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.
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
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
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
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
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
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
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
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
"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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