This dynamic is and always has been present in jury trials, and every trial lawyer knows it. Jury trials are ultimately a contest between truth and rhetoric, in which rhetoric often has the advantage. The validity of any jury trial system depends, then, on its ability to develop and implement evidentiary rules that neutralize this advantage, i.e., that gives truth an even chance against flimflam.
In his book Galileo’s Revenge, Peter W. Huber presents us with compelling evidence that the American judicial system is regularly failing this test, at least in one important category of modern cases. The cases about which Huber writes are those in which “expert” witnesses use “scientific theories” to establish the defendant’s liability. Historically, the use of such testimony was allowed only where the proponent of it could show that (1) the witness who offered the testimony was properly “qualified,” and (2) the theories of causation about which the witness testified were accepted as valid in the mainstream scientific community. This test was designed to assure that the person the jury was looking up to as an expert was indeed qualified for this position and that the expert did not bamboozle the jury with wild scientific theories the jurors were not capable of sorting out themselves.
The test came under fire, however, almost as soon as it was adopted. As Huber explains, lawyers (usually those in search of huge contingency fees) argued that the second part of the test was unfair because it excluded “cutting edge” science and technology from the courtroom. When it was pointed out that the test also excluded charlatanism and that “cutting edge” science and technology were extremely rare in the courtroom anyway, they responded by arguing that the jury trial, being adversarial in nature, is self-correcting. “Don’t worry, when push comes to shove,” they argued with crossed fingers, “reason will prevail.”
This argument is weak because it is naive, or if not naive, disingenuous. It fails to acknowledge the age-old lesson about the appeal of false rhetoric, a lesson that applies with special force when science enters the picture. Forgetting (ignoring?) that lesson, the courts have abandoned the requirement of mainstream scientific acceptance and, in the process, have allowed the snake-oil salesmen into the courtroom. Huber’s book shows us that this has had regrettable consequences, both economically and judicially.
Huber argues that “junk science,” as he calls it, leads to wrong verdicts, which in turn leads to diminished respect for and confidence in our judicial processes. For example, Audi was found liable and was ordered to pay millions of dollars for “sudden acceleration syndrome,” a phenomenon that only exists in the minds of motorists who cannot distinguish the brake pedal from the accelerator; doctors were found liable for cerebral palsy allegedly caused by oxygen deprivation during birth, even though scientists now generally agree that most cerebral palsy babies are doomed long before an obstetrician comes near them; Bendectin was blamed for thalidomide-like birth defects even though no credible scientific evidence exists that connects the drug with pre-birth injuries. The examples go on and on. Huber makes it clear why this is happening: There is money to be made.
The lawyers who use “cutting edge” experts deny, however, that money is their sole motivation. They argue that they serve an important public-policy function by taking to task manufacturers, doctors, and others who pose a potential personal injury threat. That the system rewards plaintiffs’ lawyers handsomely for doing so should be viewed, they argue, as a plus, since it all but guarantees that potential defendants will be forced to “face the heat.” The result, they claim, is a better and safer world.
But this argument is bogus. As Huber explains, the market tends by its nature to correct defects in products:
Outside the courtrooms ... there are some strong incentives to get the science right. The pilot is always the first one at the scene of the airplane accident, the expensive plane is usually a total loss, and the ensuing publicity is terrible for business. Few people who sell lawn mowers or deliver babies build sustainable businesses by slaughtering their customers.
Just the opposite is true for plaintiffs’ lawyers: “The more successfully lawyers sell junk science, the more customers they will have.”
The point is that lawyers are rewarded for selling bad science, which by definition cannot help eliminate real product dangers (unless by pure accident), while manufacturers are not rewarded for substandard products. Moreover, bad science upsets the natural corrective forces of the market by creating arbitrary disincentives for manufacturers whose products, although found to be defective by a jury, are otherwise demonstratively safe.
The loser in all this is not only the manufacturer, but also the consumer –think, for example, of all the car buyers who chose cars less safe than an Audi because they mistakenly believed the diatribe about “sudden acceleration syndrome.” If Audi is driven out of the market (it lost two-thirds of its market share and is now hanging on by its fingertips), the only winners will be the claimants and their lawyers who pocket millions of dollars while boasting about saving the public from a danger that never existed in the first place. No matter how the personal injury lawyer tries to spin it, that is not just.
Huber offers a simple solution–go back to the old evidentiary rule that disallowed the use of scientific theories not accepted as valid in the mainstream scientific community. In other words, no more snake-bite medicine for the jury. The rule would be, as it formerly was, effective and easily implemented. And the minute chance that it might operate to exclude tomorrow’s Galileo is easily outweighed by the fact that it will in the meantime prevent repeated and catastrophic injustice.
Huber’s book promises to bring this problem out of the protective fold of the legal world and into the public arena. Whether it will change legal policy remains to be seen, but the force and reason of his work demonstrate convincingly that change is long overdue.