Junk Science in the Courtroom

Copyright 1997 The Washington Times
Reprinted with permission of
The Washington Times (December 18, 1997)


He smoked for eight years, his parents were smokers and his family had a history of lung cancer. But when he came down with lung cancer himself, a Georgia man blamed exposure to polychlorinated biphenyls (PCBs) for his health problems. This week the U.S. Supreme Court made a key ruling against him, but he wasn't the biggest loser. Trial lawyers and federal regulators share that honor.

At issue was a suit that a man named Robert Joiner filed in connection with his work as an electrician in Thomasville, Ga., beginning in 1973. He worked around city electrical transformers, doing repairs that sometimes required him to put his hands and arms in a liquid coolant. He alleged that sometimes the coolant splashed into his eyes and mouth.

In 1983 the city discovered that the coolant was contaminated with trace amounts of PCBs. In 1991, Mr. Joiner was diagnosed with lung cancer. The following year, he sued General Electric and Westinghouse Electric, manufacturers of the transformers, on grounds that his exposure to PCBs "promoted" his cancer, which otherwise might not have developed until years later, if at all. The companies argued he had no significant exposure to PCBs and that there was no scientific evidence to suggest such exposure would promote cancer anyway.

To support his claim, Mr. Joiner offered the testimony of expert witnesses who said they thought PCB exposure contributed to his health problems. Various animal and epidemiological studies, the experts said, supported their conclusions.

But federal district Judge Orinda Evans tossed out the animal studies on grounds that they were unrelated to Mr. Joiner's problems: Where infant mice received high-dose injections of PCBs directly into their stomachs, Mr. Joiner, an adult, suffered only trace exposures to them. The mice and Mr. Joiner even developed different kinds of cancer. The judge also found that the epidemiogical studies had no bearing on Mr. Joiner and in some cases didn't even involve PCBs.

An appeals court reversed the district court, holding that Judge Evans abused her discretion by excluding such evidence from the trial; the judge should have left the reliability of the experts and their opinions to the jury.

But writing for an 8-member majority of the high court, Chief Justice William Rehnquist upheld not just the standard by which Judge Evans barred the so-called expert testimony but her reasoning for doing so in this particular case. "The studies were so dissimilar to the facts presented in this litigation that it was not an abuse of discretion for the District Court to have rejected the experts' reliance on them." And again: "A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered. . . . That is what the District Court did here, and we hold that it did not abuse its discretion in so doing."

The damage that this opinion does to the plaintiffs' bar is obvious. Trial lawyers have long relied on animal studies of dubious value to bring cases on everything from Agent Orange to breast implants to PCBs. Given the views of both the district court and the high court, they now have one less justification to do so.

But the biggest loser of all may the Environmental Protection Agency, whose entire regulatory scheme is based on animal studies. As Justice John Paul Stevens himself noted in his dissent, EPA "uses the same methodology to assess risks." Indeed it does, and advocates of sound science were quick to point out just how dependent the agency is on this flimsy practice. The Supreme Court, said the Washington-based Advancement of Sound Science Coalition, "ruled just this week that scientific evidence like that used to support the new air quality rules is not reliable enough even to be admitted as evidence in a court of law."

Regulators extrapolate the effects of high doses of alleged carcinogens in lab animals to low doses in humans, then write rules restricting their use or emission accordingly. It is this very process that set off one of the dumbest scares of all time over the use of the chemical Alar, which supposedly turned ordinary apples into the killer variety. Needless to say, the only death that might have resulted from Alar would have come from being trampled in the rush to throw out the apples.

This ruling should encourage regulators to worry about real health risks as opposed to the kind that come of fattening lab rats with absurd amounts of alleged carcinogens. The rats would be better for it, the courts would be better for it and so would the people in whose name regulators and trial lawyers claim to be acting.


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