubert v Merrell Dow

Phar-maceuticals.4 The scientific evidence at issue in

Daub-ert related to whether the plaintiffs’ (childnens’)

congenital limb deformities were caused by

Bendec-tin, the anti-nausea drug that was taken by the

moth-ens during pregnancy. The expert witnesses for the

plaintiffs attributed causation of the limb deformity

Received for publication Jan 17, 1994; accepted Feb 6, 1995.

PEDIATRICS (ISSN 0031 4005). Copyright © 1995 by the American

Acad-emy of Pediatrics.

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COMMENTARIES 935

to Bendectin, citing in vivo animal teratology studies,

in vitro data, analysis of the chemical structure of

Bendectin and its similarity to other tenatogens, as

well as a reanalysis of previously published human

statistical studies. This reanalysis was unpublished,

not peer-reviewed, and prepared solely for use in

litigation.

The expert witness for the defendant Merrell Dow

opined that, after a published literature review

in-volving 30 studies and 130 000 patients, no properly

designed epidemiologic study demonstrated that

Bendectin caused the limb deformities alleged in the

case. The defendant’s theory was accepted by the

federal trial judge who dismissed the case. This

judg-ment was affirmed by a federal appellate court

which noted that the unorthodox approach of the

plaintiffs’ experts failed to meet the standard

neces-sary for scientific evidence to be admitted in a federal

trial, ie, that it lacked “general acceptance among

scientists in the field.”

The US Supreme Court rejected both lower courts’

reasoning, and remanded the case back to the trial

count for further evaluation consistent with its

guide-lines. These less rigid guidelines provide for the trial

judge to act as a “gatekeeper” to secure that an expert

witness’s opinion is relevant and is based on a

reli-able foundation. In determining this, the trial judge

should rely on whether the expert’s underlying

rea-soning on methodology is scientifically valid, rather

than focusing on the conclusion to which the

meth-ods lead. The following parameters regarding

scien-tific methods and theories will be relevant, but need

not be controlling, in determining their validity,

ne-liability, and subsequent admissibility in court:

whether the methods or theories have been (or can be)

tested; their known or potential error rate; publication

or peer review; and their widespread acceptance

within a relevant scientific community. The Supreme

Court then established that the appropriate way to

challenge contested scientific evidence was through

cross examination, presentation of contrary evidence,

and instruction to the jury on the burden of proof,

rather than refusing to allow it to be admitted at trial.

It is unclear what effect the Daubert opinion will

have in improving the expert witness process in this

country. The primary responsibility placed on the

trial judge in determining what scientific evidence

should be admitted at trial may place an undue

burden on many judges who are likely to have

in-sufficient background to evaluate complex and

tech-nical scientific testimony.8 It is likely that the liberal

guidelines sanctioned by the Supreme Court will

induce many trial judges to admit most scientific

evidence and allow the jury to make the final

deci-sion as to its importance. This raises the obvious

concern that juries, trapped in a “battle of the

ex-perts,” may decide complex scientific cases on the

basis of empathy towards one of the parties rather

than on the scientific merits at issue.

The potential effect of Daubert on future medical

malpractice cases should force established medical

on-ganizations to take a more proactive role in excluding

“junk science” from admission at trial. Judges will

likely need, and probably be willing to accept,

assis-tance from valid medical specialty organizations in

producing statements that represent accepted majority

views of specific medical tenets and practice. Examples

of such statements currently exist for many medical

issues.9”#{176}These statements, enacted by panels of

recog-nized experts in specialty societies, and preferably

ap-proved by the membership of these societies, are good

starting points but need to be expanded both in

num-ben and in content. They should also be made more

accessible to attorneys for both plaintiff and defense as

well as to judges. These statements can provide a

foun-dation for the judge before trial that an opposing expert

should be allowed to overcome only by presenting

credible contrary evidence why the majority view is not

controlling in the case at issue.

Rigorous guidelines relating to experts, devised by

some specialty organizations, are exemplary and

should be more openly publicized.”2 Sections on

ex-pert witnesses are needed in each specialty

organiza-tion to monitor experts and enforce their guidelines.

The American Association of Neurological Surgeons

currently has a program addressing some of these

is-sues. Specialty organizations should also devise

meth-ods of ratifying on “certifying” individual experts

ac-cording to their area of expertise.’3 The recognition of

such experts by national medical organizations may

instill additional importance to their testimony and will

also subject them to peer review. Peer review of expert

witnesses has its proponents1’14’15 as well as its

pit-falls.’6’17 Many of these pitfalls can be overcome via

certification because the expert, who gains credibility

from certification, would be subject to the rules and

regulations of these same certifying organizations,

which could include voluntary peer review. In

addi-tion, the recognition of a certified expert may

encour-age judges to utilize them as court-appointed “neutral”

experts. This concept of a court-appointed expert,

pro-posed nearly a century ago by a prominent jurist,’8

continues to be advocated by medical8”4 and legal’3”9

commentators, as well as by a majority of state and

federal judges.2#{176}Such an expert may not be favored by

either plaintiff or defense attorneys who may desire to

exert their own level of “control” over their respective

witnesses. However, the “gatekeeper” role assigned to

the trial judge by the Daubert decision should

encour-age judges to utilize such witnesses, preferably at

pre-trial conferences, to assist them in deciding what

evi-dence will be admitted at trial. Not only are most state

judges and all federal judges21 permitted to utilize such

third party experts, but at least one prominent federal

judge, a recognized expert in legal evidence, has

sug-gested that judges might be more willing to utilize

court-appointed experts if they were more easily

acces-sible, and if their fairness and impartiality could be

assured by professional oversight and discipline.’3 Use

of these court-appointed experts at pre-trial

confer-ences might also provide better analysis of the

strengths and weaknesses of the case for both sides,

and diminish the number of cases actually going to trial

where outcome is less predictable, and money

judgments can potentially be exorbitant.

Society will be served best by more of a combined

and forceful effort of both the medical and legal

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936 COMMENTARIES

establishment in ensuring that trials involving

scientific evidence are fair and accurate.

GARY N. MCABEE, DO, JD

Departments of Pediatrics and Neurology

Nassau County Medical Center/SUNY at Stony Brook

East Meadow, NY 11554

REFERENCES

I. Brent RL. The irresponsible expert witness: a failure of biomedical

grad-uate education and professional accountability. Pediatrics. 1982;70:754-762 2. Huber PW. Galileo’s Revenge: Junk Science in the Courtroom. New York:

Basic Books, 1991

3. Safran A, Skydell B, Ropper S. Expert testimony in neurology: Massa-chusetts experience 1980-1990. Neurol Citron. 1992;2:1-6

4. Daubert v Merrell Don’ Pharmaceuticals, Inc. 113 SCt 2786 (1993)

5. Daubert v Merrell Doe’ Pharmaceuticals, Joe, 113 SCt 2786 (1993)

(Rehnquist J,dissenting)

6. Weinstein J. Role of expert testimony and novel scientific evidence in

proof of causation 12. Address presented before the ABA Annual

Meeting; August 9, 1987; San Francisco, CA

7. Ferebee p Chevron Chemical Cv, 736 F.2d. 1529, 1534-1535 (DC Cir), cert.

denied 469 US 1062 (1984)

8. Brennan T. Helping courts with toxic torts: some proposals regarding alternative methods for presenting and assessing scientific evidence in

common law courts. U Pitt L R 1989;51:1,2 nIl

9. American Academy of Neurology, Therapeutics & Technology

Assess-ment Subcommittee. Assessment: thermography in neurologic practice.

Neurol. 1990;40:523-525

10. Howson CP, Fineberg HV. Adverse effects following pertussis and

rubella vaccines: summary of a report of the Institute of Medicine. JAMA. 1992;267:393-397

I I. American Academy of Neurology. Qualifications and guidelines for the

physician expert witness. 1989

12. American Academy of Pediatrics Committee on Medical Liability.

Guidelines for expert witness testimony. Pediatrics. 1994;94:755-756

13. Weinstein JB. Improving expert testimony. U Rich,nond L Rev. 1986;20:

473-497

14. Lundberg GD. Expert witness for whom? JAMA. 1984;252:251

15. Shields WD. Peer review of expert medical-legal testimony: a proposal for child neurology. JChild Neurol. 1992;7:237-239

16. Short GF. The paladin problem. I Child Neurol. 1994;9:213-215

17. McAbee G. Peer review of medical expert witnesses (reply). JChild Neurol. 1994;9:216-217

18. Hand L. Historical and practical considerations regarding expert

testi-mony. Hare L Rev. 1901;15:40-58

19. Lee TV. Court-appointed experts and judicial reluctance: a proposal to

amend Rule 706 of the Federal Rules of Evidence. Yale Law Pol Rev.

1988;6:480-503

20. Judges opinions on procedural issues: a survey of state and federal

judges who spent at least half their time on general civil cases. Boston U L Rev. 1989;69:731-779

21 . Federal Rule of Evidence 706

Adolescent

Immunization:

The

Access

and

Anchor

for

Health

Services?

Concern is escalating for the medical and social

health of our adolescents under the current

discoun-aging avalanche of statistics. The need for

compre-hensive health care visits for teens and pre-teens has

been highlighted as a national health objective for the

Received for publication Dec 9, 1994; accepted Jan 24, 1995.

Correspondence to: Caroline Breese Hall, MD, University of Rochester

School of Medicine, 601 Elmwood Ave. Box 689, Rochester, NY 14642-8689.

PEDIATRICS (ISSN 0031 4005). Copyright ©1995 by the American Acad-emy of Pediatrics.

year 2000,1 and emphasized by the recent goals and

guidelines of the American Academy of Pediatnics24

and the American Medical Association.5 The

fne-quency of pregnancies in early adolescence and the

steep rise of sexually transmitted diseases, hepatitis

B infections, drug abuse, and smoking in teens have

been documentedP Adolescence, if not the age of

reason, is the age of risk.

Despite this recognition and unanimity of

pun-pose, we have thus fan failed to give to many, if not

most, of our adolescents routine health care that

encompasses counseling, health education, and

pne-ventive measures. Adolescents have, on the average,

fewer contacts with a physician, and as of 1986, 28%

of 10- to 18-year-olds had no such contact for oven a

year.7 Furthermore, only 7% of the office visits made

by adolescents to physicians were general medical

visits for preventive care, and only 15% could be

considered health supervision visits.8’9 Programs that

offered comprehensive health cane for adolescents in

1990 served only 5.3% of our country’s 15- to

19-year-olds.’#{176}The reasons are legion-access, acceptability,

cost, and perhaps both the infra and supra

struc-tures.7”1’3 The solutions are not obvious and will

require creativity and coordination of community

capabilities-and perhaps examination of our

successes in the delivery of health care.

In what instances have our recommendations

worked? The need for routine immunizations in

early childhood is well accepted and woven into the

fabric designed for care of the young child. However,

only about half to two-thirds of children at 2 years of

age are immunized fully.’4 But at school entry 98%

are immunized completely. The lessons inferred are

that recommendations work when enforced and

when tied to schools. Can we apply this same bite to

the pne-adolescent years? What if middle school

en-try required the administration of immunizations

designated for this age?

Such a health cane visit, enforced by school

immu-nization laws, could ensure access to pre-adolescents

and be the sesame to comprehensive cane for the

coming turbulent years. This visit could be in private

offices on primarily school-based and would be best

accomplished at 10 to 12 years of age on middle

school, as 99% of children remain in school until 13

years of age.’5 The difficulties in implementing

vac-cination programs aimed at adolescents and schools

have been emphasized and, thus, perhaps

underuti-lized in this country.11 However, recent innovative

immunization programs for hepatitis B, based in

middle schools in California and Louisiana, as well

as in Canada, demonstrate this approach can be

suc-cessful.15”6 Furthermore, in a recent national survey

of programs offering comprehensive health service

programs for adolescents, 45% were school-based,

and 72% obtained federal funding.’#{176}”7

The new changes in the immunization schedule

recommended by the American Academy of

Pediat-nics, the Centers for Disease Control, and the

Amen-ican Academy for Family Practice would facilitate

this proposal.’8”9 In this schedule several

immuniza-tions are being concentrated in a pre-adolescent visit.

The tetanus-diphtheria vaccine may now be

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(4)

1995;95;934

Pediatrics

Gary N. McAbee

United States Supreme Court Rules on Expert Testimony

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1995;95;934

Pediatrics

Gary N. McAbee

United States Supreme Court Rules on Expert Testimony

http://pediatrics.aappublications.org/content/95/6/934

the World Wide Web at:

The online version of this article, along with updated information and services, is located on

American Academy of Pediatrics. All rights reserved. Print ISSN: 1073-0397.

American Academy of Pediatrics, 345 Park Avenue, Itasca, Illinois, 60143. Copyright © 1995 by the

been published continuously since 1948. Pediatrics is owned, published, and trademarked by the

Pediatrics is the official journal of the American Academy of Pediatrics. A monthly publication, it has

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References

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