by Peter W. Huber
Ever wonder about Princess Di's recent affair with Elvis Presley? You can read all about it on the front page of the supermarket tabloid. Elsewhere on the page appear stories of bizarre accidents and fantastic misadventures. An impact with a car's steering wheel causes lung cancer. Breast cancer is triggered by a fall from a streetcar, a slip in a grocery store, an exploding hot-water heater, a blow from an umbrella handle, and a bump from a can of orange juice. Cancer is aggravated, if not actually caused, by lifting a forty-pound box of cheese. Everybody knows, of course, that such stories are fiction. Falls and bumps don't cause cancer.
Other stories tell how a spermicide used with most barrier contraceptives causes birth defects. We know it doesn't. The whooping cough vaccine causes permanent brain damage and death. That's not true either. The swine flu vaccine caused "serum sickness." It didn't. A certain model of luxury car accelerates at random, even as frantic drivers stand on the brakes. Not so. Incompetence by obstetricians is a leading cause of cerebral palsy. It isn't. The morning-sickness drug Bendectin caused an epidemic of birth defects. It didn't. Trace environmental pollutants cause "chemically induced AIDS." They don't.
How can anybody be absolutely, positively certain about these didn'ts, doesn'ts, and don'ts? No one can. But the science that refutes these claims is about as solid as science ever is.
And yet all of these bizarre and fantastic stories -- Elvis and Di excepted -- are drawn not from the tabloids but from legal reports. They are announced not in smudgy, badly typed cult newsletters but in calf-bound case reports; endorsed not by starry-robed astrologers but by black-robed judges; subscribed to not only by quacks one step ahead of the authorities but by the authorities themselves. They can be found on the dusty shelves of any major law library. The cancer-by-streetcar cases are decades old, but the others are recent.
When they learn of these legal frolics, most members of the mainstream scientific community are astounded, incredulous, and exasperated in about equal measure. Some now speak with open derision about tortogens, litogens, scientific bamboozlement, and the carcinogenic properties of insurance; others wonder why courts invite the inmates to run the asylum. The derision is understandable. Maverick scientists shunned by their reputable colleagues have been embraced by lawyers. Eccentric theories that no respectable government agency would ever fund are rewarded munificently by the courts. Batteries of meaningless, high-tech tests that would amount to medical malpractice or insurance fraud if administered in a clinic for treatment are administered in court with complete impunity by fringe experts hired for litigation. The pursuit of truth, the whole truth, and nothing but the truth has given way to reams of meaningless data, fearful speculation, and fantastic conjecture. Courts resound with elaborate, systematized, jargon-filled, serious-sounding deceptions that fully deserve the contemptuous label used by trial lawyers themselves: junk science.(1)
Junk science is the mirror image of real science, with much of the same form but none of the same substance. There is the astronomer, on the one hand, and the astrologist, on the other. The chemist is paired with the alchemist, the pharmacologist with the homeopathist. Take the serious sciences of allergy and immunology, brush away the detail and rigor, and you have the junk science of clinical ecology. The orthopedic surgeon is shadowed by the osteopath, the physical therapist by the chiropractor, the mathematician by the numerologist and the cabalist. Cautious and respectable surgeons are matched by some who cut and paste with gay abandon. Further out on the surgical fringe are outright charlatans, well documented in the credulous pulp press, who claim to operate with rusty knives but no anesthesia, who prey on cancer patients so desperate they will believe a palmed chicken liver is really a human tumor. Junk science cuts across chemistry and pharmacology, medicine and engineering. It is a hodgepodge of biased data, spurious inference, and logical legerdemain, patched together by researchers whose enthusiasm for discovery and diagnosis far outstrips their skill. It is a catalog of every conceivable kind of error: data dredging, wishful thinking, truculent dogmatism, and, now and again, outright fraud.
On the legal side, junk science is matched by what might be called liability science, a speculative theory that expects lawyers, judges, and juries to search for causes at the far fringes of science and beyond. The legal establishment has adjusted rules of evidence accordingly, so that almost any self- styled scientist, no matter how strange or iconoclastic his views, will be welcome to testify in court. The same scientific questions are litigated again and again, in one courtroom after the next, so that error is almost inevitable.
Junk science is impelled through our courts by a mix of opportunity and incentive. "Let-it-all-in" legal theory creates the opportunity. The incentive is money: the prospect that the Midas-like touch of a credulous jury will now and again transform scientific dust into gold. Ironically, the law's tolerance for pseudoscientific speculation has been rationalized in the name of science itself. The open-minded traditions of science demand that every claim be taken seriously, or at least that's what many judges have reasoned. A still riper irony is that in aspiring to correct scientific and medical error everywhere else, courts have become steadily more willing to tolerate quackery on the witness stand.
Experienced lawyers now recognize that anything is possible in this kind of system. The most fantastic verdict recorded so far was worthy of a tabloid: with the backing of expert testimony from several 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 in damages.(2) 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. Most involve real, down-to-earth tragedies like birth defects, cancer, and car accidents. Many culminate in large awards. As the now dimly remembered cancer-by-streetcar cases illustrate, junk science is not an altogether new phenomenon in the courtroom. But its recent and rapid rise is unprecedented in the history of American jurisprudence. Junk science verdicts, once rare, are now common. Never before have so many lawyers grown so wealthy peddling such ambitious reports of the science of things that aren't so.
Yet among all the many refractory problems of our modern liability system, junk science is the most insidious and the least noted. Some say that legal standards have grown too strict; others sharply reply that they have not changed at all, or have changed only for the better. A lonely few -- mavericks themselves no doubt -- have argued that notions of consent and contract should replace much of modern tort law; most others dismiss such ideas out of hand. Some complain that awards are too high, that legal fees are excessive, that punitive verdicts are unpredictable, that litigation drags on too long; others vehemently disagree on every count. Nobody much disputes, however, the idea that responsibility for accidents should depend on facts about who or what caused what to whom. If the operator of a streetcar is to be blamed for cancer, serious science should be on hand to certify the connection. But often it isn't. The rule of law has drifted away from the rule of fact.
What is to be done? Lawyers have long debated how best to attack the dangerous incompetence of some doctors, drug companies, and car manufacturers. Today an even more urgent question is what to do about accidents in court: how to stop legions of case-hardened lawyers from attacking false causes, on behalf of false victims, on the basis of what nobody but a lawyer and his pocket expert call science. Of course we want a legal system that can deter malpractice in the clinic or on the assembly line. At least equally grave is the problem of malpractice on the witness stand. As we shall see, it too can be lethal.
No one would suggest that junk science should generally be banned or its practitioners silenced. Freedom of speech includes the freedom to say silly and false things, even things that mislead, miseducate, or endanger. But our cherished freedom to say what we like on the front page of the National Enquirer need not imply the freedom to say similar things from a witness box in the solemnity of a courtroom. "By giving us the opinions of the uneducated," Oscar Wilde once observed, "modern journalism keeps us in touch with the ignorance of the community."(3) But judges have a quite different function. It may be funny to see whimsical science in the astrology column next to the comics. It is considerably less funny when something masquerading as science is taken seriously in court, less funny still when millions of dollars change hands on the strength of arrant scientific nonsense, and not funny at all when such awards lead to the disappearance of valuable and perhaps even life-saving products and services. If it is wrong to condemn the visionary whose science conflicts with established religion, it is also wrong to worship the crank whose superstition conflicts with established science.
"It is hard to tell which exhibits the greatest departure from the normal," the distinguished physicist David Hering remarked almost seventy years ago. Is it "the eager chaser after the will-o'the-wisp, who is so wholly possessed by his idea that it becomes an obsession?" Or is it "the admirers and victims themselves who, astute enough in general, are peculiarly susceptible to some particular form of deception . . . even in some instances pleased at being humbugged?"(4) We will never determine who is more strange, the sellers of junk science or its buyers. But in the pages that follow we shall be meeting them all: the eager chasers, the susceptible admirers, and the numerous victims. We shall find them converging in numbers in the modern American courtroom. And we shall encounter many otherwise astute people who are pleased at being humbugged.
They have reason to be pleased. Scientific humbuggery in court has become an immensely profitable business.
Endnotes
See, e.g., Rheingold, It's Time to Change the System on Junk-Science, Quack-Expert Issues, Manhattan Lawyer, November 1-7, 1988, p. 13.
See Digirolamo, Judge Throws Out $986,000 Jury Award to "Psychic," United Press International, August 9, 1986; Fleetwood, From the People Who Brought You the Twinkie Defense: The Rise of the Expert Witness Industry, Washington Monthly, June 1987, p. 33.
O. Wilde, The Critic As Artist in The Portable Oscar Wilde 119 (R. Aldington & S. Weintraub, eds., 1981).
D. Hering, Foibles and Fallacies of Science 10 (1924).