Jul 15, 2022

The Gatekeeper

This week, Reporter Peter Smith and Senior Producer Matt Kielty tell the story of the U.S. Supreme Court decision that set the standard for scientific expertise in a courtroom, i.e., whether an expert can testify in a lawsuit. They also tell the story of the Daubert family — yes, the Dauberts of “Daubert v Merrell Dow” — whose win before the nine justices translated into a deeper loss.

Special thanks to Leah Litman, Rachel Rebouche, Jennifer Mnookin, David Savitz, Brooke Borel, and Tom Zeller Jr.

Credits: Reporting by Peter Andrey Smith. Produced by Matt Kielty. Reporting and production assistance from Sarah Qari. Fact-checking by Natalie A. Middleton. Editing by Pat Walters. Sound Design by Matt Kielty. Mixing help from Arianne Wack.

Citations: If you're interested in reading more from Peter Smith, check out his work over at Undark.org

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LULU MILLER: All right. Three, two, one.


LULU: Hey, I'm Lulu Miller.

LATIF: I'm Latif Nasser.

LULU: This is Radiolab.

LATIF: And today ...

LULU: Il a une histoire ...

LATIF: ... we have a story ...

PETER: Je m'appelle Pierre.

LULU: Oh, oui, oui, oui.

LATIF: From science journalist Peter Smith.

PETER: Okay. I'm gonna—I'm gonna switch gears pretty dramatically here, because I want to start with the big case before the Supreme Court this last session.

[ARCHIVE CLIP, Supreme Court: We will hear argument this morning in case 1913-92.]

PETER: The abortion case.

[ARCHIVE CLIP, Supreme Court: Dobbs v Jackson Women's Health Organization.]

PETER: Because something happened during the arguments that I think most people probably didn't notice. Basically ...

[ARCHIVE CLIP, Supreme Court: I would—I would say ...]

PETER: The lawyer for Mississippi, he's arguing against abortion. And of course, the Supreme Court has already decided the issue of abortion in two previous cases, so they ...

[ARCHIVE CLIP, Supreme Court: What hasn't been at issue ...]

PETER: ... they interrupt him. And say what's different now?


PETER: And he says ...

[ARCHIVE CLIP, Supreme Court: Justice Sotomayor, I think ...]

PETER: ... "The science has really changed."

[ARCHIVE CLIP, Supreme Court: ... the last 30 years of advancements in medicine, science, all of those things.]

[ARCHIVE CLIP, Justice Sotomayor: What are the advancements in medicine?]

[ARCHIVE CLIP, Supreme Court: I think it's an advancement in knowledge and concern about such things as fetal pain, what we know the child is doing and looks like, and is fully human at a very early—I'm sorry.]

PETER: And Sotomayor, she says this issue of fetal pain ...

[ARCHIVE CLIP, Justice Sotomayor: It's a gross minority of doctors believe fetal pain exists before 24, 25 weeks.]

PETER: Like, it would never make it into the courtroom. And the reason, she says, is because of a single word.

[ARCHIVE CLIP, Justice Sotomayor: Daubert.]

PETER: Daubert. Or as it's often pronounced, "Daubert."

LATIF: Daubert.

PETER: Daubert.

PETER: By saying this word, she's essentially pulling down the gate that stands between law and science. Now Daubert would play only a tiny, tiny role in this Supreme Court case, but I wanted to start there because Daubert is this thing that sort of goes unnoticed, but is actually one of the most important parts of shaping what happens inside of a courtroom. And I've actually spent the last eight years reporting on Daubert and, you know, it shows up everywhere.

[ARCHIVE CLIP, court: All right. This is the case of State against Kyle Rittenhouse, and ...]

PETER: It played a big part in the Kyle Rittenhouse trial, the trial in the murder of George Floyd.

[ARCHIVE CLIP, court: I'm gonna talk about Daubert.]

PETER: Lawsuits involving ...

[ARCHIVE CLIP, court: Monsanto's failure to warn ...]

PETER: Monsanto, Deepwater Horizon.

[NEWS CLIP: They alleged ...]

PETER: Johnson & Johnson.

[NEWS CLIP: Johnson & Johnson's talcum powder products ...]

PETER: It's just like all over. There have been so many analyses written about it. It's been written up in, like, scientific journals. It's been written up in law reviews. Because any time you want to have an expert testify ...

[ARCHIVE CLIP, court: You're the chief Hennepin County Medical Examiner?]

PETER: ... whether it's about fetal pain ...

[ARCHIVE CLIP, court: That’s correct.]

PETER: Or it's about ...

[ARCHIVE CLIP, court: Correlation between domestic abuse ...]

PETER: ... human psychology ...

[ARCHIVE CLIP, court: ... heavy alcohol abuse and cognitive disorders.]

PETER: ... use of force or ...

[ARCHIVE CLIP, court: Cardiac arrhythmias, sudden cardiac deaths.]

PETER: ... cause of death ...

[ARCHIVE CLIP, court: This is not that kind of death.]

PETER: Whatever expert knowledge they're trying to bring to the court, that person has to pass what's known as the Daubert Standard. And a lot of people I talked to said Daubert can sort of make or break your case, because Daubert essentially decides who gets to come into the courtroom and explain how the world works.

LULU: Hmm.

PETER: That make sense?

LULU: It does.

LATIF: Yeah.

LULU: So ...

LATIF: But it makes me want to know now what is the standard?

LULU: Yeah, what is the standard and what is a Daubert?

PETER: Yeah, exactly. I was wondering the same thing. And when I started looking into it, I discovered that, at the heart of the Daubert Standard, there is this family—the Daubert family. And one of the things that jumped out to me is that even though their name is everywhere, the story of the family is basically nowhere.

JOYCE DAUBERT: Good morning, Peter.

PETER: Hello.

JOYCE DAUBERT: How are you doing?

PETER: Nice to meet you.

JOYCE DAUBERT: Come in, please. [dog barks] Sorry, that's our little puppy.

PETER: Okay. Good morning.

PETER: So the Dauberts are Bill and Joyce.

PETER: What's the dog's name?

JOYCE DAUBERT: His name is Rocco.

PETER: And Rocco.

JOYCE DAUBERT: He's a Maltese and so we needed a little tough name for him because he's so tiny. Settle. Settle.

PETER: So the Dauberts live north of San Diego, in sort of a high desert area.

BILL DAUBERT: Sorry about the barking.

PETER: And so Bill ...

BILL DAUBERT: As you might be able to tell, I'm not a talker.

PETER: Bill really didn't want to revisit this whole saga.

BILL DAUBERT: Joyce got that gene. I didn't get it.

PETER: So I mostly interviewed Joyce, who's in her 70s, has a big full head of curly white hair.

[dog barks]

PETER: Yeah. And so then she took me into a back room of their house, which is sort of this office space that they have away from the dog. And pretty quickly, she started telling me about she and Bill.

PETER: Maybe we can back up there. It's like, so how did you guys meet and where?

JOYCE DAUBERT: We met in college.

PETER: Where was college?

JOYCE DAUBERT: We went to Hiram College. I'm sure you've heard of it. It was the Harvard of the Midwest. [laughs] I'm teasing. It was about a thousand kids, and it was [dog barks]—there's Rocco talking to you. And ...

PETER: Anyway, it's the early '70s. Ohio.

JOYCE DAUBERT: I graduated, I started teaching.

PETER: She's a high school Spanish teacher. Bill went off and served in Vietnam.

JOYCE DAUBERT: But he got an R&R.

PETER: A summer off in Hawaii.

JOYCE DAUBERT: And I joined him there and we got married.

PETER: Two years later, Bill came back to Ohio. Joyce was still teaching, when all of a sudden ...

JOYCE DAUBERT: I got really sick.

PETER: Like, constantly sick. Just projectile vomiting. She didn't know why. She thought she had a stomach flu.

JOYCE DAUBERT: So anyway, I went to the doctor and he said, "Well, you might be pregnant." And I said, "I assure you I'm not pregnant." And he said, "Well I can give you this pill. It doesn't work for everybody, but I know it's safe because they give it to pregnant women."

PETER: For morning sickness. So she tries this drug.

JOYCE DAUBERT: It didn't help a bit, so I didn't take any more.

PETER: But she was still nauseous all the time.

JOYCE DAUBERT: Couldn't keep anything down, and so I thought, "Well, I'm gonna die." So anyway, I went back to the—I was so sick.

PETER: Goes to the doctor and the doctor says, "Okay, we gotta take a pregnancy test."

JOYCE DAUBERT: They drew blood, as I remember. So it took a few days, you know, to find out.

PETER: But they get the results back.

JOYCE DAUBERT: And it was positive.

PETER: And Joyce told me, you know that question that you ask a kid?

JOYCE DAUBERT: What do you want to be when you grow up?

PETER: She said she remembers when she was, like, eight or nine, somebody asked her that.

JOYCE DAUBERT: And I don't remember what I answered. I know, you know, what I wanted to say. I wanted to say, "I want to be a mother." I always felt like I'd be good at it, and it would be a wonderful way to live my life, to have children and raise children.

PETER: The nausea eventually went away, and Joyce and Bill picked out names.

JOYCE DAUBERT: Yeah, Jessica.

PETER: For a girl. And for a boy ...


PETER: Also around this time, they moved out to California.

JOYCE DAUBERT: Started our life here.

PETER: And then one night in July of 1973, contractions.

JOYCE DAUBERT: We took off for the hospital.

PETER: Nurses greet her out front.

JOYCE DAUBERT: And they come out with a wheelchair.

PETER: Eventually, they wheeled her into the delivery room. Bright lights.

JOYCE DAUBERT: Bill's at my head.

PETER: Gowned up. There's doctors and nurses swirling all around ...

JOYCE DAUBERT: ... monitoring everything.

PETER: People are telling her to breathe.

JOYCE DAUBERT: Contractions are coming pretty quickly.

PETER: And finally someone says ...


PETER: And then suddenly ...


PETER: And someone says "It's a boy." And then Joyce says everything got, like, dead quiet.

JOYCE DAUBERT: For a long time. And nobody's really moving or anything.

PETER: One of the doctors was holding her baby.

JOYCE DAUBERT: And I could see his right foot. I said, you know, "What's the matter with his—what's the matter with his foot? Is something wrong with his foot?"

PETER: Looks like there's something missing.

JOYCE DAUBERT: "What happened to his foot?" And then somebody said, "Oh, yes. And his arm, too." And I looked at his arm and I thought, "Oh!"

PETER: It was, like, twisted up almost like a little chicken wing. And there were only two fingers.

JOYCE DAUBERT: And nobody knew what to tell me. And, you know ...

PETER: So the doctors didn't say anything?

JOYCE DAUBERT: They didn't—nobody knew what to say, you know? Everybody's just kind of like screwing around. They want to make sure that he's gonna, you know, survive. They don't know how devastating the birth defects are. But they took him to the nursery. They started doing a lot of tests right away. So I didn't know if he was alive or—it was horrible. It was terrible. And I will tell you, the only thing I really remember about, you know, the hospital room was I got up out of the bed and walked to the window to see if I was up high enough if I jumped out, if I could kill myself.

PETER: And what were you thinking in that moment?

JOYCE DAUBERT: [sighs] Well, I just kind of felt like if he's not gonna make it, if I'm not gonna go home with a baby, maybe I just shouldn't go home.

PETER: But while she's standing there looking out the window, Joyce has another thought.

JOYCE DAUBERT: If this baby does live, he's gonna need the best mother in the world, and I better just step up and make it happen.

PETER: A few days later, Joyce and Bill leave the hospital with their newborn son.

JASON DAUBERT: Well, my girlfriend's an urgent care doctor.

PETER: Jason.


PETER: So this is where you live?

JASON DAUBERT: Yep. Yeah. Pretty lucky, honestly.

PETER: After Jason left the hospital ...

JOYCE DAUBERT: He had his first surgery at six months.

PETER: He had a series of operations.

JOYCE DAUBERT: So his arm could function as an assist, which is how he uses it.

JASON DAUBERT: Do you wanna have a seat? Need anything to drink or anything?

PETER: Jason is now 49 years old. He has a daughter. And he lives about 45 minutes from his parents' place.

JASON DAUBERT: Yep. Yeah. Born here, a couple of years in Ohio, and a couple other places I think as we were growing up.

PETER: And so when you were living in Ohio, I mean, do you remember that at all?

JASON DAUBERT: Super vaguely. I don't remember lots about my childhood. It was pretty rough.

PETER: So when Jason was born, the really big physical difference was his right arm. That arm is much smaller than his left arm, and on his right hand, he only has a thumb and an index finger.

JASON DAUBERT: As a kid, I was painfully aware of how different I was.

PETER: Just a reminder, this is the late '70s.


PETER: There really wasn't a blueprint for the Dauberts.

JOYCE DAUBERT: You know, we were making fresh tracks in the snow.

JASON DAUBERT: Okay, here's a really good example, right? As a child, learning how to tie your shoes, it's a milestone, right?

JOYCE DAUBERT: And when it was time to teach Jason how to do all of that ...

JASON DAUBERT: ... that took a lot longer for me.

JOYCE DAUBERT: It was really a knife in your heart to watch him struggle, but I didn't want him to feel sorry for himself.

JASON DAUBERT: So she would tell me pretty frequently kind of whenever I needed to hear it, like ...

JOYCE DAUBERT: "If I could give you my right arm, I would do it in a heartbeat. But that's not gonna work. There's nothing we can do about it. So how are you gonna, you know, move through the universe? How are you gonna live your life?"

PETER: And so when it came to something like tying his shoes ...

JOYCE DAUBERT: He'd bend over his feet, you know?

PETER: Hold the lace with his mouth, and use his left hand to tie his shoe.

JASON DAUBERT: Or I couldn't cut the nails of my left hand. So then one day, I just happened to be fiddling with a Swiss army knife or something. I realized the way the Swiss army knife works and the little scissors and that, I can actually make that work with my hand and "Oh my God, Mom. I can cut my own fingernails now." It sounds stupid, but it's like these little things that are—you know, that you just kind of have to come up with.

PETER: But I think the thing for both of them, the thing that was hardest was dealing with other people.


PETER: Like when it was time for Jason to go to kindergarten ...

JOYCE DAUBERT: They wouldn't enroll him in the public school. They said he had to go to the Sunshine School.

PETER: The special needs school.

JASON DAUBERT: Because their assumption was I was probably mentally disabled as well as physically disabled.

JOYCE DAUBERT: So I went to the Catholic school, and said to Sister Mary Francis or whoever it was ...

PETER: "We're not Catholic, but we really want Jason to get a typical education."

JOYCE DAUBERT: And the sister said, "Oh, we'd love to have a little crippled boy in school." But then she called me up and told me that they couldn't enroll him because the other parents didn't want their kids to go to school with Jason because he was deformed. They didn't want their kids to have to look at that.

PETER: Eventually, Jason got into the public school, and it was there he says he got bullied.

JASON DAUBERT: Getting the living crap beat out of me in, like, elementary school and stuff.

PETER: And sometimes he'd come home and tell Joyce some kid told him ...

JOYCE DAUBERT: "My mother said your mother took drugs when she was pregnant, and that's why you only have two fingers." And I'd say, "And what did you say, Jason?" And I'd always get that, "Nuh-uh!" [laughs]

PETER: But Joyce said when Jason was little ...

JOYCE DAUBERT: You know, it came up.

PETER: Jason often asked the question: "Why?"

JOYCE DAUBERT: "Why am I different?" And I would say to him, "Honey, everybody's different. Sometimes it's on the outside, sometimes it's on the inside. And it's easy for people to see how you're different, isn't it? Yeah, it is. Okay." So that's kind of how we dealt with those things.

PETER: And Jason said as he got older, the question sort of fell away. Of course, you know, what happened to Jason could have been some random genetic mutation. But for Joyce ...

JOYCE DAUBERT: I—I wanted to know.

PETER: She felt responsible.

JOYCE DAUBERT: You know, it was my fault. It was my pregnancy, and something went wrong. I didn't do it right. Something went wrong.

PETER: She and Bill had genetic tests done.

JOYCE DAUBERT: From everything they could tell ...

PETER: ... they ran basically no higher risk than any other couple.

JOYCE DAUBERT: I was careful about eating a healthy diet and, you know, no alcohol.

PETER: I was looking through some of the medical records, and they say there's no exposure to toxins or chemicals.

JOYCE DAUBERT: I worked at having a healthy baby. I worked at it. I knew what I was supposed to do and I did it.

PETER: And so when it came to Jason's birth defects ...

JOYCE DAUBERT: We don't—you know—we don't know. We don't know what happened.

PETER: But I guess I was also trying to figure out when did you—when did you first, like, put it together?

JOYCE DAUBERT: When I first went to school, when I first went back to teaching.

PETER: This is 1983. Joyce is back teaching Spanish. And by this point, there's Jason ...

JOYCE DAUBERT: ... and Jessica.

PETER: His little sister. They're 10 and 9 years old.

JOYCE DAUBERT: They would walk to school together in the morning, and ...

PETER: After school they would all walk home.

JOYCE DAUBERT: And one of our first routines was when we hit the house, you know, we'd get the paper out of the driveway and come in.

PETER: Make some snacks inside.

JOYCE DAUBERT: And then I'd sit down on the couch, one kid here, one kid here, and I've got the paper.

PETER: They would read the paper.

LULU: [laughs] That's so sweet and nerdy!

PETER: Yeah, they would all sit down and read the comics together.

JOYCE DAUBERT: The kids loved that.

PETER: So one day Joyce is flipping through the paper ...

JOYCE DAUBERT: To get to the comics.

PETER: ... and then she saw a photo of a little girl.

JOYCE DAUBERT: With an arm exactly like Jason's. And Jason looks at it and Jessica looks at it and I'm looking at it, and Jason just gets up and goes to the drawer where the scissors are and brings me the scissors so I could cut out the article.

PETER: And the article is about this little girl and her family who had just won a settlement against Merrell Dow, which was a pharmaceutical company that made a drug called Bendectin, a drug for morning sickness.

JOYCE DAUBERT: I got really sick.

PETER: And Joyce was like, "Oh, the doctor!"

JOYCE DAUBERT: "I can give you this pill. It's called Bendectin."

PETER: "That's what he gave me."

JOYCE DAUBERT: "And it doesn't work for everybody."

PETER: And it was at that moment Joyce was like, "Maybe I have the answer."

LULU: And her quest to find out if she did would change how we judge what's true in this country.

LATIF: Stay with us.




LULU: Lulu.

LATIF: Latif.

LULU: Radiolab. Back with Peter "Pierre" Smith.

PETER: Should I just do a quick recap?

LATIF: Yeah. Remind me where we left off, yeah.

LULU: Yeah, where we were. Yeah.

PETER: Yeah, so the summer of 1983, Joyce saw a newspaper article with a photo of a girl whose arm looked remarkably similar to her son's.

LATIF: Right.

JOYCE DAUBERT: But I, you know, put it aside because, you know, I had dinner to make, we had homework to do. You know, all that kind of stuff.

PETER: But pretty quickly thereafter, she decides to call directory assistance, get in touch with this family.

JOYCE DAUBERT: I called ...

PETER: Talks to the family. Gets their lawyer's name.

JOYCE DAUBERT: And I got his phone number, and I called him the next day.

[phone rings]

RECEPTIONIST: Paulson & Nace. How may I direct your call?

PETER: Yeah, I just received a call from Barry. My name is Peter Smith.

RECEPTIONIST: Okay, one moment, please.

[hold music]

PETER: His name is Barry Nace.


PETER: We're connected again.


PETER: Okay, great. Thanks for the call.

BARRY NACE: Yeah. I'll just be—I'll put you on speakerphone because I wear hearing aids.

PETER: Oh, okay.

BARRY NACE: It's much easier for me—there's nobody else here.

PETER: Okay.

PETER: So Barry had a law office in DC.

BARRY NACE: And my background is chemistry and biology.

PETER: He was doing medical malpractice. And one day, this little girl's family came to him with a problem about Bendectin.

BARRY NACE: I didn't know much about Bendectin, but I learned a few things. I tried the case and I won.

PETER: Was he surprised to hear from you?

JOYCE DAUBERT: Yes. And he was very supportive.

PETER: And Barry basically had two questions for Joyce.

BARRY NACE: Was there evidence of the pharmaceutical product being taken, and when was it taken?

JOYCE DAUBERT: He said it causes birth defects if you take it early on in the pregnancy. And I said, "Oh, hey!" And I asked him. I said, "Would you be our attorney, too?" And he said, "Yeah, you know, we'll have to figure out how to do it because we're in a different district and, you know, all that kind of stuff."

PETER: But the case wasn't hers necessarily.

JASON DAUBERT: Right. So ...

PETER: It was ultimately Jason's case to be made, but he was a minor. He was 10.

JASON DAUBERT: But I do remember my mom asking basically and like, "Hey, this is gonna be a, you know, probably not an easy thing to do, but if you want to, we can do it."

PETER: Why did you want to do it? Did you have a ...?

JASON DAUBERT: Yeah. Like, the—if I remember right, my mom basically pointed out that, like, hey, if this is true and there's a problem with this drug, we don't want other people taking it. So to me it felt like a really easy decision.

JOYCE DAUBERT: And that's how everything started.

PETER: So when you looked at the case you said it seems like another sort of slam-dunk case, or ...?

BARRY NACE: Yeah, right. Slam dunk. Yeah. [laughs]

PETER: Let's not even read between the lines. It wasn't a slam dunk.


PETER: Even with the case he won. With any case like this, the hardest thing is ...

BARRY NACE: How do we show causation?

PETER: And so ...

JOYCE DAUBERT: Trying to figure out exactly what my conception date was.

PETER: ... Barry had this strategy.

JOYCE DAUBERT: See, here's the prescription.

PETER: Prove the drug was taken ...

JOYCE DAUBERT: Wait for it for genetic testing.

PETER: Eliminate any other possible cause ...

JOYCE DAUBERT: All medical records.

PETER: And use whatever science you have to make the case to a jury. And probably the strongest evidence they had were these animal studies.

STUART NEWMAN: Well, I had read a story in Mother Jones.


STUART NEWMAN: Which was about the whole issue of Bendectin.

PETER: Which actually brings us to this researcher, this guy Stuart Newman.

STUART NEWMAN: So I was at New York Medical College, where I still am.

PETER: He'd read this article about Bendectin.

STUART NEWMAN: It was said to affect the limbs, and I was a limb researcher, a limb development researcher. I was working experimentally by taking cells from chicken embryos, and seeing how the cells interacted with each other to form the limb bones.

PETER: Back then, you couldn't do it on human embryos.



STUART NEWMAN: No, not at all.

PETER: And so Stuart was saying, like, basically at this early stage of cellular development, like, what happens in a chicken when its limb forms is essentially the same thing that happens in a human.

LATIF: Oh, interesting.

PETER: And so one day he gets a call from a lawyer who asks him if he can look into Bendectin. And he said, "Sure."

STUART NEWMAN: So I looked into the literature to see whether it had been used in the kinds of experiments that I do. And in fact, there were a couple of papers.

PETER: One of them was from the NIH, the National Institutes of Health.

STUART NEWMAN: Using chicken cells.

PETER: Where they took these chicken cells, put them in a petri dish, added the drug ...

STUART NEWMAN: And they found that the drug impaired differentiation and impaired growth.

PETER: Basically, the cartilage isn't forming, there's bones missing, things aren't separating properly.

STUART NEWMAN: It was harming the limb cells.

LATIF: And so he thought if they could do it in a chicken, they could do it in a human?


PETER: Exactly.

STUART NEWMAN: It could. This drug is capable of impairing the development of the limb.

PETER: He eventually becomes an expert witness in these cases, the Bendectin cases, including Joyce's. So he was submitting depositions, and he was sort of on call for the trial.

LATIF: Okay, so they do get—it sounds like it's a—like, it's a pretty solid case, in a way.

PETER: Yeah.

JOYCE DAUBERT: They had a lot of good evidence.

PETER: They had spent, like, six years putting together all this stuff, like animal studies ...

JOYCE DAUBERT: The prescriptions.

PETER: The genetic tests.

JOYCE DAUBERT: They felt that the evidence was real good.

PETER: But I think that the lawyers sort of like reassured Joyce that they were very, you know ...

JOYCE DAUBERT: Kind of what they said was it was very sexy. A very sexy case. And they said, "You're gonna be the best witness in the world."

PETER: So, like, after all these years, they finally get a trial date. It's set. And right before they're scheduled to go to trial, she gets a call from her attorney. And Joyce is expecting, like, a pep talk or something, and her lawyer says basically, the judge has thrown out our case.

LATIF: What?

PETER: Not going to trial at all.

JOYCE DAUBERT: It was shocking. Everybody was very shocked.

PETER: You really wanted to get into court and testify before a jury.


PETER: And so ...

JOYCE DAUBERT: Absolutely. I very much wanted that. You know, I wanted to have my day in court.

LATIF: So they had, like—it's like they had the scientific studies, they had the precedent. They had, like, heart-wrenching testimony. Like, it sounds like they have everything on their side.

PETER: Yeah. But basically, the judge had received a motion to toss out the case from the attorneys for Merrell Dow, one of whom was ...


PETER: Pam Yates.

PAMELA YATES: I was a one-year lawyer, and I had been put in charge of claims of birth defects due to Bendectin.

PETER: So just like Barry, Pam went out looking for research to build her case. And pretty quickly, she came across ...

PAMELA YATES: ... the animal studies.

PETER: They're compelling, but Pam thought she had a better argument.

PAMELA YATES: Which is: when you're trying to establish causation in a human, you go to the human data.

PETER: It turns out there was some human data starting to emerge.

PAMELA YATES: By Dr. Steven Lamm.

STEVEN LAMM: I was an epidemiologist.

PETER: This is Steven Lamm.

STEVEN LAMM: I had been at CDC. The WHO. Various regulatory agencies.

PETER: He'd been hired by a judge in Ohio to look at Bendectin as sort of an independent expert.


PETER: So first step ...

STEVEN LAMM: First step is to collect all the relevant scientific studies.

PETER: He ends up with about 30 different studies.


PETER: And, like, how long does this process take? A couple days?

STEVEN LAMM: A large number of months.

PETER: Okay.

PETER: Maybe about six months. And then he started pulling out ...

STEVEN LAMM: Had Bendectin.

PETER: ... all the numbers ...

STEVEN LAMM: Did not have Bendectin.

PETER: ... from every study.

STEVEN LAMM: What birth defects were identified in the child?

PETER: And so what he ended up with was the largest collection of human data that had been amassed on Bendectin. It looked at 13,000 women who had taken the drug compared with tens of thousands who hadn't.

PAMELA YATES: And so what you then do is you look at the effects and the risk in both those groups and you compare them.

PETER: And so what he found was in the group of women who hadn't taken Bendectin, you had a rate of children born with birth defects ...

PAMELA YATES: Of about three per hundred.

PETER: Which is the average background rate. And then in the group of women who had taken Bendectin, you also had a rate of about three per hundred.

LULU: Hmm.

PETER: And so the question was: does Bendectin actually carry a higher risk for birth defects?

STEVEN LAMM: The answer was no.

PETER: So it's a pretty definitive no as well.


PETER: Is what you're saying.


PETER: And so when it came to Jason's birth defects ...

PAMELA YATES: How can you say it's the drug?

PETER: Right before the trial, Pam submitted this motion to the judge.

PAMELA YATES: We have all this science.

PETER: We have the science on our side.

PAMELA YATES: They don't have anything unless they rely on nonhuman data.

PETER: And the judge agreed. He tossed out the case entirely.

LATIF: But can a judge even do that? Like, decide which expert out-experts the other expert?

PETER: Yeah, that was—that was a real question. Like, do judges even have this power?

JOYCE DAUBERT: Well, you know, like I would ask, "Can we appeal this?"

PETER: They appealed to the Ninth Circuit, and the Ninth Circuit said, "Yes, a judge can do this. And they have this power, because of this rule ..."

JOYCE DAUBERT: Called the Frye Rule.

PETER: Frye.


PETER: This rule from the 1920s that nobody had used until around the time of the Daubert case when all these other batshit crazy things started happening. When there was this supposed epidemic of litigiousness. And so now at this point in the story, we're entering the quote-unquote "Litigation boom." And to guide us through ...

MIKE GOTTESMAN: We're good now?

PETER: I think so.


PETER: We're gonna bring in this guy.

MIKE GOTTESMAN: Michael Gottesman. I prefer Mike.

PETER: Mike's a professor at Georgetown.

MIKE GOTTESMAN: Georgetown University Law Center.

PETER: And so I talked to Mike about the role of experts and the role of expert testimony. And so obviously, like, the Dauberts' experts had been kept out of court, off the witness stand, but Mike said if you look back, like, just immediately before this case, before the 1980s ...

MIKE GOTTESMAN: There was no idea that you could keep, in a civil case, an expert off the witness stand.

PETER: In fact, there were rules about this passed by Congress ...

[ARCHIVE CLIP: An overview of the federal rules of evidence.]

PETER: ... called the federal rules of evidence.

[ARCHIVE CLIP: Rule 702 defines an expert rather broadly.]

PETER: It was basically: let the experts testify. If there's an expert, let him into the court.

BARRY NACE: And we rely on the jury to separate the wheat from the chaff.

PETER: But Mike said once you got to the 1980s, things started to change.

MIKE GOTTESMAN: When two major areas of law began to blossom.

[NEWS CLIP: Vietnam veterans who say that they were injured by Agent Orange ...]

PETER: One was lawsuits about drugs ...

[NEWS CLIP: Ethylene dibromide ...]

PETER: ... chemicals ...

[NEWS CLIP: A very toxic pesticide.]


[NEWS CLIP: The cause of cancer, liver disease and birth defects.]

PETER: And the other ...

[NEWS CLIP: The tanker, the Exxon Valdez.]

PETER: ... was environmental lawsuits.

[NEWS CLIP: The suit says these chemicals have already damaged wildlife.]

PETER: And Mike says it was around this time ...

MIKE GOTTESMAN: Where expert testimony became absolutely crucial.

PETER: And what started to happen is juries ...

[NEWS CLIP: ... struck a blow for veterans ... ]

PETER: ... started to give out ...

[ARCHIVE CLIP: ... for $1.9 billion.]

PETER: ... big settlements to plaintiffs. And by the time you get to the Dauberts' case in the late 1980s, early '90s, there was this sort of conservative hand-wringing about ...

[NEWS CLIP: Junk science.]

[NEWS CLIP: This junk science.]

PETER: ... junk science.

[NEWS CLIP: Using junk science.]

PETER: Cases where individual people would sue companies, and bring in these experts ...

MIKE GOTTESMAN: The so-called "junk scientists" that were just basically guns for hire.

PETER: Sometimes they called them "saxophones." because they were paid to play whatever tune you want them to play.


LULU: And play it loud.

PETER: I think there was, like, a kernel of truth to this. The two examples that sort of come to my mind is one where a woman who said she had psychic powers went in for a CAT scan and lost her ability to see into the future.

LULU: What?

PETER: She sued the hospital and the jury awarded her a million dollars.

LULU: Huh.

PETER: There was this bus driver who claimed that he got cancer from bumps in the road. Sued the bus company. He also won. And it's the junkiest science that's being used to prove these cases, so ...

MIKE GOTTESMAN: ... courts were beginning to become restless about this. And so there began to be a few judges, including on the Ninth Circuit ...

PETER: ... who went looking around for a way to keep experts out. And they found it in this obscure criminal case from 1923 called Frye.

MIKE GOTTESMAN: That had held that in criminal cases, judges could exclude expert testimony if what the expert was testifying to was not quote, "Generally accepted."

PETER: Which meant if you're an expert and you're gonna testify, whether that's about epidemiology or engineering or whatever, what you're saying has to be generally accepted by the field you're in. That's essentially the threshold that you have to get past.

LULU: It seems like Frye—Frye seems to gut check a paradigm. Like, is what this expert is saying in consensus with what we all believe at this moment in this field.

PETER: Yeah, I think you just said it. I think Frye is a pretty good, like, consensus test.

LULU: So you can't ...

LATIF: That sounds good, actually. Oh sorry, go Lulu.

LULU: Yeah, it does. Like, you can't come in with the rogue ...

LATIF: Right.

LULU: ... wild idea.

PETER: Right. but the thing is, Frye was also what was keeping this—these animal studies out of court. They were—the judge was allowed to say this isn't generally accepted in the field. And so without Frye, the Dauberts' experts would have been able to present that evidence and the jury would decide.

LULU: But that's what I actually don't understand. Like, was the Stuart-chicken science—like, was that actually that sketchy? Do you have a sense of that?

PETER: No, I don't think it was sketchy. It was legitimate science. He was reanalyzing previously-published studies. But I think ...

PAMELA YATES: But in terms of causation ...

PETER: ... to the point of Merrell Dow's attorney, Pam Yates ...

PAMELA YATES: There's sort of a pyramid of scientific evidence where you start with your cell studies, you go to your animal studies, but the human data, the human studies are really at the top of that pyramid. And that was our argument on that.

PETER: And that's basically what the judges agreed with. That's what's generally accepted. The Dauberts and these animal studies, they essentially don't have a case. And so for Joyce, like, not getting a trial was profoundly disillusioning.

JOYCE DAUBERT: Who's job—isn't it everybody's job to protect the innocent and the defenseless? And if you don't stand up and say the truth, you're tacitly endorsing the wrongdoer. And—and that's when the world goes down the tubes, I think. So that's how I look at it.

LULU: Radiolab will be back ...

LATIF: ... right after this short break.




LULU: You start.

LATIF: Latif.

LULU: Lulu.

LULU: Back with Peter.

PETER: Yeah, so ...

[dog barking]

PETER: Rocco. Go to sleep.

PETER: So Jason and Joyce had brought a lawsuit against Merrell Dow. It had gotten kicked out of district court, and then sent up to the Ninth Circuit.

PETER: But then the Ninth Circuit said no as well.

JOYCE DAUBERT: Yes, because the Frye ruling says dah dah dah, get out of my courtroom.

PETER: So then I mean, then you're like, "We're done?" Or are you ...?

JOYCE DAUBERT: Well, we had to get that stumbling block moved to the side. And so you know what the next step is.

[ARCHIVE CLIP, Supreme Court: We'll hear argument now in number 92.]

PETER: March 30, 1993.

[ARCHIVE CLIP, Supreme Court: Daubert v. Merrell Dow Pharmaceuticals, Inc.]

PETER: Their case goes before the Supreme Court. And Jason and Joyce, they fly out from California.

JOYCE DAUBERT: Jason had to get out of college.


PETER: It had taken them a decade to get to this point.

JASON DAUBERT: If we win here, we at least have a chance to keep going forward.

JOYCE DAUBERT: So it was a very exciting time.

PETER: So the Dauberts' side was argued by ...

[ARCHIVE CLIP, Supreme Court: Mr. Gottesman.]

PETER: Mike Gottesman.

MIKE GOTTESMAN: They asked me if I would handle it.

[ARCHIVE CLIP, Mike Gottesman: Mr. Chief Justice, may it please the court. Jason Daubert was born missing a part of his right arm.]

PETER: So Mike basically argued that the Frye rule ...

MIKE GOTTESMAN: ... that a judge could keep out expert testimony if it was not generally accepted.

PETER: He's essentially saying, like, this rule shouldn't be used. It should get tossed out.

[ARCHIVE CLIP, Mike Gottesman: As to which …]

[ARCHIVE CLIP, Sandra Day O'Connor: In making that argument ...]

PETER: And Sandra Day O'Connor jumps in and she says, "If we're gonna have an expert come in and talk about science, we should just look at the word."

[ARCHIVE CLIP, Sandra Day O'Connor: I think the word "science" is defined as "accumulated and accepted knowledge."]

PETER: She's like, "The Frye Standard, it's right there in the definition. Like, so shouldn't the judge have a role?"

[ARCHIVE CLIP, Sandra Day O'Connor: At the outset, what comes in?]

PETER: And Mike essentially says no, we should use the rules that Congress passed.

[ARCHIVE CLIP, Mike Gottesman: Under the federal rules of evidence ...]

PETER: The federal rules of evidence.

MIKE GOTTESMAN: And the rules of evidence did not give judges that power.

PETER: The rules gave more power to a jury. And Mike said there's an argument that the jury is actually better equipped to do this.

MIKE GOTTESMAN: There's only one judge and there are 12 jurors. The jurors can discuss among themselves what they think. Secondly, the jury will have heard the full testimony of the experts on both sides. Judges are deciding this at an early stage without a trial. They're gonna have less exposure to the issue than the jury has.

PETER: And ultimately, we have a trial-by-jury system. You know, let the jury decide.

[ARCHIVE CLIP, Supreme Court: Very well, Mr. Gottesman. Mr. Fried, we'll hear from you.]

PETER: And So then came the attorney for Merrell Dow.

[ARCHIVE CLIP, Charles Fried: Thank you, Mr. Chief Justice. And may it please the court.]

PETER: And one of the things that stood out to me is that there's a point ...

[ARCHIVE CLIP, Supreme Court: Can I ask you a question about the studies in this case? The animal studies as an example.]

PETER: ... where the justices start to ask about these animal studies.

[ARCHIVE CLIP, Supreme Court: Are the animal studies themselves, insofar as they prove anything about animals, scientific knowledge within the meaning of the rule in your view?]

[ARCHIVE CLIP, Charles Fried: These animal studies, if properly conducted—and some of them were—are scientific knowledge, without doubt. But they're used quite generally to raise a suspicion. They are like a scaffolding. But when the building is up, the animal studies drop away. The animal studies cannot support a ruling which will not stand ...]

[ARCHIVE CLIP, Supreme Court: Mr. Fried ...]

PETER: And Chief Justice William Rehnquist asks ...

[ARCHIVE CLIP, Supreme Court: How are we supposed to know this?]

PETER: We're not the scientists. How are we supposed to determine what's good science and what's junk? And, like, is that even our place?

[ARCHIVE CLIP, Supreme Court: You know, you're a lawyer. You're not a doctor. And here you are telling me that certain things are sowing in the scientific field. You may know, but I don't.]

JOYCE DAUBERT: We made a good argument.

[ARCHIVE CLIP, Supreme Court: The case is submitted.]

PETER: They went to a party, like, afterwards back at their attorneys.

JOYCE DAUBERT: Punch and cookies and whatnot.

PETER: Everybody's pretty excited. At one point, Joyce said, one of the lawyers came up to her ...

JOYCE DAUBERT: And he said, you know, that he was so happy to meet me, and it was such an interesting case. And he thought that it went well. What did I think?

PETER: Joyce said she also thought it went pretty well.

JOYCE DAUBERT: You just kinda hoped justice will be done. Justice will be served. And he said, "You do know, don't you, that nine of the most important people on the planet, your name is on their lips?"

PETER: So Joyce went back home and started teaching, and a couple of months later she got a call from one of her attorneys.

JOYCE DAUBERT: And she said, "Have you heard?" And I said, "No. I've been at school all day." You know, you know nothing. It's like you're in a submarine, you know, at school. And she told me, and she said, "9-0. This is just—you know, we're over the moon about it."

PETER: "We got a reversal. It's 9-0."

LULU: Wow!

LATIF: Damn! 9-0. Does that even ever happen?

LULU: No—no one's going to bat for Frye!

PETER: No—nobody went to bat for Frye, and essentially the Supreme Court says we're gonna adopt the federal rules of evidence, the liberal admission of experts.

JASON DAUBERT: We're like, "Yes, finally! We'll actually get our day in court. This is good."

PETER: You were going to finally ...

JOYCE DAUBERT: Prevail, yes. That's what we thought. But oh, no.

PETER: Because, like, as the opinion keeps going, the justices say, like, we know we just got rid of Frye, this rule that judges have this power to keep experts out of the court, but we actually think they should have this power. Like, judges should still be gatekeepers of what comes in and what gets tossed out. And when it comes to expert testimony, they made this, like, bullet-point list of things for judges to consider. And it's way more demanding than Frye. For example, whether the theory or technique in question has been tested, whether it's been subjected to peer review or publication, whether it has a known error rate, or that there are standards for control. And then finally, whether it has attracted widespread acceptance within a relevant scientific community.

LATIF: What?

LULU: This is like Frye plus.

LATIF: This is totally Frye plus.

LULU: It's doubled Frye-d. It's quadruple—it's a quintuple Frye.

PETER: It really is.

LULU: So—so what happens?

PETER: So the Daubert's case gets kicked back down to the Ninth Circuit, and not surprisingly the lower court says "Nope, we're not changing our minds now." Actually, the judge in this case, his name is Alex Kozinski, and right around this time, one of his clerks was Brett Kavanaugh.

LATIF: Whoa!

PETER: Minor footnote. But anyway, Kozinski writes his opinion in a way so that he would have the final word on this.

LATIF: Whoa!

PETER: And that final word is, like, "No, this is absolutely not going to trial." And so point by point he's, like, essentially taking down each one of the Daubert's experts. Like, he's saying some of them might have passed, like, publication and peer review, some of these studies are credible, but basically there's no direct test, there's a lack of stats, there's still no consensus about this. I think in the end what he's saying is that, like, just because something seems possible, like, just because it [i]could[/i] cause these injuries, does not necessarily mean that it did. They can't prove causality, doesn't meet the standard, this whole thing stops here. End of story.

LATIF: If I was this family, I would just hate the justice system so much!

PETER: Uh, yes.

LATIF: I would feel so, like, jerked around.

PETER: I think that's exactly how Joyce feels.

JOYCE DAUBERT: I definitely come to the notion that there is no justice. And I know—I've been called to jury duty, you know, and they says, "Anybody who can't serve?" And I was going, "I'm Daubert of Daubert v. Merrell Dow, and I don't—I don't believe in justice. This building says, you know, 'Those who seek justice, enter here.'" I said, "It turns—it turns my stomach. There is no justice. I never got my day in court. We had all of this evidence and, you know, it was a David and Goliath thing, and I never got my day in court. And there is no justice. And I don't want to sit on this jury and pretend that I can pass judgment on somebody when there is no justice. Please allow me to be excused."

LATIF: Oh, it just took them so much time. It took them over a decade, and did they even get anything out of it?

PETER: I think—I think there is one thing.

PETER: There's your—your ...

PETER: Like, when I went to visit Joyce, she has a photo hanging on her wall.

PETER: Your New York Times.

JOYCE DAUBERT: Have you seen that?

PETER: It's a photo of Jason and Joyce at the Supreme Court.

PETER: You guys look really happy in the photo.

PETER: And they're, like, both, like, beaming.

JOYCE DAUBERT: Well, we were happy to have a chance to get our case out.

PETER: Yeah.


PETER: Yeah, and—but you keep a—I mean, like, when you look at that, that's like a positive memory for you? Or ...

JOYCE DAUBERT: Yes it is. You know, kind of a case of unintended consequences.

PETER: So after the Supreme Court decided the case, you know, there was this new Daubert Standard. And it was adopted by federal courts, it was adopted by most states. And so I think in 1995, prosecutors wanted to introduce DNA evidence to prove that, you know, a bloodstain came from a certain person. And at the time, DNA wasn't generally accepted. It was something that was new, it was novel. But sort of the judge applied the Daubert Standard to DNA, it got admitted as evidence, and it sort of like became this gold standard. It's totally revolutionized the way that criminal courts, you know, look at evidence. And it's been used to prove people guilty of murders. DNA has helped get innocent people off of Death Row.

JOYCE DAUBERT: Whenever somebody's released from jail because the DNA has exonerated them, or it's—we feel very good that we were able to do that.

PETER: Their name has been invoked in sort of like in a way that allows people who are accused of crimes to, like, credibly question the prosecution and credibly question the state's experts. And what happens is Daubert has sort of shown that all these bedrock techniques, these forensic techniques that are sort of like all over in the courts, they aren't actually rooted in science. They're sort of like these techniques that were developed by law enforcement to prove people guilty. And, you know, this includes, like, bite marks, ballistics, matching tire marks, blood spatter, shoe prints, even fingerprints. I mean, like, all these disciplines, like, you know, they don't actually meet the requirements of Daubert. And so I think that's a really powerful tool. Not just in criminal cases, but in all cases.

PETER: So say, like, we're not just gonna be deferential to authorities. We're not just gonna be deferential to the received wisdom of the courts. We're gonna say, like, well, using the scientific method, like, how do you prove that?

LULU: Huh.

PETER: So ...

LULU: So it's like a tool for—for someone who is somewhat powerless. It's giving someone a little bit of a chance to kind of scrutinize the reason that they are being, like, said to be guilty. It gives them, like, one more ...

PETER: Yeah. I think, like, if you're—if you're deciding, like, really important things, if you're deciding, you know—like, if you're trying to prove somebody guilty of murder, if someone has died of asphyxiation and not a drug overdose, if vaccines cause neurological injury, if chemicals are leaching out into the water. I mean, the list goes on and on and on, but if you're deciding any one of those things, you really—I would really hope that, like, you know, we use the best available science. Like, this isn't a theocracy. We need to, like—we need to use the tools that scientists have developed to understand the world and, like, apply those in the context of the law. You know, like, the law is demanding answers and, like, science doesn't always have the answers. But at least we can use the methods of science to, like, guide people to, like, get a little bit closer to the science.

LULU: Do you think Daubert does that, though? Do you think Daubert helps us get to the best available science? Are you—are you, Peter, who's looked at it so closely, like, do you feel like it is a good kind of metric or gateway set of checks? Like, do you think it is the good standard?

PETER: Yeah. I mean, honestly, I think that Daubert can and should be used as like a force for social good. But that said, I think that it really does have some flaws. And the first thing that you see if you look at the data on the criminal side, you basically see that a lot of judges come from the prosecution side. They're more likely to admit evidence that is offered by the prosecution, so sometimes bad forensic science gets admitted and innocent people go to jail. That's bad. And yeah, on the civil side, I think you see that companies have sort of endless resources, deep pockets, and they're able to fund research that can sort of be used to disprove this litigation. So these big-money interests can essentially undermine the credibility of the plaintiff's expert. So I think it's an imperfect standard, but I think that, like, there is no perfect standard. I think that's the real problem is that if we are gonna have judges and juries who are non-scientists deciding these things that—you know, I think it's just a—it's a problem that's, like, inherent in your constitutional right to a trial by jury. Like, I don't think we're gonna have a perfect standard.

LULU: Right. But I guess there is the question of is this even that much better if the judge still holds the power to toss science out?

PETER: Right. Yeah, this is definitely something that Jason talked about.

JASON DAUBERT: For us, a big part of it also is chance, right? Like, if we had gotten a different judge, we might have had a different—like, we might have had a better chance at at least getting in the door. That's really my big thing. Like, I could've dealt with going to trial and losing. That would've been, not ideal but doable. But not even getting to go to trial. And again, I understand the basic idea, right? Like, you don't want to allow any crank and their perpetual motion machine into court. I get it. Absolutely. And cranks can look pretty respectable. There's that too. You got that problem. So you got lots of different things you gotta guard against. I get it. So—and I mean, it's possible. Like—like I say, I could be wrong. I could be the crank unknowingly. I don't think so but, like, it's not that I know that Bendectin caused my birth defects, it is that I think that it's probable. And I fully admit I could be wrong.


JASON DAUBERT: And on the other hand, I didn't even get a chance in court to show it one way or the other. That's a problem, right? When it all comes down to one person deciding whether you can even go to court or not.

PETER: Or whether your science is ...


PETER: ... right and true or not.


PETER: So ...

JOYCE DAUBERT: Well, do you kind of think that Bendectin didn't cause the birth defects?

PETER: Yeah, I don't—I don't actually know. I think, you know, what I'm saying is we know what the epidemiological evidence showed, and I don't think that that evidence necessarily disproved that the drug caused Jason's injuries. But I also think—yeah, I think there's—there's a lot of uncertainty there.

JOYCE DAUBERT: Well I guess, you know, that's why we go to court, and everybody presents their evidence and then we decide.

LATIF: A quick note: in the course of this reporting, Barry Nace, the lead attorney for the Dauberts, died in 2021. The only way we were actually able to hear from him is because Peter had spent the last three years reporting this story. And for that, we really want to thank Peter immensely for bringing it to us.

LULU: This story was produced by Matt Kielty, with and production and reporting assistance from Sarah Qari.

LATIF: Special thanks to Leah Litman, Rachel Rebouche, Jennifer Mnookin, David Savitz ...

LULU: And especially Brooke Borel and Tom Zeller Jr., editors at Undark Magazine, who originally published a version of this story in 2020.

LATIF: Terrific magazine. Check it out

LULU: So good. Check it!

LATIF: I'm Latif Nasser.

LULU: I'm Lulu Miller.

LATIF: Thanks for listening.

[LISTENER: Radiolab was created by Jad Abumrad and is edited by Soren Wheeler. Lulu Miller and Latif Nasser are our co-hosts. Suzie Lechtenberg is our executive producer. Dylan Keefe is our director of sound design. Our staff includes: Simon Adler, Jeremy Bloom, Becca Bressler, Rachael Cusick, W. Harry Fortuna, David Gebel, Maria Paz Gutiérrez, Sindhu Gnanasambandan, Matt Kielty, Annie McEwen, Alex Neason, Sarah Qari, Anna Rascouët-Paz, Sarah Sandbach, Arianne Wack, Pat Walters and Molly Webster. With help from Bowen Wang. Our fact-checkers are Diane Kelly, Emily Krieger and Natalie Middleton.]




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