The avalanche of litigation over silicone breast implants provides the most recent example of the gap between science and judicial "fact" finding.
The embarrassing fact is that American judges and juries often do a poor job when asked to handle technical, scientific or mathematical issues. In mass tort cases or serial litigation of a particular injury claim, there is a pattern of a very long learning curve on the part of our courts.
If history is a reliable guide, we can expect that at some point in the future, there will be a decisive court finding -- finally based on sound science -- that silicone breast implants do not cause disease. But that will not happen before thousands of cases are decided the wrong way, billions of dollars are awarded in settlements and good companies have gone bankrupt.
In the 1970s and early 1980s, obstetricians were routinely sued for cerebral palsy in newborns which plaintiffs charges was caused by obstetricians' use of excessive pressure during forceps delivery. These cases often resulted in large verdicts or large settlements. The use of forceps declined and the malpractice insurance premiums for obstetricians climbed. Almost a decade after this kind of litigation peaked, long-term studies and surveys emerged demonstrating that there is not, nor has there ever been, a statistical link between forceps use and the incidence of cerebral palsy. In short, these doctors got hammered for something they didn't do.
General Motors endured almost a decade of litigation over the alleged design flaw in the X-car chassis that was used in several GM models. The theory was that improper weight distribution and brake design caused these vehicles to swerve on damp roads resulting in side-on collisions. A study by the Department of Transportation, years in the doing, was released in 1988 that compiled virtually every accident in the United States by vehicle make and road conditions. It revealed that the X-cars were involved in side-on collisions less often than a dozen other models and slightly less often than average. The X-car litigation evaporated after the study -- but not before hundreds of large verdicts and settlements were levied against the automaker.
Bendectin, an effective drug widely prescribed for pregnant women suffering from morning sickness, was for more than a decade blamed for causing birth defects. Again, only after numerous verdicts and settlements did the courts gradually catch up with scientific reality. The published, peer-reviewed studies ambiguously prove there is no link between Bendectin use and birth defects.
These cases are not exceptions. They reflect the reality that American courts are simply not equipped materially, procedurally or philosophically to handle highly technical issues, whether they arise in the context of personal injury claims, the environment or intellectual property.
In fact, there is a predictable rhythm to these mass tort or serial tort cases:
From the first wave of claims in 1992 -- prompted by the ill-advised public comments by David Kessler, head of the Food and Drug Administration, about the safety of silicone implants -- it took less than three years for new definitive studies to emerge. To date, more than 20 studies in six countries involving hundreds of thousands of women have all confirmed that there is no discernible link between silicone implants and disease.
Over time, this knowledge will teach the general public and the mass tort climate surrounding breast implants will change. Plaintiffs will begin to lose motions concerning the admissibility of questionable expert testimony that contradicts the actual science of the case. Jurors may be more skeptical and also sense the skepticism of the judge.
When the cycle is complete, these lawsuits will dissipate -- but not before tens of millions of dollars are wasted in litigation costs and possibly billions of dollars in awards and settlements, all on the basis of the initial dubious model of causation.
The slow learning curve for science in our courts is a scandal, but it can be reformed without significant changes in law or procedure. The existing federal rules governing procedure and evidence clearly authorize federal judges to retain neutral experts for the purpose of educating the judge in needed scientific knowledge.
Federal judges may also bring these experts before the jury to educate the jury in the science of the case if the judge believes that jurors may be misled by the hired guns retained by the lawyers. In practice, however, only a tiny percentage of federal judges ever appoint such experts. At the state level, there is no comparable authority for state judges to hire their own experts in most states, so the use of neutral experts is virtually nonexistent.
There are two reasons for the reluctance on the part of judges to make use of third-party resources. One reason is money. Court resources are already strained with backlogs in most jurisdictions. Requests for court funds for experts will not be well received by court administrators and senior judges. However, the more significant reason is that judges believe that judicial involvement in this area is a violation of the principles of the adversary system. Scientific issues are a matter of "fact" not "law." Therefore, sorting out the truth is the jury's problem.
Within the fact and law distinction, and within the abiding faith in trial combat as a means to expose error, there is no balancing principle that says,"While it is indeed the jury's role to fit the facts of the case to the relevant science, it should never be the jury's burden also to decide which science to apply." If the jury lacks perspective in evaluating the models and theories of the hired experts, that ought to be regarded as a failure on the part of the judge and not evidence of mental deficiency on the part of the jurors. We need a new ethos of stewardship on the part of judges to give their jurors every opportunity to make genuinely informed decisions.
Today science is progressing at geometric rates in virtually every field. Even experts can stay fully current only in a few specialties at a time. Judges and juries can hardly be expected to be conversant with all the fields of science that enter courtrooms.
Given the integral policy-making effects of litigation in our system of law, it is imperative that courts have access to sound technical information and systematically make better use of it. The quality of our laws, our economy and our environment depend on it.
The billions of dollars paid to trial attorneys and to mass-tort plaintiffs end up being borne by the American consumer. A good investment on the consumer's behalf in the Congess' next installment of tort reform ought to be a system to fund the neutral experts these abuses cry out for. The cost to the economy at large would be small; the return to the consumer would be significant.
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