Junk Science and the Law

Science and the law are very different. In science, "facts" are established by "incremental adjustments and carefully bounded negotiations among communities who share a commitment to closure." In law every fact is treated as "equally contingent" and every party has "every incentive to overstate the weakness in the other's case" (Jasanoff 1992). "The difference between these two approaches can make it difficult to evaluate scientific opinion in the courtroom. Proposed solutions to this problem have included the establishment of a separate 'science court' to hear disputes over scientific fact, the use of blue-ribbon juries to hear complex cases, the appointment of experts by judges, and the resolution of conflicts by mediation or arbitration outside the courtroom" (Annas 1994).

Peter Huber, in his 1991 book Galileo's Revenge, discusses the implications of junk science in the courtroom. "The art of junk science is to brush away just enough detail to reach desired conclusions while preserving enough to maintain an aura of authoritative science," Huber says. He discusses the history of junk science, from the torture and "expert testimony" employed during the Inquisition to more modern disastrous verdicts. He cites cases where products and medicines, such as the anti-nausea drug Bendectin (the repeal of the Frye Rule was due to a lawsuit against the company that manufactured Bendectin) were forced off the market because of junk science litigation. And the Audi car company was almost bankrupted by successful lawsuits that falsely claimed that Audis would accelerate without the pressure of the driver's foot on the gas pedal. Nor are sound public health methods exempt: many children are denied the benefits of fluoridation due to the junk science decisions of their local judges.

Clever witnesses and lawyers are often able to fool scientifically illiterate judges and juries. Charlatans prefer the courts of law to the courts of science, as their chances are much better with the law. Recently quacks, charlatans, and greedy entrepreneurs have joined forces with some creative lawyers and have developed new and dangerous ways to use America's courtrooms to further their political and economic goals.

Breast Implants and the Law

In a recent lecture and book (Science on Trial: The Clash Between Medical Science and the Law in the Breast Implant Case) the past editor of the New England Journal of Medicine, Dr. Marcia Angell, describes the controversy over the safety of silicone-gel-filled breast implants. "The breast-implant story illustrates better than almost any other event in recent times how litigation, fear, bias, and greed can interfere with scientific efforts to answer an important public health question. Perhaps most troubling of all, it clearly shows that in deciding about health risks, our courts and a substantial segment of the American public seem comfortable with methods that can only be described as antiscientific and irrational" (Angell 1996).

Despite compelling scientific evidence that silicone-gel implants are safe, massive successful lawsuits have been mounted. Dow Corning, the manufacturer of the majority of the silicone breast implants, was forced into bankruptcy. The parent company, Dow Chemical, which simply supplied the silicone, was successfully sued for an award of $14.1 million to a single plaintiff and faces immense future litigation. Angell blames the use of expert witnesses. She states that despite the Supreme Court ruling (in the Bendectin case) that judges apply criteria to allow only evidence that is reliable and relevant, these guidelines have been loosely applied. Indeed, Angell reports that "witnesses are considered experts on the basis of very broadly defined credentials (for example, pathologists may be permitted to testify about epidemiologic questions), and they needn't produce evidence from the literature to buttress their opinions, even when there are relevant studies in peer-reviewed journals. In the courtroom their opin ions are the evidence." This is exactly opposite of the scientific method, which declares the value of all opinions, even from experts, to be worthless without sufficient credible evidence.