Saturday, February 10, 2007

How It Works

Our elected (and appointed) officials in Washington and in the various state offices of the country perform their functions in the midst of a plethora of offerings and influences which significantly impact their official actions to the ultimate detriment of the people they are chosen to represent. What follows is my recount of a significant event in which I was involved which has radically changed American tort law:

Barry Nace, a highly regarded lawyer, was the president of the American Trial Lawyers Associoation (ATLA) in the year in question (late 80s). Barry and I were heavily involved in many cases in which the drug Bendectin was contended to be the cause of limb defects in children born of mothers who ingested the drug during the critical period of limb development in the first trimester of pregnancy. In late spring of the year of his presidency, Barry called me and asked if I would participate in his place in a panel discussion at Yale Law School on the subject of science in the courtroom. Upon agreeing to do so, I was sent a large packet of materials which included, among others, a detailed essay by Peter Huber on his favorite subject, so-called 'junk science'. The schedule called for an hour long presentation by Mr. Huber on this topic and I was to be given five minutes to respond.

The audience was an interesting makeup; three hundred (300) federal judges brought to the Yale Conference Center by the Aetna Insurance Company, wined and dined, housed and flown by first class air. I paid my own way,stayed in an out-of-the way hotel room and was not invited to any of the three dinners and lunches sponsored by Aetna for the judges. At the conference itself, I was the only plaintiff's attorney on the premises, the other speakers being law school professors and the like. Chief corporate counsel for Aetna began the proceedings by emphasizing to the august collection of attendees (with a wink and nod) that the mere fact that Aetna was the sponsor should not unduly influence them in the consideration of the various presentations.

Huber, a lawyer and subsequent author of the book, Galileo's Revenge: Junk Science in the Courtroom, had as his thesis the contention that juries are typically manipulated with emotional arguments to aid the plaintiff's case and that the science used to present plaintiff's cases in diverse areas such as brain damage obstetrical cases and Bendectin was unscientific and not worthy of being presented. I had (barely) the time to make the point that in Bendectin cases, for example, the plaintiff's proof consisted of detailed scientific research from a plethora of discplines (microbiology, vertebrate embryology, pharmacology, epidemiology, etc.) and succinctly made the point (as was constantly reiterated in courtrooms throughout the country before and after this conference) that no one area of science had all the answers as to what causes human birth defects and that it was necessary to consider and integrate all areas of science when addressing the question.

The fallout of this conference, from that weekend forward, has seen the ARROGANT PRESUMPTION OF THE FEDERAL JUDICIARY that they know more about science in terms of its implications to human health than do scientists who have devoted their lives and careers to finding answers using the scientific method. Federal judges throughout the land began dismissing cases out of hand as based on "junk science" in a rapidly growing collection of laughingly ignorant decisions. As an example, the opinion of the fifth circuit court of appeals in Brock versus Merrell Dow set aside a substantial verdict oof miine on behalf of a little girl born without a hand, which included punitve damages, against Merrell Dow. The appellate court opinion stated that I needed to prove by epidemiology alone that it was scientifically certain that Bendectin causes birth defects. Conveniently overlooked, but considered by the jury as part of my trial proofs was the fact that epidemiology doesn't ask and answer questions like this. In other words, no single area of science can and should be relied upon to the exclusion of other areas of scientific discipline. Subsequently, the U.S. Supreme Court in Daubert versus Merrell Dow Pharmaceuticals, a Bendectin case in which I co-authored an amicus brief on the subject of epidemiology, gave federal district court judges the role of being the "gatekeeper" for keeping out questionable scientific evidence and established a list of criteria that judges could use to make such a determination. Kind of like sending a high school kid to the grocery store with a shopping list and then claiming that the kid had the expertise to evaluate a French chef's culinary effort. What followed is that the phrase "junk science" has become firmly embedded in the lexicon of legal lore.

What has also followed has been the abrogation of common sense. Even the high school kid with the shopping list knows that if the oxygen supply to the brain is cut off for a while, brain damage will result. But a series of amateur scientists (judges) urged on by the insurance industry (let me see, is Aetna an insurance company?) require epidemiological evidence to prove that allowing a woman to progress in labor an extra hour or two in the presence of documented fetal distress so that the obstetrician can catch a couple of hours of sleep can damage the brain of the child.

It took me a long while to connect all the dots including observing the conduct of the current adminstration to understand how important of an issue this is, the influence of money on the acts of our officials. Quite simply put, this is how it works.

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