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Bar Journal 2017

Should 'Junk Science' Have a Place in Agency Decision Making?

By Jason T. Seay

History is littered with scientific debate regarding what exists and how things interact with each other. The intersection between that debate and the law presents some of the most difficult and important, yet routine, questions lawyers may face. Science is no “truth machine.” What is scientifically sound may not be legally sound, and vice versa, because “[s]cientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly.”1 Although scientific understanding of phenomena is constantly evolving, the legal analysis for determining the admissibility of scientific evidence in court is well known to most lawyers. Yet, an open question remains as to whether the legal framework for determining the admissibility of scientific or technical evidence should apply to state agencies acting in a judicial capacity. Should “junk science” have a place in hearings before Oklahoma agencies, but not in Oklahoma trial courts?

The court, in Sanchez-Munoz v. State of Oklahoma, ex rel. Oklahoma Horse Racing Commission,2 applied – without deciding whether it should do so – an analysis resembling the Daubert standard to expert evidence presented to an administrative agency acting in a judicial capacity.3 It also applied the abuse-of-discretion standard of review to the issue on appeal.4 However, Sanchez-Munoz does not provide guidance on whether Daubert and its progeny should apply to administrative agencies acting in a judicial capacity. This short article attempts to present the basic issues of applying Daubert to agencies acting in a judicial capacity and suggests state agencies should inquire as to the relevance and reliability of scientific or technical evidence in hearings before them.  

BRIEF OVERVIEW OF THE DAUBERT TRILOGY

For 70 years, Frye v. United States5 governed the admissibility of scientific evidence in federal court. It permitted such evidence only if it was “generally accepted.”6 In Daubert,7 the court clarified the role of the trial judge as being a gatekeeper responsible for determining the admissibility of evidence.8 “[T]he trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”9 Under Daubert, the expert’s testimony must be “scientific knowledge,” not simply generally accepted, in order to be deemed relevant.10 The court identified four factors to determine the admissibility of scientific evidence.11 
 
In 1997, the Supreme Court revisited Daubert in General Electric Co. v. Joiner.12 The court held that abuse of discretion is the standard of review for reviewing a district court’s evidentiary ruling, regardless of whether the ruling allowed or excluded expert testimony.13   

In Kumho Tire Co. v. Carmichael,14 the Supreme Court extended Daubert to all forms of expert testimony – not just scientific testimony – and further clarified the flexibility of the Daubert factors.15   

We conclude that Daubert’s general holding – setting forth the trial judge’s general “gatekeeping” obligation – applies not only to testimony based on “scientific” knowledge, but also to testimony based on “technical” and “other specialized” knowledge.  We also conclude that a trial court may consider one or more of the more specific factors that Daubert mentioned when doing so will help determine that testimony’s reliability. But, as the Court stated in Daubert, the test of reliability is “flexible,” and Daubert’s list of specific factors neither necessarily nor exclusively applies to all experts or in every case.  Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.16 

DAUBERT IN OKLAHOMA
In Taylor v. State,17 the Oklahoma Court of Criminal Appeals adopted the Daubert standard for admissibility of expert testimony.18  “Daubert makes clear that trial judges must continue to act as gatekeepers, ensuring that all novel scientific evidence is both reliable and relevant.”19 In Gilson v. State,20 the court extended Daubert to testimony based on technical and other specialized knowledge.21  

In Christian v. Gray,22 the Oklahoma Supreme Court adopted “Daubert and Kumho as appropriate standards for Oklahoma trial courts in deciding the admissibility of expert testimony in civil matters.”23 The Oklahoma Supreme Court developed a two-step analysis for determining the proper standard of review for “Daubert challenges.”24  

NECESSITY OF EXPERT TESTIMONY IN ADMINISTRATIVE PROCEEDINGS25 
Before determining what standard expert evidence may be tested for purposes of determining admissibility, it should be asked whether expert evidence is necessary for purposes of the administrative proceeding. Although it is generally accepted that expert testimony before an administrative agency is permissible, courts “which have considered the issue have reached conflicting views on the issue of whether expert testimony is required …” for purposes of administrative action.26 On one hand, some courts do not require expert testimony over scientific or technical matters on the grounds that the expertise of the administrative body regulating a profession is sufficient alone.27 However, in doing so, the agency must give notice of its opinion before any proceeding with an opportunity to rebut it.28   

On the other hand, most courts that require expert testimony over scientific or technical matters in administrative proceedings focus upon the requirements for judicial review of the decisions.29 These courts reason judicial review of agency rulings cannot effectively determine the basis for the decision of the agency and evaluate the adequacy of the evidentiary support for that decision in the absence of expert testimony.30 However, the majority view does not require expert evidence regarding: 1) official notice of facts where permissible; 2) notice of stipulations; 3) matters where expert evidence is not useful; and 4) acts considered malum in se.31

THE USE OF DAUBERT IN ADMINISTRATIVE PROCEEDINGS
“Given that expert testimony is crucial to modern civil and criminal litigation, the emergence of the Daubert reliability test for expert testimony is probably the most radical, sudden, and consequential change in the modern history of the law of evidence.”32 Yet, “[n]o court has yet required an administrative agency to exclude expert testimony based upon Daubert …”33  

Debate concerning the use of Daubert in administrative proceedings in reality concerns the discretionary limits of administrative agencies – i.e., how much deference should be afforded to administrative agencies when acting on scientific or technical information.  

The conclusion reached on this point de-pends partly on the role one believes administrative agencies should play. For instance, if the overriding purpose of administrative agencies and regulations is to be proactive in protecting the public from perceived harms … policy considerations likely weigh against applying Daubert standards in administrative proceedings ….  On the other hand, if agencies are not prohibited from acting on unreliable evidence, then arguably unnecessary and overly restrictive regulations could be adopted, requiring the expenditure of substantial monetary sums and costly compliance efforts.34

‘Regulatory Daubert’ – The Minority View
On one side of this spectrum, some urge a stringent reliability test should be applied to the judicial review of administrative agency actions.35 Such views are colloquially referred to as “regulatory Daubert.”36 Those who favor regulatory Daubert argue that good science is good science, regardless of the context, and courts should not allow administrative agencies to rely upon dubious scientific evidence in making administrative decisions. “[I]f private litigants are entitled to rules requiring sound science to protect parochial interests, certainly the public should be equally assured that good science is the foundation for [government] … action.”37
  
Administrative Discretion –The Majority View
On the opposite end of the spectrum, opponents of regulatory Daubert object to an extension of a strict application of the reliability test.38 Some object, at least in part, on the grounds that the Daubert test should not be applied by judges in any context.39 Others urge that regulatory Daubert would have an unwelcome deregulatory impact through judicial decision rather than legislation.40  

Other objections rest upon the purpose of administrative bodies.    

[T]he reason Daubert does not technically apply in administrative proceedings is be-cause regulatory agencies are largely supposed to be forward-thinking and not held to the standards applicable to ‘courtroom science.’  In other words, regulatory agencies do not always wait (and, depending on your viewpoint, may not be able to wait) to act until the science under consideration satisfies the Daubert standard.41 

There is also concern that applying Daubert in the administrative realm encroaches upon separation of powers issues.42 
 
So far, federal courts have consistently rejected regulatory Daubert, because Rule 702 does not strictly apply to judicial review of agency decision making,43 and at least one court has expressed concern regarding separation-of-powers values.44 Federal agencies have also rejected appeals to implement Daubert-like standards when reviewing scientific evidence.45   

‘Spirit of Daubert’ – The Middle-of-the-Road View Taken by the 7th Circuit
Just as the Federal Rules of Evidence do not technically apply to federal agencies,46 the Oklahoma Evidence Code technically does not apply to state agency proceedings by virtue of Article II of the Oklahoma Administrative Procedures Act, which provides a general, operational framework for agencies acting in a judicial capacity when conducting individual proceedings.47 However, whether evidence is admissible under the rules of evidence may “support the conclusion that the admission of the evidence comports with due process.”48  

Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit observed that even though the Daubert standard is based on the Federal Rules of Evidence and therefore does not directly apply to federal agency decisions, the spirit of Daubert does apply to administrative proceedings, and junk science has no more place in administrative proceedings than in judicial ones.49

Judge Posner first expressed this view in Niam v. Ashcroft,50 where the court observed that federal agencies are not bound by the Federal Rules of Evidence but only “the looser standard of due process of law.”51 As such, the “spirit of Daubert” should apply to review the scientific or technical evidence supporting agency action, and the court opined that it would be odd for an agency to use a standard for expert testimony that is more rigorous than Daubert.52 The supporters of this view stress that “‘[j]unk science’ has no more place in administrative proceedings than in judicial ones[,]”53 but also recognize that a stringent standard of reviewing agency action based on scientific or technical evidence is not mandated by any law.  

Like the majority of courts that require expert evidence in administrative proceedings, supporters of the spirit of Daubert recognize the need for agencies to clearly explain their reasons for action. “[T]he idea that experts should use reliable methods does not depend on Rule 702 alone, and it plays a role in the administrative process because every decision must be supported by substantial evidence.”54 “In order to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable, the factfinder must act as gatekeeper. Proposed [scientific] testimony must [therefore] be supported by appropriate validation – i.e., good grounds, based on what is known.”55 As such, the spirit of Daubert requires the agency to make some inquiry into validity of the scientific or technical facts proffered into evidence, with the Daubert factors providing guidance.56 This view has not received much reception outside of the 7th Circuit.57   

APPLYING DAUBERT TO STATE AGENCIES
Some state administrative agencies are tasked with enforcing various state laws through a process whereby the agency acts in a judicial capacity to determine if any person or entity within its purview violated statutes or regulations it is tasked with enforcing – professional licensing boards being the obvious example.58 When conducting such hearings, the agency is generally authorized to consider any probative and relevant evidence.59 When scientific or technical evidence is appropriate in an administrative proceeding, the question arises as to whether Daubert, as adopted by the Oklahoma Supreme Court in Gray, should apply to determine the admissibility of the evidence at issue. As discussed above, views vary.  

Specific agency regulations and statutes should be reviewed to determine if the Oklahoma Evidence Code is binding or guiding when the agency is acting in a judicial capacity. If it is binding, the agency may have incorporated, by way of regulation or statute, a strict application of Daubert to individual proceedings conducted before it. If it is guiding, it is suggested that the spirit of Daubert approach at an agency hearing provides the most balanced view and presents a good “hedge bet” should appeal issues arise concerning such evidence.  

A compelling policy reason justifies application of the spirit of Daubert. It promotes transparency in agency decision making while also helping to present the record in a manner appellate courts are accustomed to seeing and analyzing.60 It further aides to clearly separate scientific determinations and policy decisions made by agencies.61  

[C]ourts should compel the visibility of methods by ensuring that the agencies provide answers to two deceptively simple questions: (1) Have the agency’s methods of inference been identified? and (2) Does the agency explain how its methods are appropriate to the information on hand and how they support the ultimate inference used by the agency? Unless an agency can respond to both these questions in the affirmative, then the agency’s science-based decisions should risk reversal or remand by the courts. Courts already re-quire an “explanation” of the agency’s choices. [Such] … requires that the agency describe how it drew its inferences and identify the specific assumptions it made in the course of assembling the scientific evidence.62 

CONCLUSION
There is no hard-and-fast rule as to whether Daubert should apply to determine the admissibility of scientific or technical evidence in proceedings before administrative agencies in Oklahoma. Most would agree that junk science serves no place in the courtroom or in an agency’s hearing room. The spirit of Daubert provides a balanced approach to the issue. It does not infringe upon administrative authority and meets legitimate policy concerns to ensure transparency of agency action while also ensuring junk science has no place in agency decision making.  

1. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993).  
2. 2015 OK CIV APP 87, 360 P.3d 1267.  
3. Id. at 1270-71.  
4. Id. at 1270.  
5. 293 F. 1013 (D.C. Cir. 1923).  
6. Id. at 1014.  
7. See n. 1, supra.  
8. Id. at 597.  
9. Id. at 589.  
10. Id. at 589-90.  
11. Id. at 593-94 (The four key factors are: 1) whether the theory has been tested; 2) whether the theory has been subjected to peer review publication; 3) whether the theory has a known potential rate of error; and 4) whether the theory has been accepted in the relevant scientific community).  
12. 522 U.S. 136 (1997).   
13. Id. at 142.  
14. 526 U.S. 137 (1999). 
15. Id. at 147.  
16. Id. at 141-42 (internal cites omitted).
17. 1995 OK CR 10, 889 P.2d 319. 
18. Id. at 328.  
19. Id. at 329.  
20. 2000 OK CR 14, 8 P.3d 883.  
21. Id. at 907 (quoting Kumho, 526 U.S. at 147).  
22. 2003 OK 10, 65 P.3d 591.  
23. Id. at 600.  
24. Id. at 611; see id. at 612 (reviewing the trial court’s ruling in Christian not as one of admissibility or inadmissibility of an expert’s opinion but as a sufficiency of evidence issue, concluding the trial court did not sufficiently apply Daubert as a matter of law); but see Covel v. Rodriguez, 2012 OK 5, 272 P.3d 705, 710 (holding Daubert challenge to expert testimony made on directed verdict waived where issue was not raised prior to trial; opining a Daubert challenge may not be recast as an “insufficiency of evidence” issue); see also Nelson v. Enid Med. Associates, Inc., 2016 OK 69, 376 P.3d 212, 217 (explaining the multifaceted standard of review).  
25. For the sake of brevity, the scope of this discussion is limited solely to individual proceedings before administrative agencies and does not concern rule-making.  
26. James J. Watson, “Necessity of Expert Evidence in Proceeding for Revocation or Suspension of License of Physician, Surgeon, or Dentist,” 74 A.L.R.4th 969 (West, Supp. 2014) (Originally published in 1989).  
27. See e.g. Jaffe v. State Dept. of Health, 135 Conn. 339, 64 A.2d 330 (Conn. 1949); Arlen v. Ohio State Medical Bd., 399 N.E.2d 1251 (Ohio 1980); Davidson v. State, 657 P.2d 810 (Wash. App. 1983); Weiss v. New Mexico Bd. of Dentistry, 110 N.M. 574, 798 P.2d 175 (N.M. 1990); Reaux v. Louisiana Bd. of Medical Examiners, 850 So. 2d 723 (La. Ct. App. 2003); Watkins v. North Carolina State Bd. of Dental Examiners, 593 S.E.2d 764 (N.C. 2004); Doe v. Virginia Bd. of Dentistry, 652 S.E.2d 794 (Va. App. 2007); Pastorek v. Louisiana State Bd. of Medical Examiners, 4 So. 3d 833 (La. Ct. App. 4th Cir. 2008); In re Miller, 989 A.2d 982 (Vt. 2009); Appeal of Boulard, 75 A.3d 1151 (N.H. 2013).  
28. Franz v. Bd. of Med. Quality Assurance, 642 P.2d 792 (1982).  
29. See generally n. 26, supra, at §4.  
30. See e.g. McKay v. State Bd. of Med. Examiners, 86 P.2d 232 (Colo. 1938) (reversing order for lack of expert evidence); see Smith v. Dept. of Registration & Ed., 106 N.E.2d 722 (Ill. 1952); N.J. St. Bd. of Optometrists v. Nemitz, 90 A.2d 740 (N.J. 1952); Hake v. Arkansas St. Med. Bd., 374 S.W.2d 173 (Ark. 1964); Dotson v. Tex. St. Bd. of Med. Examiners, 612 S.W.2d 921 (Tex. 1981); Arthurs v. Bd. of Registration in Medicine, 418 N.E.2d 1236 (Mass. 1981); Dailey v. N.C. St. Bd. of Dental Examiners, 309 S.E.2d 219 (N.C. 1983); Med. Licensing Bd. v. Ward, 449 N.E.2d 1129 (Ind. App. 1983); Re Appeal of Schramm, 414 N.W.2d 31 (S.D. 1987).  
31. See generally n. 26, supra, at §§5-8 (providing illustrative cases).  
32. David E. Bernstein, “The Unfinished Daubert Revolution,” 10 Engage: J. Federalist Soc’y Prac. Groups 35 (2009).  
33. Claire R. Kelly, “The Dangers of Daubert Creep in the Regulatory Realm,” 14 J.L. & Pol’y 165, 183 (2006).  
34. David G. Ries, Joseph R. Brendel, Jerri A. Ryan, “Daubert in Administrative Proceedings,” 31 E. Min. L. Found §1.08 (footnotes omitted) (available at 2010 WL 6440928).  
35. See Alan Charles Raul, Julie Zampa Dwyer, “‘Regulatory Daubert:’ A Proposal to Enhance Judicial Review of Agency Science by Incorporating Daubert Principles into Administrative Law, 66 Law & Contemp. Probs. 7 (2003); Charles D. Weller, David B. Graham, “New Approaches to Environmental Law and Agency Regulation: The Daubert Litigation Approach,” 30 Envtl. L. Rep. 10557 (July 2000) (“As a matter of policy and statutory interpretation, the Daubert reliability standard should apply to federal environmental agencies in rulemaking and adjudication.”); D. Hiep Truong, “Daubert and Judicial Review: How Does an Administrative Agency Distinguish Valid Science from Junk Science?,” 33 Akron L. Rev. 365 (2000) (“by using Daubert standards, the Court is not second-guessing the agency’s decision[-]making, but is simply ensuring … that the evidence relied upon by the agency meets the same threshold requirements that a federal litigant is already subjected to.”); Andrew Trask, “Daubert and the EPA: An Evidentiary Approach To Reviewing Agency Determinations of Risk,” 1997 U. Chi. Legal F. 569 (1997) (“Applying the Daubert gatekeeping function thereby allows courts to check the validity of the agency’s reasoning while maintaining the proper amount of deference to the agency’s rulemaking and adjudicative powers”).  
36. Emily Hammond Meazell, “Super Deference, the Science Ob-session, and Judicial Review as Translation of Agency Science,” 109 Mich. L. Rev. 733, 753-54 (2011).  
37. Regulatory Daubert, n. 35, supra, at 8.  
38. See Thomas O. McGarity, “On the Prospect of ‘Daubertizing’ Judicial Review of Risk Assessment, 66 Law & Contemp. Probs., 155, 156 (Autumn 2003) (“Assigning a Daubert-like gatekeeper role to courts engaged in judicial review of agency risk assessments is a profoundly bad idea.”); see also Thomas O. McGarity, Sidney A. Shapiro, “Unifying the Weight of the Evidence Approach,” 3 Wake Forest J.L. & Pol’y 65, 96 (2013).  
39. See 66 Law & Contemp. Probs., n. 38, supra, at 156 (“Judges’ limited competence in areas involving scientific data and analysis, complex modeling exercises, and large uncertainties is well recognized in administrative law and has been effectively demonstrated by the courts themselves in post-Daubert toxic torts opinions”).
40. See id. (“judicial adoption of regulatory Daubert will likely result in unconstrained regulatory policymaking by unaccountable and scientifically illiterate judges and in a much higher incidence of judicial remand of important regulations”).  
41. Daubert in Administrative Proceedings, n. 31, supra, at §1.08, (footnotes omitted).  
42. See J. Tavener Holland, “Regulatory Daubert: A Panacea for the Endangered Species Act’s “Best Available Science” Mandate?,” 39 McGeorge L. Rev. 299, 320-21 (2008) (“[W]hen a reviewing court increases its scrutiny of agencies’ science and policy decisions, judicial power vis-à-vis the coordinate branches of government is increased in a manner not implicated by the Daubert scheme in private litigation”).  
43. See e.g. Lobsters, Inc. v. Evans, 346 F. Supp. 2d 340, 344 (D. Mass. 2004) (“Daubert and its progeny interpret the Federal Rules of Evidence, however, and the federal rules of evidence do not apply to NOAA hearings.”); Stewart v. Potts, 996 F. Supp. 668, 678 n.8 (S.D. Tex. 1998) (“[Daubert] does not apply to APA review of agency action… .  The agency in this case is the factfinder, and the Court must give a high degree of deference to its expertise”).  
44. See Sierra Club v. Marita, 46 F.3d 606, 622 (7th Cir. 1995) (“While such a proposal might assure better documentation of an agency’s scientific decisions, we think that forcing an agency to make such a showing as a general rule is intrusive, undeferential, and not required”).  
45. See Claire R. Kelly, “The Dangers of Daubert Creep in the Regulatory Realm,” 14 J.L. & Pol’y 165, 187-89 (2006).  
46. Bouchikhi v. Holder, 676 F.3d 173, 180 (5th Cir. 2012).  
47. See 75 O.S. 2011, §310.  
48. Holder, n. 46, supra, at 180 (quotes omitted). Id. 
49. Mark C. Rutzick, “Junk Science and Climate Change: Thoughts from the Federalist Society’s 1997 Colloquium on ‘Junk Science, the Courts, and the Regulatory State,’” 11 Engage: J. Federalist Soc’y Prac. Groups 39 (2010) (internal quotes, augmentation and footnote omitted).  
50. 354 F.3d 652 (7th Cir. 2004).  
51. Id. at 659.
52. Id.  
53. Id.; see also Lobsters, Inc., n. 39, supra, at 344 (NOAA hearings); Libas, Ltd. v. U.S., 193 F.3d 1361, 1367 (Fed. Cir. 1999) (customs proceedings).
54. Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002) (noting
“[e]vidence is not ‘substantial’ if vital testimony has been conjured out of whole cloth.”).  
55. Elliott v. CFTC, 202 F.3d 926, 933 (7th Cir. 2000) (Commodity Futures Trading Commission proceedings) (citations, internal quotations omitted).  
56. See WorldNet Telecommunications, Inc. v. Telecommunications Regulatory Bd. of Puerto Rico, 707 F. Supp. 2d 163, 214 (D.P.R. 2009); Natl. Taxpayers Union v. U.S. Soc. Sec. Admin., 302 Fed. Appx. 115, 121-22 (3rd Cir. 2008) (unpublished); Pasha v. Gonzales, 433 F.3d 530, 535 (7th Cir. 2005); Lobsters, Inc., 346 F. Supp. 2d 340.
57. See Brault v. Soc. Sec. Admin., Commr., 683 F.3d 443, 449-50 (2nd Cir. 2012) (collecting cases and discussing the issue).  
58. See e.g. 59 O.S. §489, et seq. (regarding the Oklahoma Board of Medical Licensure and Supervision).
59. See n. 47, supra.  
60. See e.g. Hodges v. Sec’y of Dep’t of Health & Human Servs., 9 F.3d 958, 961-62 (Fed. Cir. 1993).  
61. See Regulatory Daubert, n. 42, supra, at 321.  
62. Pasky Pascual, et. al., “Making Method Visible: Improving the Quality of Science-Based Regulation,” 2 Mich. J. Envtl. & Admin. L. 429, 469 (2013) (footnote omitted).


ABOUT THE AUTHOR

Jason T. Seay is an attorney of Doerner, Saunders, Daniel & An-derson LLP in Oklahoma City. He maintains a broad civil litigation practice with a focus upon data security and privacy matters, healthcare law, regulatory compliance and administrative law, and coverage disputes. His practice includes indemnity disputes, complex litigation, appeals and election and campaign finance law compliance. Mr. Seay also assists with transactions unique to entrepreneurs, government contracting, construction contracting and internal and government investigations.


Originally published in the Oklahoma Bar Journal -- OBJ 88 pg. 2223 (Nov. 18, 2017)


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