Junk Science in the Courtroom How and why "make-believe" science gets used

By William Masters

William Masters has 20 years experience as a defense attorney in civil litigation, focusing in personal injury defense, toxic tort, medical and psychological injuries, and products liability defense. He is currently defending Dow Chemical in the silicone breast implant litigation. He is a member of the Oregon State Bar and the Multnomah County, Washington State, and American Bar Associations, and has served as a Multnomah County Circuit and District Court Judge Pro Tempore.

Personal injury litigation thrives on "make-believe" science. Not only does it underpin the opinions of many expert witnesses, but its rationale pervades the way these cases are structured and presented at trial. A good plaintiff's personal injury case is one no conceivable evidence could falsify. For example, if a plaintiff claims her injury prevents her from gardening, but she is seen gardening, she will respond, "yes, but I dearly paid for it physically the next day." Fortunately, these sophistical tricks soon become obviously self-refuting.

     The more subtle problem is the use of make-believe science by plaintiffs' experts. Too often they base their opinions on unvalidated and unreliable hypotheses, tests and techniques, including, for example, the repressed memory syndrome, myofascial pain syndrome, post-traumatic stress syndrome and, most recently, the so-called "silicone breast implant syndrome." And they frequently misuse easily manipulable tests and techniques, such as chiropractics, techniques to identify various forms of inner ear dysfunction, and neuropsychology.

     What stands in the way of their use of make-believe science? Simply, the rule of law. For many years, that rule was the rule of Frye v. United States, 293 F 1013 (1923). Frye significantly limited the admissibility of scientific evidence. Under Frye, an expert witness had to describe the extent to which the relevant scientific community agreed that the proffered scientific evidence is valid and reliable. The required degree of agree-ment was, in the words of the court, "general acceptance." Under Frye, the judge only determined whether the expert was accurately or truthfully describing the degree of agreement in the scientific community.

     But plaintiffs' attorneys found this rule too restrictive. It tended to exclude scientific theories that were "novel." And "novel theories" are the kind of science they like best. Instead, they wanted a rule that would admit all varieties of scientific evidence. Juries, they asserted, can then distinguish real from make-believe science. Of course, this is plaintiffs' "big lie." They know as well as you and I that juries are inept at distinguishing real from make-believe science. Juries are scientifically illiterate.

     In 1993, the Frye rule was replaced by the rule of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Like Frye, Daubert also limits the admissibility of scientific evidence. But unlike Frye, it requires the judge evaluate that the testimony of the expert witness be "scientific knowledge," that kind of knowledge derived through the use of "the scientific method." Clearly these two tests - Frye and Daubert - are different. Under Daubert, the judge evaluates scientific validity, whereas under Frye, scientific validity is evaluated by the relevant scientific community.

     This difference is significant. Under Frye, the judge's motives are not a significant factor in the decision to admit or exclude the expert's testimony, whereas under Daubert they can be. Under Daubert, if a judge has a bias for either plaintiffs or defendants, she can characterize the evidence in a way to benefit that favored group without much concern that she will be overruled. That is, because Daubert entrusts the judge with the enlarged task of evaluation, it extends the range of possible interpretations about what constitutes scientific knowledge.

     So what is the problem with that? What you would imagine: ignorance about science and the play of politics. This problem is exemplified in the silicone breast implant litigation. From the beginning, this litigation has been founded on make-believe science. It was begun by some women with silicone breast implants who allege, based on a random assortment of non-specific subjective symptoms, that silicone has caused their immune systems to attack unidentified components of their bodies. This immune response has resulted, they allege, in an unspecified "disease." Of course, for their alleged problems, each seeks millions of dollars in damages.

     What has been plaintiffs' scientific evidence? Poorly designed bench or laboratory studies (some in which the data has been trimmed), uncontrolled clinical or case studies, and an over-interpreted epidemiological study. What is the problem with this evidence? The answer is simple. It fails to meet basic requirements of scientific method. These studies are not controlled, lack appropriate statistical analyses to control for chance, use test samples that are grossly biased, and are not replicable.

     Even so, most judges have allowed this make-believe science to run wild, to flourish in their courtrooms. But not Judge Robert E. Jones. Under Daubert, as the gatekeeper, he firmly grasped the gate in order to assess the "scientific validity" of plaintiffs' alleged scientific evidence. Wisely, recognizing that he was no scientist, he appointed a panel of scientists to advise him about plaintiffs' proffered evidence in light of appropriate scientific method. These independent advisors were instructed to evaluate plaintiffs' alleged scientific evidence in four areas: epidemiology, clinical rheumatology, laboratory immunology, and polymer chemistry, in light of three questions:

     1) Does plaintiffs' expert rely upon scientifically reliable data or principles (was the scientific method used)?

     2) Does the expert offer an opinion directly determined or supported by these data or principles (are "leaps of faith" from data to opinion involved)?

     3) Does the expert's opinion tend to prove the scientific issues in the case (does the opinion "fit" the issue)?

     Then, after hearing the best case plaintiffs could offer, Judge Jones, with the blessing of his advisory panel of experts, ruled that plaintiffs' alleged atypical rheumatic syndrome was at most a "hypothesis," waiting to be scientifically tested, and that the alleged mechanism of injury was based on studies that did not either support or tend to prove plaintiffs' hypothesis. In short, plaintiffs' evidence was make-believe science.

     This make-believe science, he concluded, should not be presented to a jury in cases pending trial in federal court in Oregon. That is, plaintiffs' attorneys could not use this make-believe science as a soapbox from which to spew their formulaic, inflammatory rhetoric about victims and victimizers in order to obtain irrationally generated runaway verdicts. This concern is real; a recent study in the New England Journal of Medicine (12/26/96) disclosed that in medical malpractice claims, how severe a plaintiff was disabled better predicted whether the jury awarded her damages than whether or not the physician was negligent in providing care.

     Judge Jones' opinion is a stunning victory for those who believe that the cornerstone of our judicial system is rationality. But sadly this ruling is too little too late. Why have so many other judges failed to end the use of this make-believe science? Did they know the case law less well? Maybe, but not likely. Was the scientific evidence less clearly developed? Somewhat, but not significantly. Did the attorneys explain the issues less clearly? Possibly, but not probably. No, the difference is not one of rationality, but of politics. Sociopolitical forces perpetuate the use of "make-believe" science in courtrooms. These forces could be controlled in short order if the courts stood apart from them, but they do not; they are embedded in them; some more than others.

     So sound law is a necessary but not a sufficient condition in thwarting make-believe science. What is also needed is a judge motivated to interpret and apply the law appropriately, that is, neutrally. Some judges like Judge Jones are motivated by the spirit of the law to resist the forces of politics when decision making. Others are not.

     How does this happen? For the answer, we need not look far. Judges are appointed by politicians for their ideological slant, for their politics. Federal judges are appointed by politicians, but they are appointed for life and so not subject to ongoing political pressures. As a result, when decision making, some of them shed most of their ideological biases and apply the law neutrally. A good example is Judge Jones.

     State court judges, like federal judges, are also appointed by politicians. For the past decade, for instance, judges in Oregon have been appointed by governors with strong ideological biases favoring claimants, not insurers or businesses. Even so, could not some of these judges like some federal judges rise above ideological biases and apply the law neutrally? Sadly cultural forces work to prevent that. You see, state court judges, unlike federal judges, are subject to re-election. As a result, when they decide cases with a high public profile, they must do so with an eye to the "relevant" electorate. A judge appointed and re-elected for her politics can be unelected for changing her politics or for becoming apolitical. This truth is common sense. If it were otherwise, why would they be subject to election?

     But what is the relevant electorate? Is it the people of Oregon? Only nominally. How many voters cast a vote for judges? Not that many. The relevant electorate is that group of "interested" attorneys in the county in which the judge sits. Which group is most interested? Surely it is the plaintiffs' bar, those attorneys who initiate personal injury litigation. This is the largest organized group of litigators in the state. It is well organized, locally, under the auspices of the Oregon Trial Lawyers Association (OTLA), and, nationally, under the auspices of the American Trial Lawyers Association (ATLA).

     If a state court judge were tempted to expose plaintiffs' make-believe science for what it is - "make-believe science" - OTLA would quickly remind her whose in charge, as it so informed Judge Bearden last year when he took away an irrational plaintiff's verdict in the breast implant case of Shaw v. Bristol-Myers. In response, Judge Bearden recused himself from any further involvement in the ongoing breast implant cases.

     So politics explains why judges open the gate to make-believe science. What explains why seasoned scientists advocate positions inconsistent with basic scientific method? Is it ignorance - the absence of rationality? In their fields of expertise, they are usually not ignorant, unlike the editors of Social Text, professors of literature, who recently ignorantly published physicist Alan Sokal's hoax on the academic left, exposing their polemic, anti-realistic critiques of scientific disciplines for what they are - presumptuous wool gathering.

     Usually experts are highly rational. But even so, could they be like Sir Isaac Newton: A brilliant physicist by day but a deluded alchemist by night? Some no doubt are; for example, Dr. Mack, the psychiatrist at Harvard who believes aliens have abducted and abused his patients. But most are not.

     If the explanation is not ignorance, then what is it? Is it opportunism - the subservience of rationality to other goals? Emphatically, "yes"! Invariably this alternate goal is money. These experts know what rationality requires, but ignore its requirements in order to earn substantial witness fees, to pay alimony, to put their children through college, to pad their retirement funds, to buy a new car.

     So as not to leave anyone out, who are the accomplices of these experts in this quest for dough? They are an exponentially expanding bar of plaintiffs' attorneys, the ever-so-willing-to-go-along plaintiffs, and, of course, the increasingly irresponsible media.

     Some plaintiffs' attorneys are filing too many unworthy cases, like the silicone breast implant cases, maintained with one goal in mind - earning a lot of money. But let's not forget their clients who too often willingly grossly inflate their claims, malinger, and, without a hint of social responsibility, do and say whatever is necessary to win their litigation.

     Of course, the sins of the media need little introduction; well known is its unprincipled quest for ratings and the advertising dollar. Think of the expense in the order of billions of dollars, lost jobs, and heartache arising from the silicone breast implant litigation, a debacle that can be traced back to the grossly irresponsible reporting of Connie Chung, who, hiding behind the First Amendment, cavalierly associated a random assortment of common non-specific symptoms in a group of middle aged women to the silicone in their breast implants, sparking national hysteria.

     In this tale of greed, ignorance and politics is an unwelcome irony. Perhaps in efforts to correct some social problems, we have unwittingly created others. Since the 1970s, many have applauded appointment of judges who are political activists, in order to have the courts pursue social goals that legislators were too slow to pursue. Many of these goals are universally applauded: the fight against bigotry, racism and inequality.

     Yet political use of the judiciary comes with a price. That price is this: often judges appointed to right the wrongs against those who share that judge's political and social identity protect them blindly and, as a result, indiscriminately - that is, oftentimes not in accordance with but despite the rule of law.

     For instance, many involved in the claims of women with silicone breast implants opportunistically wish to characterize the issues as "women's issues." Naturally this implication lends a moral tone to plaintiffs' claims, reinforcing their image as victims not only of an allegedly nasty toxin but also of the patriarchy, a putatively inhumane force that has socially constructed women's vanity for large breasts and exploited that need by supplying them with a potentially dangerous product.

     A politically active judge who uncritically accepts that rationalization as morally righteous is, under Daubert, apt to consider the gate a floodgate to be opened for the yards of make-believe science supporting these claims. "Identity politics entails," as a scholar recently remarked, "the same myopia ... as any other politics."

     Those who applaud judges who are political activists must also applaud judges who decide issues other than on the basis of rationality and neutrality. But the skeptic rejoins, "whose rationality?" The rationality of the patriarchy? The rationality, that is to say, of the Enlightenment? What about the voices of the dispossessed - the women with silicone breast implants, the women who took Bendectin or L-tryptophan - all those innocent claimants injured by the rich and powerful? "We need a rationality that is more democratic!" Their battle cry, "one person's rationality is another's irrationality."

     This is, of course, the antifoundationalist's admonition that no one can stand in a privileged position and "attempt to ground inquiry and communication in something more firm and stable than mere belief or unexamined practice." In this vein, Professor Hilary Putnam of Harvard has remarked, "one's assumptions about rationality are a largely unexamined collection of cultural myths and prejudices."

     The only defense against this kind of relativistic onslaught is a scientific community solidly and strongly committed to philosophical realism. This commitment is best expressed in a continued adherence to the traditional indicia of scientific method. Scientists need to continue to insist that for knowledge to be scientific, however it was generated, it be justified on the basis of indicia that control for the effects of chance, systematic bias and confounders; that the data be replicable by as wide a cross-section of the scientific community as possible; and that scientists, in doing science, practice what Richard Feynman called "a kind of scientific integrity, a principle of scientific thought that corresponds to a kind of utter honesty - a kind of leaning over backwards ... to report everything that you think might make [your results or opinion] invalid."

     What this scientific integrity amounts to can be best illustrated by the following: Not long ago, phrenology was considered by some to be a branch of science. Phrenology, for those who don't know, is the study of the bumps and nobs and shape of human skulls. Phrenologists believed they could tell how intelligent someone was merely by examining the shape of the cranium. They took their discipline very seriously; indeed, they believed they were the Galileo's of their day. To them, of course, phrenology was "science." Not surprisingly, many who were not phrenologists thought phrenology was mischievous nonsense. (As in most systems of make-believe science, a strong ideology is at the bottom of it all.)

     One skeptic decided to do what all good skeptics are wont to do - apply a little scientific method to these grand phrenologic claims. The plan was to have the most distinguished phrenologist of the time inspect a skull represented to be that of an imbecile, and explain based on the principles of phrenology how he could know it belonged to an imbecile. However, unbeknownst to the phrenologist, the skeptic gave him the skull of Laplace, the great French mathematician. Laplace was a genius, in any age; no imbecile he. Well, of course, the phrenologist failed the test, describing Laplace's skull, after judiciously caressing its nobs and bumps, as truly that of an imbecile. Imagine his chagrin when he was informed of the hoax. And old Laplace, imagine his disembodied glee, outwitting others even in death.

     Scientific method works; judges should insist that its use underpin the scientific evidence proffered in their courtrooms. Besides insisting on respect for the scientific method, we all can do something else to promote rationality: Elect governors averse to appointing judges who are political activists, and continue to hope that the light of the Enlightenment is not just that from a small break in the clouds.
 

     The views expressed in this article are those of the author, and do not necessarily reflect the views of O4R, the O4R Board, or the Pro Facto staff. The editorial staff acknowledges the highly political nature of this material and invites your comments, views and opinions on the problems of the use of junk science in the courts.