Martha Reclamation Program: Dump and Run

Toxic Soup: Ashland's Radioactive Sludge Pits

Toxic Soup: Radiation at Blaine Elementary School

Thursday, January 7, 2010

Kentucky Courts as Scientific Gatekeepers

We can all breathe a lot easier knowing the great scientific minds of the Kentucky judicial system are on guard keeping the world safe from pseudoscientific mumbo-jumbo.  At least that’s what the Kentucky Appellate Court and Ashland’s attorneys would like us to believe.  We are skeptical.

The court in Kentucky likes to think of itself as a scientific “gatekeeper charged with keeping out unreliable pseudoscientific evidence” presented by expert witnesses.  They call it “narrowing the issues” using “orderly pre-trial proceedings.”  The court believes its role as gatekeeper is “especially sensitive in cases where the plaintiff claims that exposure to a toxic substance caused his injury, because a jury may blindly accept an expert’s opinion that conforms with their underlying fears of toxic substances without carefully understanding or examining the basis for that opinion.”

An example of this “gatekeeper” role occurred in the Cantrell v. Ashland trial.  The plaintiff’s expert witness testimony was excluded by the court because the witness used a linear model where large doses of radiation present a large risk relative to small doses, consistent with the dose modeling used by the US Environmental Protection Agency (EPA).  Ashland’s expert asserted that a threshold model applied, where radiation doses under a threshold value have no effect on human health.  The court excluded the plaintiff evidence completely, disregarding the EPA model.  This is wrong.  Since radiation dose risk assessment is NOT settled science how is one model valid and the other not per se?  The plaintiff model used by the EPA is valid for regulatory purposes and should have been admitted as reasonable evidence at trial.  It would be subject to cross-examination by Ashland’s attorneys and let the jury decide based on the merits of both models.  This is a jury of our peers, not children.  We believe the court inserted itself into the trial and affected the outcome by excluding this evidence since, without it, the plaintiffs had difficulty demonstrating the negative impact of Ashland’s radioactive waste on their properties.

The plaintiffs have an uphill fight on their hands.

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