Bad science only makes bad laws

by Ellen Goodman
Copyright 1998 Times Union (Albany, NY)
Tuesday, February 24, 1998

BOSTON -- Sometimes after the smoke clears and the dueling experts have put their guns away, the most injured body left on the courtroom floor is the one called science.

Maybe the case was about breast implants or DNA. Maybe the plaintiffs were wrangling over PCBs or plain old whiplash.

Maybe the experts were mercenaries with opinions for hire. Maybe the struggle was between science and it's evil twin, junk science.

Anyway you look at it, this familiar courtroom drama is the result of an era that is both high-tech and highly litigious. More and more frequently, a legal verdict about right or wrong hinges on a scientific judgment of true or false. Yet, judges and juries, the scientific laity that we count on for justice, often come to complex cases as poorly prepared as a sixth-grader faced with quantum physics.

Last week, Supreme Court Justice Stephen Breyer said it most simply when he told a meeting of the American Association for the Advancement of Science that "the law itself increasingly needs access to sound science. ..." The emphasis was on the word "sound."

"Courts must avoid that kind of serious scientific mistake which once led one court, for example, to hold that dropping an orange juice can caused breast cancer," he added, "they must aim for decisions that, roughly speaking, approximately reflect the scientific 'state of the art.' "

As science and the law come into contact and conflict, the courts need their own neutral experts. They need the scientific community to help separate the science from the fiction, they need to call on scientists the way they would call on tech services to load in some new software.

This is not an entirely new direction. In Supreme Court cases, the scientific community has long weighed in with "friend-of-the-court" briefs. In last year's right-to-die case, there were no less than 60 such briefs.

Five years ago, in Daubert vs. Merrell Dow Pharmaceuticals, the Supreme Court explicitly called on judges to act as "gatekeepers" of scientific information-keeping unreliable "evidence" out of the court.

Since then, notably in the controversy over breast implants, one judge asked four neutral experts to sit beside him througha trial. Another called on a panel to review the scientific literature and prepare a report for use as evidence.

Then just last December in a second Supreme Court case that strengthened the judicial gatekeeper role, Breyer urged judges to seek out specialists in pretrial conferences and hearings and through the appointment of special masters and trained law clerks.

All these moves come from the recognition that bad science makes bad law. Marcia Angell, the executive editor of the New England Journal of Medicine, has spoken out extensively. She says the courts are replete with "experts" who give "what is charitably called an educated guess."

It's not just dueling experts but dubious ones who are now common. As Angell says, "Science is not for hire, but some scientists are." Meanwhile the adversarial nature of the courtroom alienates many of the best scientists. They don't want to testify in a courtroom they regard as more like a theater than a lab. Indeed the process of arriving at a scientific conclusion is wholly different from the process that ends in a legal verdict.

Now the AAAS is taking a new step, one that received Breyer's blessing last week. The oldest scientific society has put together a pilot project which, when funded, will test the possibility of providing the courts with a slate of candidates to serve as neutral experts.

This Rolodex of respected scientists wouldn't speak for the plaintiff or the defendant but rather for the science. They would be available tojudges trying to "keep" the "gate" in complex cases involving anything from chemistry to computers.

All these moves toward science in the courtroom do not mean that verdicts would come from microbiologists or engineers. It would not mean the end of conflicting testimony. As anyone who has sat in on seminars about hormones, electromagnetic fields or psychosis can tell you, there is room for legitimate disagreement among respected researchers.

What we can do by bringing the lab and the courtroom closer together is to mute these old adversaries. We can bring a respect for scientific fact and method into the courtroom and a respect for the legal process into the world of scientists. Together we might even consign junk science to the junk heap.

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