The theoretical tools available to assist scientists in discovering the adverse effects of toxicants in humans are one thing. Their actual use with what is not known about substances, practical difficulties in using them, the time it takes to conduct studies, the rareness of background diseases at issue, and the adventitious exposure circumstances of torts are quite another. These and other limitations need to be appreciated in order to better understand how the utilization of science in the tort law affects the institution.

The courts in the Daubert litigation might not have had a realistic understanding of the kinds and quality of evidence that could be available in toxic tort litigation. The evidence in the original Daubert decision was particularly good and the Bendectin litigation in general had an unusual amount of high quality, readily available direct human evidence about the product. Indeed, it may be one of the “best studied substances” ever.

Such excellent evidence, however, can result in bad law. How could this be, since the common aphorism is that “bad evidence can make bad law”? Moreover, in cases subsequent to Daubert courts might mistakenly believe that nearly ideal evidence is always available or easily obtainable. If they do, they are likely to demand it in other cases. Suppose litigants lack similarly good evidence in other cases. Will courts think that the lawyers who file the case or the scientists who are prepared to testify in it have not done their homework?