Thursday, August 14, 2014
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 Daubert superseded the Frye standard of generally accepted by the scientific community, and set a number of additional guidelines for the court to use to determine scientific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.”