95-3291, 00-1449 & 00-2788 Peabody Coal Co. v. McCandless

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“Since Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), courts have understood the importance of ensuring that supposedly scientific testimony meets minimum scientific standards of accuracy… Our dispute does not entail a contest of admissibility. But it makes little sense to use scientific standards in performing the gatekeeping function and then permit the dispute on the merits to be resolved by arbitrary considerations, such as who wore the latex gloves and or had superior credentials. Daubert does not apply directly in black lung cases, because it is based on Fed. R. Evid. 702, which agencies need not follow. Agencies relax the rules of evidence because they believe that they have the skill needed to handle evidence that might mislead a jury. See Richardson v. Perales, 402 U.S. 389 (1971). They have a corresponding obligation to use that skill when evaluating technical evidence. Neither the alj nor the brb did this, however; both avoided the medical dispute by adopting a non-medical rule that physicians who work in white smocks are more reliable than physicians who do their work in the laboratory. As that preference has no apparent medical basis- -and as it contradicts many decisions requiring agencies to resolve scientific controversies on the merits rather than through legal legerdemain – the result cannot stand. See, e.g., Railey, 972 F.2d at 182; Stephens v. Heckler, 766 F.2d 284 (7th Cir. 1985). An agency must act like an expert if it expects the judiciary to treat it as one. See Chicago Board of Trade v. SEC, 187 F.3d 713 (7th Cir. 1999); Bechtel v. FCC, 10 F.3d 875 (D.C. Cir. 1993). Railey is directly on point; it holds that the alj may not automatically credit the conclusions of an autopsy prosector but must supply a valid rationale for adopting them. Here the only rationale was – that Bockelman was the prosector. That’s just a restatement of the rule that Railey disapproved.”

Vacated and remanded.

Petitions to Review Orders of the Benefits Review Board, Department of Labor, Easterbrook, J.