HINDSIGHT BIAS, DAUBERT, AND THE SILICONE BREAST IMPLANT LITIGATION Making the Case for Court-Appointed Experts in Complex Medical and Scientific Litigation

Empirical research indicates that knowledge of the outcome in a given case influences juror deliberations. This bias is compounded when the jury must evaluate complex scientific evidence. Because jurors typically lack the background necessary to evaluate such evidence, they often use hindsight as a"cognitive shortcut.""Junk science" can exacerbate this tendency by offering a" scientific" link between the injury and the product. Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) , properly applied, can defuse junk science testimony and mitigate its distorting effect on legal outcomes. The authors argue that judges carrying out Daubert 's prerogatives should, where feasible, appoint independent experts and science panels to educate themselves and the jury, and thereby improve the likelihood that legal decisions will be based on sound scientific understanding.