The 1990s will be remembered for many things. None may be more important to the United States than the "Decade of Junk Science." The purpose of tort law is to compensate those who are injured through the negligence of others. It is necessary to prove that both the plaintiff was injured and that the defendant was at fault.
Unfortunately, skillful lawyers hire experts who say anything and torturestatistics to confess to everything. The result has been a rash of dubiousmass torts. Bendectin, Norplant, silicone breast implants, among others --yielding huge damages for nonexistent harms.
Indeed, the incentive to use junk science is overwhelming. As George MasonUniversity Law Prof. David Bernstein observes in a new article in theCalifornia Law Review: "phantom risk litigation feeds on politicalmanipulation, baseless media scare stories, unthinking public outrage, andplaintiffs' attorneys' financial incentives to bring speculative butpotentially highly remunerative cases." Among the worst examples is breastimplant litigation, which has become one of the great legal deluges inhistory, with thousands of women filing suit. An entire industry essentiallycollapsed as a result; Dow Corning was forced to file for bankruptcyprotection. Debate over the issue, writes Bernstein, "reverberates in legaland political circles." Yet hardly a day goes by without further evidencethat the scientific case against silicone implants has collapsed. Not thatthat should come as any surprise. Bernstein's essay reviews Marcia Angell's"Science on Trial: The Clash of Medical Evidence and the Law," which firstappeared three years ago.
Angell, executive editor of the New England Journal of Medicine, warned that"there was almost no reliable scientific information at the time of the ban"by the Food and Drug Administration (FDA). Instead, FDA head David Kesslermade a purely political decision, one that was ably exploited byentrepreneurial attorneys.
Since then a score of serious, peer-reviewed studies conducted byresearchers at such institutions as Harvard University, Johns HopkinsUniversity, the Mayo Clinic, and the University of Michigan, among others,have found an insubstantial to nonexistent connection between siliconeimplants and disease. Moreover, one report concluded that as a group womenwho had received implants were not at higher risk to a variety of healthproblems.
Every major survey sparked by the legal deluge has gone the same way. Forinstance, last summer the European Committee on Quality Assurance andMedical Devices in Plastic Surgery reported that the evidence was"conclusive" that implants did not cause autoimmune or connective tissuediseases, and that "there is no scientific evidence" of other siliconemaladies. These opinions were backed by a report from the Independent ReviewGroup, established by the British government.
A four-member expert panel appointed by U.S. District Court judge SamuelPointer reached a similar conclusion last December. It reported that "Noassociation was evident between breast implants and any of the individualconnective tissue diseases, all definite connective diseases combined, orthe other autoimmune heumatic conditions." None of this means that many, ifnot most, plaintiffs were not ill. But there is no evidence that implantsare at fault. As Dr. Angell puts it: Women have "been told they might getsick because of the implants. They've developed symptoms that any women over25 could develop." Because the evidence was so overwhelming, the vastmajority of court cases have gone for the defendants. But that doesn't meanjustice was done. As Bernstein points out, "sometimes a lawyer can win justby getting the game in play. Deterred by the possibility of large awards byunpredictable juries, high legal costs, and the notoriety of a trial, manydefendants can be induced to offer huge settlements." In the United States,it is too late to undo the damage suffered by implant makers. But judicialand legislative reform could prevent a repeat performance in anotherindustry.
Judges have begun to act. In 1993 the Supreme Court decided in Daubert v.Merrell Dow Pharmaceuticals that judges must weigh the "scientific validity"of expert evidence. The justices reinforced that decision in Kumho Tire Co.v. Carmichael last month, when they ruled that Daubert applies tononscientific expert testimony.
Legislators also could help end abusive litigation. Perhaps the mostimportant step would be to inaugurate the so-called English rule, whichrequires losers to pay the legal expenses of the winners. That way litigantsrelying on junk science would be held responsible for filing frivolouslawsuits.
A well-functioning liability system is critical for both a just society andan efficient economy. But a badly functioning one can have catastrophicconsequences, as evidenced by America's Decade of Junk Science.