Putting Science On Trial

All Joyce Daubert and Anita DeYoung wanted was a little justice. The two California mothers believed their children's birth defects--one was born without a hand and another with an abnormally short arm--were caused by Bendectin, an anti-nausea medicine they had taken during pregnancy. Like thousands of other women who took Bendectin between 1957 and 1982, they wanted Merrell Dow Pharmaceuticals Inc. (now Marion Merrell Dow Inc.) to pay for putting an unsafe product on the market.

But their hopes--and allegations--collapsed after a decade-old campaign. A federal appellate court threw their case out this January, ruling that it could not be supported by any valid science. The court blasted plaintiffs' experts for offering skimpy evidence that was dismissed by the larger scientific community. "The only review the plaintiffs' experts have received has been by judges and juries," wrote the court. "It's as if there were a tacit understanding within the scientific community that what's going on here is not science at all, but litigation."

TOUGHER CLIMATE. The Bendectin case, and the court's scathing analysis of it, illustrates the tough new scrutiny science is under in the courtroom. Whether it involves Bendectin, or links between silicone gel breast implants and disease, or computer keyboards and repetitive-stress injuries, judges are questioning the soundness of science in a growing number of cases (table). They are also giving the boot to cases before trial when they find expert testimony inadequate. "It's difficult to separate the wheat from the chaff," says San Francisco product-liability defense lawyer Kevin Dunne. "But judges are starting to exercise more control over science."

Plaintiffs and defendants are cheering the trend because it may keep the most dubious claims from reaching juries. For instance, in a case that was later overturned, a psychic was awarded $1 million after claiming she lost her special abilities following a CAT scan. "What had been passing as science in the courtroom was laughable," says Chris Parks, a plaintiff lawyer in Port Arthur, Tex.

The tougher climate will most affect the plethora of legitimate cases making their way to trial. In the litigation over the effects of silicone breast implants, the Norplant contraceptive device, and tobacco, for example, both sides will feel added pressure to deliver the goods on their claims. "Before you transfer money from one party to another, you best be sure there's scientific evidence to back it up," says product-liability expert Victor E. Schwartz.

That's not as easy as it sounds, since science can take years to develop and can be manipulated. And simply because one judge thinks some science falls short doesn't mean the lawsuit in question is unjustified and wouldn't fare better in another court. In the end, the new rules are likely to tilt in favor of deep-pocketed corporate defendants, who have the money to back studies and fund drawn-out disputes over evidence.

The stricter treatment of so-called junk science began with the Bendectin case, which led to a landmark Supreme Court ruling in 1993. That's when the high court created a new standard for evaluating expert testimony. Among the criteria judges were told to consider: whether a scientific theory has been properly tested; whether it has been subjected to peer review; and whether it has been published in a reputable scientific journal. Though the ruling applies only to federal cases, several states, including Texas and Louisiana, have jumped on board. "It was not intended to mean that all but Newton's three laws of motion get kept out of court," says Harvard University law professor Charles Fried, who argued the case. "What it has meant is that totally speculative, unsubstantiated, fringe science has had a hard time getting into court."

Until the ruling, judges had been reluctant to exclude expert testimony from trial, preferring instead to allow a jury to weigh its value. For 70 years, experts had testified as long as their theories or research techniques were generally accepted within the relevant scientific community. But in the first year since the high court set the new rules, evidence was barred in nearly two dozen cases alleging everything from ibuprofen causing kidney disease to Retin-A leading to birth defects, according to a study done by George Mason University School of Law professor David E. Bernstein.

Already, corporate defendants have beat back potentially devastating claims against them. Cellular-phone companies and utilities have flattened cases alleging that radiation from their products causes cancer. Computer keyboard makers have won rulings in cases alleging links to repetitive-stress injuries. Drug companies, too, have had some success. In one suit against Whitehall Laboratories Inc., the maker of Primatene asthma medication, all five of the plaintiff's experts were disqualified.

Surprisingly, it's not just doctors and scientists facing more grueling reviews. Economists, engineers, accountants, and other professionals are also getting grilled. In a Louisiana case earlier this year against Volkswagen of Germany, a $2 million verdict in a wrongful-death suit was set aside after an appellate court labeled as unreliable the testimony of three engineers about design defects in a car seat.

The court picked apart the qualifications of one engineer, who had testified on behalf of plaintiffs in several other automobile lawsuits. "Though he may have a generalized understanding of the mechanics of auto design, he could not make the necessary scientific or mathematical calculations upon which to base his theories," the court wrote, noting that the engineer received two Ds and an F in school. The case is on appeal.

Plaintiffs may hail the more demanding standard, but they fear that judges will take it too far. They question whether jurists should play such pivotal roles in issues they don't fundamentally understand. In the Bendectin case, for instance, plaintiffs say their experts are renowned scientists whose conclusions are based on sound principles. "It's a basic scientific question best answered by scientists," says Mary F. Gillick, a lawyer for plantiffs Daubert and De-Young who on Aug. 1 asked the Supreme Court to review the case. "I don't think a court should be saying differently."

DUELING DATA. Particularly worrisome to plaintiffs are cases in which multiple studies clash, and victims have little time for the scientists to sort them out. In the breast implant litigation, for example, recent studies cast doubt on a connection between the implants and maladies suffered by women, bucking other experts' contention that a link exists. Plaintiffs' lawyers say the new research is flawed because it focuses on known diseases while their clients suffer from not-yet-diagnosed illnesses. "The current image is that silicone doesn't cause any disease," says plaintiff lawyer Michael L. Williams. "But the studies haven't been looking for the right disease."

The desire for more proof has led trial lawyers working on breast-implant cases to consider funding a study of their own. At a July meeting in New York, lawyers wrangled over whether to bankroll new research to the tune of $175,000. Some counsel feared that, regardless of outcome, defendants would brand the research as tainted by trial lawyers' money. Others argued that the group would gain more than they would lose. "Halitosis is better than no breath at all," said one lawyer. The issue was left unresolved.

All the fuss makes one thing clear: Evaluating science in the courtroom instead of the lab is a difficult endeavor, particularly when millions of dollars are on the line. The results are rarely black and white. "We're not looking for cosmic truth," says law professor Bernstein. "We're looking for the best evidence at hand." For the moment, that's about as close as the courts may be able to get to justice. For Daubert and DeYoung, it's still not close enough.

Giving `Junk Science' the Boot

FUNGICIDES The Texas Supreme Court in June dismissed a case against DuPont, finding that an expert's testimony was not grounded in sound science. Plaintiffs alleged that DuPont's fungicide Benlate had damaged their pecan orchard.

CARPAL TUNNEL SYNDROME A federal judge in May barred testimony of two doctors linking use of a computer keyboard made by Unisys to carpal tunnel syndrome, saying the doctors used unreliable methodology.

BRAIN TUMORS AND CELLULAR PHONES A federal judge in May threw out a case against NEC in which the plaintiff alleged that cellular-phone use caused his wife's brain tumor. An expert's testimony was ruled inconclusive.

BIRTH DEFECTS A U.S. District Court last year threw out expert testimony contending that birth defects were caused by taking Primatene asthma medicine during pregnancy. The reason: Evidence was scientifically invalid.