In the language of legalese, a tort is the connection between an injury and a wrongful act. Last week, a panel of esteemed scientists, reiterating scientific verdicts of nearly a decade, reported it found no proof a link exists between leaking silicone breast implants and disease. An injury, a wrongful act, but no tort.
Meanwhile, juries of non-scientists, the kind found in courtrooms, repeatedly have found no proof a link does not exist and have awarded millions in damages to women who have implants and, either as a matter of coincidence or causality, disease. Torts aplenty.
These differing outcomes spring from the difference between law and science. Both, at their best, are about the search for truth. But in law, the best truth available at the moment must be ascertained, a conclusion must be reached. If the crime is a harmful effect, such as immune-system disease, an alleged cause, such as leaky implants, is put on trial and the defendant is either convicted or acquited.
Science observes effect, explores causes, but has no deadline for making a connection. It seeks, but has no obligation to find. It can conclude that no conclusion has been reached, it can be a perpetually hung jury.
It’s when these two worlds collide that the trouble starts. It’s why, despite no proof of a link, silicone implants have been off the market for five years, why trials have ended with awards of up to $30 million, why the makers of implants have agreed to a $4.5 billion global settlement of a 400,000-member class-action lawsuit and why Dow Corning, the pioneer and leading manufacturer, is in bankruptcy.
Certainly, Dow Corning is far from blameless. While the company always warned there was no guarantee of no leakage, one of the first major damage awards, $7.3 million in 1991, came after the plaintiff produced boxes of internal company memos describing widespread problems — one even advised the sales force to wash and dry the seeping sacks in the nearest hospital bathroom before calling on surgeon customers. In the lab, it does not follow that a product that doesn’t work properly causes harm. In court, when a jury is forced to choose between a woman who survived breast cancer and the company that made her faulty implants, it can and often does.
Legal experts the explosion in class-action product liability lawsuits and astronomical damages, especially in medical cases, is due to the change in what is allowed as expert testimony. For decades, expert scientific testimony was based upon techniques generally accepted by the pertinent scientific community. That got turned on its head in a 1993 Supreme Court decision known as Daubert, from a pharmaceutical case, which has been interpreted, or misinterpreted, by lower courts as meaning expert testimony only has to be relevant to the case and given by someone who would be expected to have knowledge of the subject.
Thus, the rise of the scientific “hired gun,” the scientist who makes a living on the witness stand. Such as the Texas physician who brags about making $2 million a year testifying in implant trials, despite having nothing to offer other than an opinion that leaky implants could — maybe, perhaps — cause disease.
Product liability is a $100 billion industry, with medical products a favorite target. The pharmaceutical industry says the enormous damage awards it suffers stifle development of new drugs and drive up prices. Already the manufacturer of Viagra is being buried in litigation over the very side effects it fully warned customers might occur.
Tort reform has been discussed for years and numerous ideas are in play. One, proposed for complex science-based cases, would replace citizen juries with “blue-ribbon” juries of recognized experts. That is, the scientific defendant would be tried by a jury of scientific peers. Another would allow a judge to dispense with a jury altogether and decide the case in consultation with a panel of experts.
Georgia has tackled the problem from the financial side with a law allowing a judge to apportion up to 75 percent of punitive damages to the state. The plaintiff keeps all of the award that is compensation for actual harm, but the punitive windfall may not be so enriching. Ten other states have enacted similar laws.
No one wants a return of the days when reckless businesses ran roughshod over the powerless public, but there are legitimate concerns that the pendulum has swung too far the other way. As science and the law increasingly meet in the courtroom, it is more necessary than ever that they begin speaking the same language.
Comments
comments for this post are closed