Much has been written about the litigation explosion in recent years, including Peter Huber’s Liability: The Legal Revolution and Its Consequences. But Huber, a Senior Fellow at the Manhattan Institute, uses his latest book, Galileo’s Revenge: Junk Science in the Courtroom, to explore one particularly important facet of the perversion of modern tort law—what Huber calls “junk science,” the use of dubious experts and flawed research to generate huge verdicts.
Junk science, Huber writes, “is the mirror image of real science, with much of the same form but none of the same substance”—the astrologer versus the astronomer. While mainstream scientists are appalled by the resulting “hodgepodge of biased data, spurious inference, and logical legerdemain” as well as “outright fraud,” lawyers, he argues, have welcomed the opportunity for legal alchemy, turning “scientific dust into gold.” And courts, which once strictly limited expert testimony, have increasingly treated the most idiosyncratic witnesses like respected authorities.
Examples of what Huber terms courtroom malpractice are legion. Decades ago came a string of lawsuits attributing cancer to bumps and falls. These cases died out, only to be replaced with suits blaming chemicals for causing cancer and other ills, cars for accelerating without reason, drugs for spawning a variety of ailments, and delivery procedures for inducing cerebral palsy. A Philadelphia psychic even won a million-dollar judgment as compensation for her alleged loss of powers due to a CAT scan. The judge tossed out that verdict, and defendants have won many other cases. But the social cost of junk science remains high: massive judgments, unending attorneys’ fees, lost product sales, drugs withdrawn from the market, and attention diverted from the real causes of most accidents and ailments.
Huber blames the growth of junk science on the shift in the 1960s and 1970s away from traditional common law rules in an attempt to “rationalize” tort law to better control the causes of accidents: “epidemiology, engineering, accidentology, or some other branch of conventional science would trace out for the jurist all the antecedent causes of a calamity,” however remote, allowing the courts to penalize the person or institution considered best able to prevent future harms. Unfortunately, Huber writes, this practice was “a prescription for bringing innumerable new scientific controversies into court,” along with ever more exotic experts and theories.
For instance, aided and abetted by the 60 Minutes TV show, lawyers and their hired “experts” unleashed a slew of lawsuits against Audi for the alleged “sudden acceleration” of its model 5000. The litigants eventually extended to Audi owners complaining that the adverse publicity had reduced the value of their cars. Alas, as Huber shows, no plaintiff ever proved a single instance of sudden acceleration. Indeed, in numerous cases there was clear evidence that the driver had mistakenly stepped on the gas pedal instead of the brake; and extensive investigation by the National Highway Traffic Safety Administration blamed driver error, not manufacturer defect, for “sudden acceleration.” Nevertheless, while Audi didn’t lose every case, it lost two-thirds of its U.S. sales—and thousands of consumers switched to cars with higher fatality rates.
Another continuing series of junk science cases involves charges against obstetricians alleging that improper delivery causes cerebral palsy in babies. Different lawyers choose varying, and often conflicting, theories, but enough juries accept the claims to make these cases “one of the most spectacularly lucrative enterprises known to lawyers, quite possibly the single largest revenue raiser in all of medical malpractice,” writes Huber. Although the best evidence seems to be that cerebral palsy results from factors during pregnancy rather than delivery, this litigation sweepstakes has yet to end.
Perhaps worst of all are the “chemical AIDS” cases, where doctors and scientists of dubious reputations have convinced juries to assess massive damages against firms for creating minuscule risks, risks far below those from lifestyle choices made by every individual every day. The courts haven’t been alone in their credulity: the federal government now admits that it may have greatly overestimated the dangers of dioxin, which has resulted in multimillion dollar legal judgments and settlements, when it evacuated the entire town of Times Beach, Missouri.
Huber ably details how the so-called clinical ecologists have committed scientific fraud in the courtroom, ascribing virtually every human ill to one chemical or another. Yet the facts are really not in dispute. Noted a 1986 assessment by the American Academy of Allergy and Immunology, “the idea that the environment is responsible for a multitude of human health problems is most appealing,” but there is no “satisfactory evidence to support” the claim. The advocates carry on, however, advancing religion rather than science. Observes Huber: “What most clearly characterizes the clinical ecologists today is their activist faith.”
The only answer to such zealotry is to return the courts to the pursuit of truth—“the rule of fact,” as Huber puts it. And this requires substituting good science for “the layman’s science of gut feel, the lawyer’s science of hunch and impression, science that ignores dosage and timing, science without numbers, science without rigor, science without the details.” Huber emphasizes that courts should be skeptical not of new research, but of work carried on outside of the mainstream scientific community. The issue, he explains, is “the methods behind a scientific report, not its finely detailed conclusions.” Raising the standards for professional witnesses would be eminently reasonable. As Huber observes: “If the law is capable of holding defendants to professional standards, it is capable of holding witnesses to the same.”
Obviously, even the “good science” that Huber lauds doesn’t offer certainty in every case. But it is far better—“vastly more accurate, reliable, stable, coherent, and evenhanded than the alternatives,” as Huber puts it. Moreover, the risk of mistake is far less than that which results from the “let-it-all-in” attitude that prevails in the courtroom today.
Ultimately, Huber argues, the issue comes down to the purpose of the courts. Russ Herman, president of the Association of Trial Lawyers of America, opines that the “courts are an institution established for the resolution of disputes, not arbiters of scientific truth.” Yet the purpose of resolving disputes should be to accurately ascertain the facts before fashioning a judgment. Holding careful doctors liable for a baby’s cerebral palsy, or a chemical firm liable for the harmless use of its product, may both resolve a dispute and enrich a litigant. But doing so doesn’t provide justice for the defendant or make society better off.
Indeed, Huber specifically rebuts the argument that we should accept questionable scientific claims in order to err on the side of safety. Not only is there no evidence that litigation has helped control accidents in anything but the most obvious cases, but junk science itself may be dangerous. For example, in many instances it makes no medical sense to pull asbestos out of old buildings.
Peter Huber has written an important book. Distorted liability rules have helped create an insurance crisis, drive doctors out of business, stunt commercial innovation, and redistribute wealth in perverse ways. Tort law run amok has also unleashed modern-day witch hunts, with auto companies, chemical producers, doctors, and drug makers among the primary victims. Many courts, writes Huber, essentially “sit back, let everything in, and invite random groups of twelve stout citizens to vote as they please.” The results of such a system are not pretty; the time for reform is now.
Doug Bandow is a Senior Fellow at the Cato Institute and a graduate of Stanford Law School. He is a member of the California and D.C. bars.