Book Reviews

Junk science,Huber writes, "is the mirror image of real science, with much of the same form but none of the same substance"-the astrologer ver sus the astronomer. While mainstream scientists are appalled by the resulting "hodgepodge of biased data, spurious inference, and logical leg erdemain" as well as "outright fraud," lawyers, he argues, have welcomed the opportunity for legal alchemy, turning "scientific dust into gold." And courts, which once strictly limited expert testimo ny, have increasinglytreated the most idiosyncratic witnesses like respected authorities. Examples of what Huber terms courtroom mal practice are legion. Decades ago came a string of lawsuits attributing cancer to bumps and falls. These cases died out, only to be replaced with suits blaming chemicals for causing cancer and other ills, cars for accelerating without reason, drugs for spawning a variety of ailments, and delivery procedures for inducing cerebral palsy.A Philadelphia psychic even won a million-dollar judgment as compensation for her alleged loss of powers due to a CAT scan. The judge tossed out that verdict, and defendants have won many other cases. But the social cost of junk science remains high: massive judgments, unending attorneys' fees, lost product sales, drugs withdrawn from the market, and attention diverted from the real caus es of most accidents and ailments.

Huber blames the growth of junk science onthe shift in the 1960sand 1970saway from traditional common law rules in an attempt to "rationalize" tort law to better control the causes of accidents: "epidemiology, engineering, accidentology, or some other branch of conventional science would trace out for the jurist all the antecedent causes of a calamity," however remote, allowing the courts to penalize the person or institution considered best able to prevent future harms. Unfortunately, Huber writes, this practice was "a prescription for bringing innumerable new scientific controversies into court," along with ever more exotic experts and theories. For instance, aided and abetted by the 60 Min utes TV show, lawyers and their hired "experts" unleashed a slew of lawsuits against Audi for the alleged "sudden acceleration" of its model 5000. The litigants eventually extended to Audi owners complaining that the adverse publicity had reduced the value of their cars. Alas, as Huber shows,no plaintiff ever proved a singleinstance of sudden acceleration. Indeed, in numerous cases there was clear evidence that the driver had mis takenly stepped on the gas pedal instead of the brake; and extensive investigation by the National Highway Traffic Safety Administration blamed driver error, not manufacturer defect, for "sudden acceleration." Nevertheless, while Audi didn't lose every case, it lost two-thirds of its U.S. sales-and thousands of consumers switched to cars with higher fatality rates.

Another continuing series of junk science cases involvescharges against obstetricians allegingthat improper delivery causes cerebral palsy in babies. Different lawyers choose varying, and often con flicting, theories, but enough juries accept the claims to make these cases "one of the most spec tacularly lucrative enterprises known to lawyers, quite possibly the single largest revenue raiser in all of medical malpractice," writes Huber. Although the best evidence seems to be that cere bral palsy results from factors during pregnancy rather than delivery,this litigation sweepstakes has yet to end. Perhaps worst of all are the "chemical AIDS" cases, where doctors and scientists of dubious rep utations have convinced juries to assess massive damages against firms for creating minuscule risks, risks far below those from lifestyle choices made by every individual every day. The courts haven't been alone in their credulity: the federal govern ment now admits that it may have greatly overes timated the dangers of dioxin, which has resulted in multimillion dollar legal judgments and settle ments, when it evacuated the entire town of Times Beach, Missouri.

Huber ably details how the so-called clinical ecologists have committed scientific fraud in the courtroom, ascribing virtually every human ill to one chemical or another. Yet the facts are really not in dispute. Noted a 1986 assessment by the American Academy of Allergy and Immunology, "the idea that the environment is responsible for a multitude of human health problems is most appealing," but there is no "satisfactory evidence to support" the claim. The advocates carryon, however, advancing religion rather than science. Observes Huber: "What most clearly character izes the clinical ecologists today is their activist faith." The only answer to such zealotry is to return the courts to the pursuit of truth-"the rule of fact," as Huber puts it. And this requires substi tuting good science for "the layman's science of gut feel, the lawyer's science of hunch and impres sion, science that ignores dosage and timing, sci ence without numbers, science without rigor, sci ence without the details." Huber emphasizes that courts should be skeptical not of new research, but of work carried on outside of the mainstream scientific community. The issue, he explains, is "the methods behind a scientific report, not its finely detailed conclusions." Raising the stan dards for professional witnesses would be emi nently reasonable. As Huber observes: "If the law is capable of holding defendants to profes sional standards, it is capable of holding witnesses to the same."

Obviously, even the "good science" that Huber lauds doesn't offer certainty in every case. But it is far better-"vastly more accurate, reliable, sta ble, coherent, and evenhanded than the alterna tives," as Huber puts it. Moreover, the risk of mis take is far less than that which results from the "let-it-all-in" attitude that prevails in the court room today. Ultimately, Huber argues, the issue comes down to the purpose of the courts. Russ Herman, presi125 dent of the Association of Trial Lawyers of Amer ica, opines that the "courts are an institution estab lished for the resolution of disputes, not arbiters of scientific truth." Yet the purpose of resolving dis putes should be to accurately ascertain the facts before fashioning a judgment. Holding careful doctors liable for a baby's cerebral palsy, or a chemical firm liable for the harmless use of its product, may both resolve a dispute and enrich a litigant. But doing so doesn't provide justice for the defendant or make society better off.