Galileo’s Revenge
is actually an older book published in 1991, and the author has written
several since that time. But it is definitely must reading for both
scientists and lawyers. Peter Huber is believer in free markets and
works at the conservative Manhattan Institute. He is considered an
expert on liability lawsuits and clearly feels that courts have
mismanaged tort law by allowing spurious claims to move forward, often
resulting in huge monetary awards to plaintiffs on questionable science.
I suggest the reader quickly move beyond this motivation and seriously
consider the information that is put forth in the book.
The book
provides several chapters of example cases illustrating the abuse of the
courtroom by “experts” pushing specious, and often illogical,
scientific explanations for serious injuries or harm. He includes the
famous sudden acceleration cases in which the Audi 5000 was targeted as
inexplicably bursting forward even though the driver “had their foot
jammed on the brakes” (though nothing was shown to be wrong with car).
Also liabilities associated with accusations that obstetrician
mishandling of birth caused cerebral palsy (since proven false),
chemically-caused disease (most of which was shown to be untrue), cancer
caused by trauma (not true), the mosaic theory against Benedectin
(shown to be specious), and ignoring lifelong smoking to “prove”
asbestos caused cancer, etc. There are even cases won by plaintiffs
because they had real fear of living close to tuberculosis patients even
though there was no medical basis for such a fear. One could add other
examples that have occurred since publication of the book.
But
the real thrust of the book is how the courts have gotten away from a
landmark 1923 ruling (Frye), which “allowed experts into the courtroom
only if their testimony was founded on theories, methods, and procedures
‘generally accepted’ as valid among other scientists in the field.”
This held sway until the 1970s when expert testimony came to be allowed
“if scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact.”
According to Huber, at this point mainstream scientific consensus was no
longer a requirement, and any fringe theory could be advocated in the
courtroom even if it was in conflict with established scientific belief.
Together with liability insurance and the tendency to sue those with
deep pockets, Huber believes this accounted for many of the huge awards
being given to cases based on questionable, or even false, scientific
and medical testimony. He spends some time in each chapter describing
the unscrupulous “experts” that were hired to provide the needed
testimony in such cases.
This book predates the 1993 Daubert
ruling, which provided for standards of evidence to be used in court.
Daubert superseded the Frye standard of generally accepted by the
scientific community, and set a number of additional guidelines for the
court to use to determine scientific reliability: testable technique or
theory; known error rates of technique or theory; and methodology that
has been peer reviewed. These are similar to some of the suggestions
offered by Huber in his final chapters. He notes that “a scientific
fact is the collective judgment of a specialized scientific community.
Good science is defined not by credentials but by consensus.” He argues
that there must be careful development of rules for the admissibility
of legitimate evidence. There should be a scientific consensus on what
the data tell us, not some theory acceptable only to the expert on the
witness stand.
I highly recommend this book as a thought
starter for all scientists and lawyers. From here readers should move
on to more recent books on the topic. And consider Huber’s final words
as he suggests that “the best test of certainty we have is good science –
the science of publication, replication, and verification, the science
of consensus and peer review; the science of Newton, Galileo, and Gauss,
Einstein, Feynman, Pasteur, and Sabin; the science that has eradicated
smallpox, polio, and tuberculosis; the science that has created
antibiotics and vaccines. Or it is, at least, the best test of
certainty so far devised by the mind of man.”
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