CAST Signs Agreement with AAAS on Collaboration of Court Appointed Scientific Experts (CASE)

Bernalyn McGaughey

Edited from an announcement by Richard Stuckey, Executive Director of CAST

The Council for Agricultural Science and Technology (CAST) has been invited and has accepted the invitation of the American Association for the Advancement of Science (AAAS) to become a partner in their Court Appointed Scientific Experts (CASE) project. The National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine are the other partners with AAAS. The ABA Section of Environment, Energy, and Resources’ Special Committee on Agricultural Management is a board member of CAST and has cooperated with them in various roundtable meetings on topics important to emerging science and policy.

In many ways, CASE mirrors what CAST already does when they testify before Congress or nominate their members or members of their member societies to serve on Executive Branch advisory committees. CASE extends this public service outreach to the judicial branch of government. CASE offers a unique opportunity for the scientific and engineering communities to make a difference, not only in the administration of justice, but also in how the public views the use of science and scientists in the courtroom. A federal judge may have put it best in referring to CASE when he stated, "A judge’s expert gives a more balanced view [than parties’ experts] of the case, with not as much advocacy. This is a more public-service driven model of what experts ought to be doing in federal court."

By virtue of this Order, CAST will be considered to be acting at the request of the Court.
While CAST had some concern about the liability this may bring to them or to members, that concern has been addressed. There are several layers of protection. First, due to the expert acting on behalf of the court, the threat is very low. As an additional layer of protection, AAAS is asking judges who call on them for help to issue an Order charging AAAS with making a good faith effort to identify qualified experts and to seek the assistance of appropriate individuals and organizations in this effort. By virtue of this Order, CAST will be considered to be acting at the request of the Court. Thus CAST and AAAS are protected from liability in the same manner as judges’ clerks, special masters, and others working for the Court. As the third layer of protection, AAAS has agreed to assume legal responsibility and costs, should the above two protections fail.

CAST had significant comment in this area over the last several years. CAST published an issue paper by Dr. Jack Francis, entitled "Admissible Scientific Evidence in Court," 1993. In August 1999, CAST President, Dr. David Lineback, attended an AAAS meeting on this subject. In late December 2000, AAAS extended the invitation to CAST. The CAST Executive Committee gave their approval at their January 17, 2001, meeting. Executive Vice President Dick Stuckey met with AAAS Project Manager Deborah Runkle on January 30 to formalize the arrangements and to sign the agreement.

Because this is a new project, we do not know how often CAST may be called upon to assist in identifying experts. Certainly, they remain as a resource to ABA for finding experts in various fields of endeavor since their membership is composed of most of the scientific societies that deal with agricultural issues.

In the instance of CASE, the court appointed expert selected may serve one or more functions during the course of litigation, such as tutoring a judge, testifying as a witness, or assisting the judge to determine whether proffered evidence meets scientific criteria for admission. AAAS will provide persons accepting appointment by the court an Experts’ handbook that will include information intended to prepare them for what they will likely encounter upon entering the judicial process. Nominations will be asked to complete a brief Conflict of Interest form. The time of experts to review court cases and other expenses that are associated with the judge’s request will be reimbursed.

The CASE project has received positive responses from the Federal Judiciary. Stephen Breyer, associate justice of the Supreme Court, supported and endorsed this effort, first in a Supreme Court opinion, and then in a speech delivered at the 1998 AAAS Annual Meeting and a subsequent article published in Science.