Closing the door on junk science.

• Author: Preuss, Charles F.

THE OUTCOME of mass tort litigation often hinges on scientific evidence. In recent years, scientific testimony was often permitted without first being tested for the soundness of the science being discussed. Plaintiffs argued that the law need not await final scientific conclusions before allowing their experts to posit the merit of their untested theories. Despite instructions to the contrary, juries were left to speculate on the credibility of these unproven hypotheses. Junk science prevailed, and the law raced ahead of science in the courtroom.

Abdication of responsibility

In her book Junk Science on Trial, Marcia Angell, the distinguished executive editor of the New England Journal of Medicine, decried the judicial system's abdication of its responsibility to incorporate the laws of science into the courtroom during the early years of the breast implant litigation. Rather than requiring appropriately controlled epidemiologic studies showing a relative risk greater than 2.0, plaintiffs were permitted to rely on anecdotal reports and case series in their efforts to persuade juries to decide that systemic illness in women was causally related to their silicone breast implants.

Science not as it is, but as it might evolve, was applied in these instances. Now that an abundance of published epidemiologic studies have demonstrated the absence of this purported causal connection, courts are awakening to the importance of sound science in the courtroom.

Access to sound science

In an address at the annual meeting of the American Association for the Advancement of Science on February 16, 1998, U.S. Supreme Court Justice Stephen G. Breyer observed that society's increased dependence on science for its well being underscores the law's need for access to sound science. Faced with cases of questionable mental illness, disputed paternity and alleged carcinogenicity of toxic substances, courts must draw upon scientific wisdom to reach just results. Using the example of an alleged toxic substance, Justice Breyer noted the importance of scientific accuracy in the courtroom to earn society's respect for the judicial system.

In Justice Breyer's words, the "upshot is that we [courts] must search--not for law that frees companies to cause serious harm, nor for law that forces them unnecessarily to abandon the thousands of artificial substances upon which modem life depends. Rather, ... we [courts] must search for law that recognizes scientific validity."

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