Under Attack: Testimony For Hire

Shanna H. Swan, a statistician from Berkeley, Calif., has caused a lot of executives sleepless nights. Over the past 14 years, the 56-year-old has taken the witness stand in about 50 cases against the makers of some of medicine's most notorious drugs and medical devices, including the antimiscarriage drug DES. "I'm not out to do in drug companies," she says. "I'm interested in finding out what the truth is."

Now, she finds herself in the midst of a courtroom drama playing out before the Supreme Court. Swan and experts such as her are at the heart of a legal war between Corporate America and plaintiffs' lawyers over the proper role of science in the courtroom. In the case, she and seven other experts were prepared to testify that Bendectin, an antinausea drug taken by pregnant women, causes birth defects. But the parents of Jason Daubert and Eric Schul-ler--both born with limb defects--lost their suit against Bendectin's maker, Merrell Dow Pharmaceuticals. A fed-eral appeals court didn't buy their experts' studies because they weren't "generally accepted" in the scientific community. The high court will now rule on when such testimony should be allowed in the nation's courtrooms.

The stakes are high--for victims and companies as well as for expert witnesses. Innovative science has spawned scores of injury suits and helped propel product-liability litigation in the U.S. The cases may ensure that justice is done. But the cost of fighting them--and even of vindication--can be staggering.

Plaintiffs argue that any relevant evidence from a qualified witness should be allowed. "All these cases start out from the mavericks," says Aaron M. Levine, a Washington plaintiffs' attorney. Companies, though, want to open the door only for accepted theories. The fight has taken on political dimensions as lawyer-bashing conservatives charge liberals with undermining the competitiveness of U.S. companies with frivolous suits.

One reason that untested ideas are aired in court, such critics charge, is the lucrative expert-witness industry. Virtually anyone with a degree can become an expert witness, no matter how valid his or her theories. Critics say serious scientists prefer the lab to court.

But lawyers who hire Swan, the chief of reproductive epidemiology at the California Health Services Dept., value her skill at simplifying complex science for the jury. Swan considers the legal jobs part of her public-health work but says she never testifies in areas that she is researching for the state. Swan doesn't view herself as a crusader and, in fact, has testified for companies.

DRASTIC ACTION. She was an unknown researcher when lawyer Robert S. Schlifkin first asked her to testify in 1979. He wanted a medical statistician to bolster his case against E.R. Squibb & Sons Inc., a DES maker. He asked Swan because of her research on contraceptives for Kaiser Permanente Medical Center in Walnut Creek, Calif. Although she hadn't studied DES, she accepted. Soon, Swan advertised her services in a law publication. Swan says she was responding to a solicitation but soon canceled the ad after it got no response.

When Barry J. Nace, the Dauberts' attorney, lined up Swan and the others to testify against Merrell Dow, he faced an uphill battle. Most scientific literature concludes that Bendectin does not cause birth defects. Despite the studies, and the Food & Drug Administration's approval of the drug in 1956, lawsuits forced Merrell Dow to pull the product 10 years ago. The Kansas City (Mo.) company took that drastic action even though it has never paid damages to any of the 2,000 or so people who have sued it over the drug.

Swan's credentials impressed Nace. A PhD statistician who trained at the University of California at Berkeley, she's a part-time lecturer at its School of Public Health in addition to her state job. She charges $175 an hour for consulting and $275 an hour for testifying. Such fees account for 20% of her income, but less than 10% of her time.

In the Supreme Court case, Swan never testified because the trial judge dismissed the suit. But other Bendectin suits display her methods. Swan's strategy is to pick apart a study by the Atlanta-based Centers for Disease Control, which found little evidence that the drug causes birth defects. Her conclusions--unlike most of the 30 other pro-Bendectin studies she has critiqued--have never been published as a full article.

Swan's main tactic is to try to poke holes in the CDC's methodology for measuring the risk of birth defects. She argues that the agency undercounted the number of mothers exposed to Bendectin during the first trimester of pregnancy. To boost the exposed group, Swan includes in her analysis women who took different drugs, such as Vicks Formula 44 and Nyquil, that contained one of Bendectin's active ingredients.

Her results showed that children of mothers who had taken Bendectin's active ingredients in the first trimester have, on average, a 20% greater risk of birth defects and an 80% to 90% greater risk of limb reductions, in particular, than women who didn't take it. But those conclusions contradict most other studies. Even some of the plaintiffs' lawyers have their doubts. Defense lawyers attack Swan directly. "She skews the analysis to fit her testimony," charges Robert L. Dickson, Merrell Dow's attorney. "I think that's charlatanism."

SKEWED SCIENCE? He charged in an earlier Bendectin case that Swan fails to apply her methods evenly. For instance, she didn't scrutinize DES studies showing the drug is a carcinogen as critically as she did Bendectin studies. Swan says her methods vary depending on the evidence linking the drug and the disease.

Plaintiffs' experts such as Swan aren't the only ones who betray biases, though. Lawyers who hire them say mainstream science is funded by corporations and is just as skewed. In one instance, Nace found a 1982 Merrell Dow memo showing a $500,000 payment to Dr. A.G. Hendrickx, a birth-defects expert, to research Bendectin for the defense. Hendrickx says the research--which showed that the drug did not cause birth defects in monkeys--could not be manipulated. Just as Swan picked apart Bendectin studies to bolster her conclusions, defense experts dissected unfavorable DES studies (table).

As technology advances, judges and juries, untrained in science, are struggling to understand issues that form the foundations of many legal decisions. They would get needed help if the Supreme Court sets a threshold for admitting scientific evidence. Still, a more lasting solution may lie beyond the courts. If victims are compensated from sources besides lawsuits--such as a special fund--courts wouldn't be as tempted to create bad law by accepting controversial science.