Unfortunately, skillful lawyers hire experts who say anything and torture statistics to confess to everything. The result has been a rash of dubious mass 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 Mason University Law Prof. David Bernstein observes in a new article in the California Law Review: “phantom risk litigation feeds on political manipulation, baseless media scare stories, unthinking public outrage, and plaintiffs’ attorneys’ financial incentives to bring speculative but potentially highly remunerative cases.” Among the worst examples is breast implant litigation, which has become one of the great legal deluges in history, with thousands of women filing suit. An entire industry essentially collapsed as a result; Dow Corning was forced to file for bankruptcy protection. Debate over the issue, writes Bernstein, “reverberates in legal and political circles.” Yet hardly a day goes by without further evidence that the scientific case against silicone implants has collapsed. Not that that should come as any surprise. Bernstein’s essay reviews Marcia Angell’s “Science on Trial: The Clash of Medical Evidence and the Law,” which first appeared 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 Kessler made a purely political decision, one that was ably exploited by entrepreneurial attorneys.
Since then a score of serious, peer-reviewed studies conducted by researchers at such institutions as Harvard University, Johns Hopkins University, the Mayo Clinic, and the University of Michigan, among others, have found an insubstantial to nonexistent connection between silicone implants and disease. Moreover, one report concluded that as a group women who had received implants were not at higher risk to a variety of health problems.
Every major survey sparked by the legal deluge has gone the same way. For instance, last summer the European Committee on Quality Assurance and Medical Devices in Plastic Surgery reported that the evidence was “conclusive” that implants did not cause autoimmune or connective tissue diseases, and that “there is no scientific evidence” of other silicone maladies. These opinions were backed by a report from the Independent Review Group, established by the British government.
A four-member expert panel appointed by U.S. District Court judge Samuel Pointer reached a similar conclusion last December. It reported that “No association was evident between breast implants and any of the individual connective tissue diseases, all definite connective diseases combined, or the other autoimmune heumatic conditions.” None of this means that many, if not most, plaintiffs were not ill. But there is no evidence that implants are at fault. As Dr. Angell puts it: Women have “been told they might get sick because of the implants. They’ve developed symptoms that any women over 25 could develop.” Because the evidence was so overwhelming, the vast majority of court cases have gone for the defendants. But that doesn’t mean justice was done. As Bernstein points out, “sometimes a lawyer can win just by getting the game in play. Deterred by the possibility of large awards by unpredictable juries, high legal costs, and the notoriety of a trial, many defendants can be induced to offer huge settlements.” In the United States, it is too late to undo the damage suffered by implant makers. But judicial and legislative reform could prevent a repeat performance in another industry.
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 to nonscientific expert testimony.
Legislators also could help end abusive litigation. Perhaps the most important step would be to inaugurate the so-called English rule, which requires losers to pay the legal expenses of the winners. That way litigants relying on junk science would be held responsible for filing frivolous lawsuits.
A well-functioning liability system is critical for both a just society and an efficient economy. But a badly functioning one can have catastrophic consequences, as evidenced by America’s Decade of Junk Science.
