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JUNK SCIENCE IN THE COURTROOM

by Peter Huber

Forbes, July 8, 1991 at Pg. 68

Copyright 1991 by Peter Huber. Electronic copies of this document may be distributed freely, provided that this notice accompanies all copies.

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Ever wonder about Princess Di's recent affair with Elvis Presley? You can read all about it in the supermarket tabloid. The stories of bizarre accidents and fantastic misadventures go on: Breast cancer is triggered by a fall from a streetcar, a slip in a grocery store, a blow from an umbrella handle or a bump from a can of orange juice. A spermicide used with most barrier contraceptives causes birth defects. The whooping cough vaccine causes brain damage. A certain model of luxury car accelerates at random, even as frantic drivers stand on the brakes. Incompetence by obstetricians is a leading cause of cerebral palsy. The morning-sickness drug Bendectin caused an epidemic of birth defects. Trace environmental pollutants cause "chemically induced AIDS."

All of these stories have been reported. All are false.

Oh well, you say. That's the world of the supermarket sensation sheet. But the amazing thing is that all of these stories, Di and Elvis excepted, are drawn not from tabloids for the semiliterate but from the annals of U.S. jurisprudence. They are announced not in smudgy, badly typed cult newsletters but in calf-bound case reports, subscribed to not only by quacks one step ahead of the authorities but by the authorities themselves.

The most fantastic verdict recorded so far was worthy of a tabloid: With the backing of "expert" testimony from a doctor and police department officials, a soothsayer who decided she had lost her psychic powers following a CAT scan persuaded a Philadelphia jury to award her $1 million. The trial judge threw out that verdict. But scientific frauds of similar character if lesser audacity are attempted almost daily in our courts, and many succeed. The traumatic cancer cases are decades old, but the others are recent.

The cases often revolve around genuine tragedies. What is not at all genuine is the connection between those tragedies and what the court says is to blame. Serious, mainstream scientists now openly deride "tortogens," "litogens," "scientific bamboozlement" in court, as well as the "carcinogenic properties of insurance." Nonetheless, our courts resound with elaborate, systematized deceptions that fully deserve the contemptuous label used by trial lawyers themselves: junk science.

The cost to society of scientific nonsense in the courtroom is truly enormous. A New York City obstetrician charges $4,500 for a normal infant delivery; a large fraction of this sum covers the insurance to defend against scientifically baseless claims that obstetricians cause birth defects. Future defense procurement costs will be inflated by liability insurance costs, as suppliers reflect on the $180 million spent in settling cases claiming a connection between Agent Orange and medical problems of Vietnam veterans -- a connection that epidemiologists now say doesn't exist. Merrell Dow Pharmaceuticals spent tens of millions defending itself from spurious claims that its morning-sickness drug caused birth defects; it finally took the valuable drug off the market. Consumers cannot know how many other remedies are denied them because liability insurance is too expensive.

Consider the courtroom antics of a fringe group of quasi-experts broadly known as "clinical ecologists." Clinical ecologists believe that trace chemicals in the environment are the cause of all manner of maladies, from depression to charley horses. More specifically, they believe in "chemically induced AIDS," a subversion of the immune system by minuscule exposures to environmental pollutants. A pair of clinical ecologists arrive in court in Missouri in late 1985, testifying on behalf of 32 residents of the town of Sedalia. At a nearby plant, Alcolac, Inc. manufacturers specialty chemicals for soaps and cosmetics.

The clinical ecologists will blame pollution from that plant for dozens of different afflictions, spanning nerve damage and heart disease, brain damage and vomiting, kidney infections and headaches. Using a battery of laboratory tests, the clinical ecologists claim to find "pervasive abnormalities" in the immune systems of every person tested. Utterly convinced, a jury awards $6.2 million in compensatory damages plus $43 million to punish Alcolac. The trial judge concurs. So does the court of appeals, though it sends the case back for a recalculation of damages.

Clinical ecology is critical in keeping alive another claim, brought by employees of Firestone in California. Other courts in Louisiana, California again and South Carolina all weigh in on the side of clinical ecology in workers' compensation claims. One case arrives at a $3.9 million verdict, another at $16.25 million. Other clinical-ecology-backed settlements for $8 million and $19 million have been reported.

What do scientists from the mainstream think of all this? One is Stuart Schlossman, chief of the Division of Tumor Immunology at the Dana Farber Cancer Institute and a professor at the Harvard Medical School. In 1989 he co-authored a postmortem on the Alcolac case. Laboratory tests of the immune system's condition commonly produce responses that vary from day to day, and from individual to individual, by upwards of 400%. There is no great significance in any little variation.

Schlossman writes with a certain quiet authority on the subject. Most of the monoclonal tests relied on by the "experts" in the Alcolac case had been developed by Schlossman's own research team at Harvard. "The expert testimony in Alcolac was not only outside the mainstream of science," Schlossman concludes; "it was outside its widest perimeter." The clinical-ecology syndrome, another mainstream observer finds, "constitutes a belief and not a disease."

Let's look at how junk science attends to the very real tragedy of cerebral palsy. The junk science theory here is that obstetrical malpractice is an important cause of cerebral palsy, that better use of electronic fetal monitoring and more aggressive use of the scalpel for cesarean delivery would often prevent the affliction.

Most cerebral palsy babies are in fact doomed long before an obstetrician comes near them. We know this from (among numerous other scientifically solid sources) a study by the National Institutes of Health. That study, the most complete of its kind, surveyed some 54,000 pregnancies at 12 hospitals between 1959 and 1966. The results of a study this size are about as solid as medical science can supply. As Jonas H. Ellenberg of the National Institute of Neurological Disorders & Stroke told UPI, "The evidence is very convincing that complications during labor and delivery are not responsible for the meaningful proportion of cases of cerebral palsy."

And yet, despite the almost complete absence of scientific basis for these claims, cerebral palsy cases remain enormously attractive to lawyers. About 4 million babies are born healthy every year. Ignore them. Some 4,000 babies a year are born with cerebral palsy. Ignore most of them, too. But 400 (say) of those had a complicated delivery. These are the cases most likely to arrive in court. And there the facts are reviewed chronologically, so that the jury sees the undisputed trauma first, the disputed negligence second, the undisputed cerebral palsy third. It is a perfect setup for misinterpreting sequence as cause. Litigated a mere 40 times with a one-in-two success rate, that setup can bring a small law firm a one-third share of $50 million or so in settlements, on an upfront investment for expert-witness fees and administrative costs of maybe $5 million.

Time and again, one sees how an avalanche of lawsuits can be loosed by a tiny hiccup of error in scientific research. In 1985, for example, lawyers won a spectacular $5.1 million verdict against Ortho Pharmaceutical Corp., largely on the strength of a single study that had very tentatively suggested that spermicides might cause birth defects. Not quite two years after the verdict, however, the several authors of that study spoke out again. One acknowledged that their work "was not corroborated by subsequent studies," and that their "study's definition of exposure to spermicide near the time of conception was grossly inaccurate." Another conceded: "I believe our article should never have been published. In our present litigious environment, the reservations and qualifications written into a published report are often ignored, and the article is used as 'proof' of a causal relationship."

The legal disaster of the pertussis (whooping cough) vaccine unfolded in much the same way. The vaccine, first licensed in 1949, has virtually ended whooping cough as a dread disease (265,000 cases, with 7,500 deaths, recorded in 1934). But in 1981 a major British study suggested that the vaccine's use might be causing one case of brain damage for every 310,000 immunizations. Extrapolated to the U.S., that would be about 50 cases a year. American lawyers responded with an avalanche of litigation, blaming the vaccine for epilepsy, mental retardation and various forms of brain damage.

In response, one major supplier of pertussis vaccine, Wyeth Laboratories, abandoned the market. More solid scientific evidence slowly accumulated. Then, in March 1990 the Journal of the American Medical Association reviewed three recent studies covering a total of 230,000 children and 713,000 immunizations. Conclusion: No evidence of serious neurological complications or deaths from the vaccine. "It is time for the myth of pertussis vaccine encephalopathy to end," declared the journal. "We need to end this national nonsense."

Even as these words were written, another epidemic of what will likely prove to be national nonsense was getting under way. A tentative (and cautiously phrased) report, based on observations of a total of six patients, suggested a possible link between Prozac, a widely used antidepressant, and an increase in suicidal tendencies. A much larger body of research, involving hundreds of Prozac users, finds no such link. Even the author of the six-patient study agrees that Prozac remains a valuable, much-needed therapy.

But trial lawyers, in a bizarre alliance with the Church of Scientology, have launched a huge campaign to smear Prozac and its manufacturer, Eli Lilly, and to drum up litigation. The lawyers are after the usual -- money, of course. And the Scientologists? They sell a competing "therapy" called Dianetics, and simply despise all conventional forms of psychiatry and psychopharmacological treatment.

The mass media can often play a critical role in the early stages of a junk science epidemic. In 1986, for example, assisted by an inflammatory segment on CBS' 60 Minutes, plaintiff lawyers filed hundreds of claims blaming bizarre car accidents on an unidentified design defect in the Audi 5000. The car was allegedly prone to sudden acceleration, uncontrollable even by a foot rammed on the brake. 60 Minutes featured the parents of 6-year-old Joshua Bradosky, who had been killed in an accident that looked like just such an incident. One of the experts who starred on television was William Rosenbluth, who had been retained by the Bradoskys' lawyer. Correspondent Ed Bradley, who narrated the segment, suggested that Rosenbluth had uncovered a defect in Audi transmissions that might explain sudden acceleration. After the TV show, others suggested alternative explanations -- for example, that the Audi's electronic cruise-control was being activated by stray radio signals.

The imaginative theories cooked up for litigation generated publicity, which attracted new claimants, which generated still more publicity. By 1989 Audi was facing over a hundred lawsuits making demands totaling $5 billion.

Meanwhile, the Bradosky case had gone to trial, and the jury had sided with Audi. Thereafter, comprehensive reviews by the National Highway Traffic Safety Administration and its counterparts in Canada and Japan would all reach the same conclusion. The cause of sudden acceleration, in the Audi as in any other car, is a foot placed accidentally on the wrong pedal. But despite this complete vindication, Audi went on to lose several other cases, including one $3.7 million verdict in California; at a certain point the plaintiff attorneys shifted from mysterious-acceleration theories to the argument that Audi should have made its cars idiot-proof. Audi's U.S. business was massacred by the litigation and the 60 Minutes report (see chart, p.72).

What accounts for the proliferation of pseudoscientific shantytowns all around the modern American courthouse? Beginning in about 1975, when the federal rules of evidence were codified for the first time, both federal and state courts began to be far more permissive about scientific testimony. Many abandoned an old standard -- known as the Frye rule, after a 1923 ruling on the use of lie-detector evidence in a criminal case -- which had previously required an expert witness to report views "generally accepted" in the wider scientific community. The upshot has been what federal court of appeals Judge Patrick Higginbotham has criticized as the "let it all in" approach to evidence. As Donald Elliott said in a speech given before he took his present position as general counsel of the Environmental Protection Agency, the law today "extends equal dignity to the opinions of charlatans and Nobel Prize winners, with only a lay jury to distinguish between the two." Edward Imwinkelried, co-author of the treatise Scientific Evidence, says that today's courts "accept a wide range of scientific testimony that would have been patently inadmissible ten years ago."

Unfortunately, science's approach to determining what causes what is fundamentally different from the law's. The result is scientific anarchy in court. In court, scientific facts remain perpetually in play. Trials are not connected; the same question about Prozac, the allegedly self-propelling Audi or clinical ecology can be litigated again and again. In the worst cases, courts drift through the degenerative sequence described by the historian Jerome Ravetz, and thereafter elaborated by William C. Clark. Tentative outlooks are often suppressed, views are quickly polarized, and a "great confidence game," as Ravetz calls it, replaces serious science. Recognition and money flow "to those making the first, loudest and most frightening noises," adds Clark.

For just such reasons, the Frye rule required judges to look beyond the individual scientist, whatever his credentials might be, and toward consensus in the scientific community. Modern science, unlike modern law, has an excellent track record in sifting out the wheat from the chaff, in working out the differences between high-temperature superconductivity, an astonishing discovery that proved real, and low-temperature fusion, astonishing and unreal. Any single scientist may err, and most do sooner or later, but the modern scientific process, a process of replication, verification and the development of consensus, has proved exceptionally powerful and reliable.

Once one understands that the core of science is consensus, the need for strong enforcement of something much like the Frye rule becomes apparent. An expert who appears in court to present nothing but his own idiosyncratic opinions about cancer or chemical AIDS is, for all practical purposes, just a lawyer in scientific drag. Science, by definition, is never a matter of individual opinion; it is always a matter of consensus in a much larger community.

There are plenty of ways for courts to identify where that consensus lies, if judges ever rediscover the will. An authoritative scientific report by the National Institutes of Health on electronic fetal monitors might be one. Or one by the Centers for Disease Control on the pertussis vaccine, or the causes of pelvic infection. Or by the Surgeon General's office on tobacco. Such institutions, established and funded to make difficult scientific calls, draw on the best and broadest scientific resources. This is not to suggest that they are infallible; of course they aren't. They are just less fallible -- much less fallible -- than a thousand juries scattered across the country grappling with the complexities of immune system impairment after being educated by a pliable clinical ecologist who believes in chemical AIDS.

When definitive pronouncements of the Food & Drug Administration, the Centers for Disease Control or the Surgeon General are not at hand, the next best place to look for the consensus views of mainstream science is in the peer-reviewed scientific literature. A witness whose views have survived peer review in a professional journal will already have been forced into a candid disclosure of cautions and qualifications; good journals won't publish without them. If the published claim is of any importance, publication will also mobilize other scientists to repeat, verify, contradict or confirm. By requiring professional publication as a basis for expert opinion, judges will help line up the larger community of scientists to shadow the necessarily smaller community of expert witnesses.

It has gradually dawned on professional societies that they, too, should be concerned about a legal system in which the worst doctors, engineers or toxicologists are given a better than fair shot at prescribing standards of conduct for the rest. If X rays, CAT scans and cesarean sections are proliferating in unnecessary (and perhaps dangerous) excess, it is because too much of obstetrics, cancer treatment and emergency-room surgery is conducted a second time in court, by second-rank doctors who understand law better than medicine.

Some will always insist that all truth is relative and subjective, that anyone should therefore be allowed to testify to anything, that science must be viewed as a chaotic heap of unconnected and contradictory assertions, and that the best we can do is invite juries to decide scientific truth by majority vote. But anyone who believes in the possibility of neutral law, as many fortunately still do, must at the same time believe in the existence of objective fact, which ultimately means positive science. The only real alternative is nihilism.

No one who remembers Lysenko and Stalin or the junk science of the Nazis can be comfortable with the assertion that science is just a matter of taste, that one brand is every bit as good as another. If it's politically convenient for chemophobes to embrace the junk science of chemical AIDs, it is politically convenient for homophobes to embrace the junk scientist who would argue that AIDS is transmitted by casual contact or by houseflies.

The strongest antidote to bad science in court remains one that most American judges are still regrettably reluctant to use. European judges routinely summon their own experts. Our judges have similar powers, but few choose to exercise them. Most trial lawyers vehemently oppose court-appointed experts, perceiving (correctly, no doubt) that consensus cannot be good for a conflict-centered livelihood. Lawyers will therefore assure you that there is no such thing as a neutral expert. But it is obviously possible to find knowledgeable scientists of high principle, and having a nonpartisan judge do the finding considerably improves the prospect of locating a less partisan expert.

Meanwhile, opportunities for bad science lurk in every claim of especially subtle or low-level effect, in every report of hazards that mainstream scientists can't quite pin down or explain. Already pending on today's legal agenda are claims that electromagnetic fields from high-tension wires cause cancer. A case currently under appeal in New Jersey concerns the alleged link (never scientifically documented) between colon cancer and chemicals known as polychlorinated biphenyls. Some of these claimed links may prove real, but others will almost certainly turn out to have been based on poor or incomplete science, meaningless sequences or random clusters, and tentative studies that are later repudiated.

Is there a way out? We should not forsake all hope. In 1610, when witch-hunting was one of Europe's most popular blood sports, the exceptional Inquisitor Alnso Salazar y Frias took a first, serious look at who was being burned for what in the town of Logrono in Navarre, Spain. He found what today seems obvious: The accusations had been false, confessions had been induced by torture, and -- notwithstanding the solemn findings of countless trials -- there was no credible evidence of any witchcraft at all. Salazar y Frias put in place new rules. The Spanish Inquisition would no longer use torture, and accusations would be considered only when supported by independent evidence.

"In modern terms," Clark observes, Salazar y Frias "had introduced rules of evidence which recognized the perverse and essentially meaningless forms which unstructured 'facts' could take." The number of witches brought to trial dropped sharply. What we need is a modern-day Salazar y Frias to bring scientific order to the courtroom.


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