Detox for Torts (Part I) - June 2003

			I.	Editor's Note: Detox for Torts	Carolyn Raffensperger
			II.	Detox for Torts: How to Bring Justice Back to the Tort System - Part I	Carolyn Raffensperger and Nancy Myers

I. Editor's Note - Detox for Torts

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By Carolyn Raffensperger Supreme Court decisions have made front-page headlines. In the last six months, the highest court of the land has taken on the pesticide Agent Orange, sodomy laws, and affirmative action. Other recent news detailed a pitched argument between trial lawyers and physicians about the nature of medical malpractice lawsuits. In many ways, this argument between doctors and lawyers deflected attention away from real problems that were quietly being manipulated by powerful interests to deny justice to people injured by toxic chemicals or faulty products.This issue of the Networker and the next one both deal with the courts and how they address a key environmental issue, toxic torts. Before you file this away in the "not good beach reading" category, consider this: the next toxic tort case may be about your injury. Will the courts be able to handle this fairly and provide justice? We would contend that they would not because of a whole series of decisions and activities that have occurred out of the public view. It is time for the environmental and public health community to take the courts seriously. We believe that a trenchant critique of the courts is in order. But we also believe that we need a vision for the courts for the 21st century. The courts have simply not been able to deal with 60 years of toxic chemicals. What will help set up a court system that can deal with emerging technologies, nanotechnology, biotechnology and robotics, to say nothing of constantly evolving information about toxic chemicals? What will ensure that the courts are part of the infrastructure for protecting public health and the environment rather than the best place for moneyed interests to undermine those protections? At SEHN we've been working for over a year to develop a critique and a vision for the courts. Here is a summary of some of our work.

II. Detox for Torts: How to Bring Justice Back to the Tort System - Part I

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By Carolyn Raffensperger and Nancy Myers During the last ten years, the courts, especially the federal court system and tort law, have undergone a quiet revolution. Few people outside the legal community are aware of the impact of these changes, but they affect everyone. Because of these changes, the courts can no longer be counted on to provide justice for those who have been injured by products and technologies. People are losing their right to sue, and when cases do reach the courts, plaintiffs find the deck stacked against them.The changes align with a political agenda that serves corporations at the expense of the public and the environment. This agenda has helped to create and exploit certain legal precedents and practices that favor corporate defendants in lawsuits. These practices: Put unprecedented power in the hands of judges, often bypassing juries. Allow finances to influence the election and appointment of judges who support this ideology; Keep information from the public that is potentially damaging to public and environmental health; Misuse and misinterpret science in ways that favor defendants over plaintiffs. Most calls for tort reform are aimed at implementing yet another item on this political agenda: limiting rights to sue and limiting the amounts of settlements. But this could throw the balance even further toward defendants. Today, plaintiffs face nearly insurmountable hurdles in making their cases, and even when plaintiffs are awarded judgments, settlements are often delayed interminably.The tort system is broken. Tort reform is indeed needed, but not the kind of reform that is making headlines today. The tort system must be restored to its original intent--to provide justice through a system that gives equal consideration to plaintiffs and defendants. A more just tort system would: Create incentives to prevent harm rather than reward failure to exercise care; Open court proceedings in ways that protect the public good rather than building a protective wall of secrecy around tortious behavior; Restore the democratic authority of juries; and Base justice on accurate understanding of the nature and role of both scientific knowledge and scientific uncertainty. It is important to look beyond this summary of the problem and possible solutions, because the details are important. The developments of the past ten years involve complex legal proceedings and complex science, and many have taken place, literally, behind closed doors and under the seal of legal secrecy. Secrecy and complexity have helped to keep these changes away from public discussion. Concerned citizens must now work their way through a tangled web of legal rulings, rule changes, legal procedures, science, and political maneuvers in order to understand what has happened and what must be done. The puzzle has many pieces, but once assembled, the picture becomes clearer.Torts - a definition A tort, according to Black's Law Dictionary, is "a private or civil wrong or injury . . . for which the court will provide a remedy in the form of an action for damages. . . . A violation of a duty imposed by general law or otherwise . . . owing to plaintiff." The "action for damages" usually is money. Torts are not usually breaches of contracts, nor are they usually lawsuits brought in the name of the state, such as criminal lawsuits. "Toxic" torts are cases having to do with toxic or allegedly toxic substances. The Powell memo: making the courts safe for big business In 1971, largely as a response to the national unrest around the Vietnam War and the successes of consumer-advocate Ralph Nader, a Washington, D.C., lawyer named Louis F. Powell wrote a memo that changed the course of history, including the history of the courts. Powell's memo set the pro-business agenda and strategy that led to the founding of the Heritage Foundation, the American Enterprise Institute, and the Federalist Society. Powell's memo began, "The American economic system is under broad attack." Powell urged the business community to use confrontational politics, partisanship, and litigation to force universities, the media, and churches to support the free enterprise system. Powell focused on the courts and suggested that business imitate the American Civil Liberties Union's tactic of initiating or intervening in every possible case. He viewed the courts as a particularly useful venue for instituting policy change. Only a month after his memo was published in the Chamber of Commerce's August 31, 1971, Washington Report, Powell was appointed by Richard Nixon to replace Hugo Black on the U.S. Supreme Court. Ultimately, Powell's pro-business, anti-environment theme and the rhetoric of "junk science" can be traced through plans to reform the court documented in the Republican Party's 1994 "Contract With America," Peter Huber's books on environmental and public health science, party political platforms, and current international treaty negotiations on jurisdiction and foreign judgments. For example, the Republicans in the 104th Congress (1995) used Powell's playbook in one of their 10 platform planks. Number nine is entitled "The Common Sense Legal Reform Act." In the description and background, the Republicans said the bill would, among other things, "make sure that expert witness testimony is based on scientifically sound evidence." They proposed to amend Rule 702 of the Federal Rules of Evidence regarding expert witness testimony because, they argued, so-called experts too often base their opinions on "junk science" in order to justify absurd claims. What is "sound science"? The phrases "sound science" and "junk science" are familiar to environmental advocates. For decades, the gains of environmental legislation and policies in the United States have been under attack. One of the major themes of this attack has been the contention that those laws and protective regulations are based on "junk science," not "sound science." "Sound science" is shorthand for a narrow definition of what counts as scientific evidence and how it is interpreted. For example, it would rely on epidemiology (the study of cause and distribution of disease in populations) and would dismiss animal studies because animals aren't the same as humans. It would require very high levels of confidence before pronouncing a link between cause and effect. That level of confidence would be based on a long list of criteria, some of which are not satisfied until long after a cause and effect link is suspected or even obvious. If there were reason to doubt that link, "sound science" would err on the side of not finding an effect. In fact, those who interpret science in this way might use that uncertainty to argue that there was no effect. This approach partly reflects the conservatism of science and scientists. Some kinds of evidence are indeed more conclusive than others, and scientists are slow to draw conclusions. Scientists are more comfortable with uncertainty than with certainty, that is, with declaring that something is known for sure. Scientific certainty is generally considered to lie in the realm of 95%--in legal terms, beyond a reasonable doubt. This is a far higher burden of proof than the preponderance –50% plus standard – that applies in civil cases. An abuse of science However, this understanding of what constitutes "sound science" is misleading in two ways. The first mistake is that this narrow definition of "sound" science leaves out vast areas of scientific knowledge and inquiry and many legitimate tools of investigation. Scientists themselves rely on animal studies, models, systematic field observations, and even casual observations as sources of knowledge--but "sound science" advocates tend to discredit such knowledge. The second mistake is in using the standards of scientific investigation and conclusions to make public policy. "Sound science" is shorthand not only for the science itself but also for how it is used. It stands for basing public policy, including court judgments, on a very high level of scientific confidence. The emerging rules of evidence and legal interpretations described below are prime examples. Such confidence is elusive, particularly in most cases that find their way into the courts. The courts have two goals in dealing with torts--to correct injustice and to prevent future wrong. By their nature, many of the cases brought before the courts will be on the cutting edge of science. The result of waiting for confidence appropriate to science (95% certainty) is that people die or are injured and the environment is irrevocably damaged before protective action is taken. Endocrine disruption, depleted marine fisheries, and cancers from a host of substances such as benzene or tobacco are examples. The complexity of the world, especially biological systems, puts scientific certainty beyond the reach of many scientific investigations and observations. It is hard to make any declaration or suggestion of cause and effect in biological and geophysicial systems without acknowledging some degree of uncertainty. (Thus, the precautionary principle--the principle that scientific uncertainty should not be a reason to delay action to prevent harm--applies to a very large number of situations.) The crux of the matter is that science has different aims from justice. Science is inclined to prefer false negatives--that is, to be very conservative in reaching conclusions on cause and effect and to err on the side of showing no effects when there may indeed be effects. In torts, by contrast, the chance of making positive or negative errors must be about equal in order for justice to prevail. Thus, the balance on which justice is based in the tort system is being eroded by an inappropriate reliance on overly stringent and specific scientific standards in court judgments. These standards rule out the kind of emerging and suggestive scientific knowledge that plaintiffs often bring forward to make their cases. This constitutes not only a distortion of justice but also an abuse of science. Corrupting influences on science In addition, science itself has been corrupted by the increasing reliance on purportedly scientific standards in the courts. There are four related problems: Requirements have been raised for certain kinds of evidence and research that will later stand up in court, as opposed to those that may not. One result has been an emphasis on epidemiology even though these are rarely controlled studies, unlike animal studies, and are notoriously subject to confounders and bias. Study design has been corrupted in certain cases--for example, short-term studies have been conducted and cited as evidence that an effect does not occur, whereas the effect may only occur in the long term. The work of individual scientists is being followed closely and criticized. Harassment of scientists whose research results threaten a particular industry is nothing new. What is new is that this scrutiny is often directed specifically to undercutting the credibility of these scientists in later court cases. The Project on Scientific Knowledge and Public Policy, sponsored by the Tellus Institute, has been collecting information from scientists on such abuses (see http://www.defendingscience.org). Some new journals appear to have been established for similar reasons. Articles are published solely for the purpose of making it appear that a controversy exists where it really does not. Then the judge has an opportunity to declare that the science is unsettled and may use that as an excuse to rule in favor of defendant. The judicial community has displayed a woeful ignorance of scientific uncertainty. Scientific uncertainty is inherently problematic in situations that seem to call for hard and fast decisions. One result is that such decisions are easily manipulated. A judge with a particular political agenda can easily exploit the uncertainty of the science to dismiss an expert or evidence.Could science in the best circumstances serve tort law well? Showing causation is a requirement in tort cases. That is a basic difficulty for science, which is steeped in uncertainty. Moreover, causation is established in different ways in different scientific disciplines. For example, causation in animal lab testing of toxic chemicals is established in one way, but in human epidemiologic studies, it is established in another. Both are determined by convention--that is, people decide. The causation requirement and the fact that tort law nearly always has to do with products already on the market also strain the moral requirement on the law to protect the public. In such circumstances, the jury, the democratic institution representing the broad public interest, must have access to complete information and make the ultimate decisions. However, the strategy laid out by the Powell memo has been successful. The abuse of the term "sound science" has indeed invaded the court system It has been institutionalized in precedent-setting Supreme Court rulings throughout the 1990s. These tend to remove such responsibilities from juries and place them with judges. Daubert Judicial interpretations of the 1993 Supreme Court opinion in Daubert (DOW-bert) v. Merrell Dow Pharmaceuticals have furthered the Powell objectives. This case involved two children born with defects allegedly related to their mothers' use of Bendectin, an anti-nausea drug, during pregnancy. The Court's ruling set two important precedents that set the stage for the swing toward defendants: It affirmed and strengthened the role of judges as gatekeepers for scientific evidence. Judges would decide whether juries would get to hear plaintiffs' scientific evidence. It elaborated the Federal Rules of Evidence to include specific, nonexclusive, but rather narrow criteria for evaluating the reliability and relevance of both scientific experts and scientific evidence. These criteria, which were meant to be suggestive, not definitive, were: Whether the theory could be tested; Whether the theory or technique had been subjected to peer review and publication; The potential rate of error; and The existence and maintenance of standards controlling the technique's operation. Daubert and subsequent rulings (General Electric Co. v. Joiner, 1997; Kumho Tire Co. v. Carmichael, 1999) have encouraged--or at least permitted--judges to sift evidence and experts according to specific standards of "sound science" in order to prevent questionable scientific testimony from being presented to juries. Rather than letting juries hear and decide on all the evidence presented by both sides in the adversarial process, these rulings gave judges considerable latitude to act as experts themselves on what constituted sound science. Some of them helped to codify simplistic definitions of scientific evidence, expertise, and interpretation.Science and weight of evidence In toxic tort cases, injured plaintiffs depend heavily on scientific evidence to make their case. These cases often involve new, emerging science. Sometimes they also involve evidence that is not new but is conflicting and limited in addressing causation. The substances or products in question may have been untested or inadequately tested before they reached the marketplace. It may be impossible to test in ways that would show effects that only emerge after considerable time; synergistic effects with other substances; or effects on all populations, such as pregnant women and persons in bad health. Conclusive scientific evidence about harmful effects, therefore, may not exist--that is, some uncertainty is almost sure to be present. The makers of the products alleged to cause harm--the defendants in these cases--depend heavily on discrediting the evidence presented by plaintiffs. The trier of fact (judge or jury), therefore, must decide whether the evidence does indeed prove, by legal standards of proof, both general causation (whether the substance was likely to have caused the kind of harm alleged) and specific causation (whether the substance caused this particular harm to the plaintiff). The legal standard of proof in civil suits is based on a preponderance of evidence, that is, "more likely than not." It does not require proof "beyond a reasonable doubt." Establishing the weight of evidence can involve balancing different kinds of evidence and different conclusions based on that evidence. But "causation" criteria such as the four Daubert criteria tend to be absolute, not a matter of balancing. So, in a Daubert hearing on the admissibility of evidence, it is possible that much evidence that never meets the "causation" criteria, because it may not be powerful in itself, never makes it into the overall assessment of the weight of evidence. Science and courts both rely on weight of evidence. In science, however, all the evidence would be put in the balance, "weak" evidence as well as "strong." The courts, following Daubert, have tended to rule out much of the evidence that contributes to scientific understanding. Many federal judges are interpreting the Federal Rules of Evidence as allowing--or even requiring--them to apply strict standards to the kind of scientific evidence presented in courts. And, by extension, they are taking it upon themselves to dismiss expert witnesses even before the trial begins, based on their interpretations of court-imposed standards for science. How corporate defendants are favored in pretrial hearings Judges are routinely throwing out emerging, incomplete, or even highly suggestive (though not definitive) evidence and barring the plaintiff's scientific experts from testifying. The jury does not hear the testimony. This practice has inevitably favored corporate defendants. Judges' interpretations of standards for scientific evidence suggested by Daubert and the rulings that followed are often arbitrary. In some cases they are at odds with scientific convention, and in other cases they apply science inappropriately. Here is a small sampling of narrow, misleading, or inaccurate interpretations of scientific methods, standards, and data that have been used repeatedly by federal judges in the last several years to favor defendants: Animal tests are dismissed wholesale as irrelevant in proving causation in humans. Epidemiological data are required to show a doubling of effect (or other arbitrarily chosen standard) in order to be considered significant. Evidence of cause-effect relationships is ruled incomplete and therefore inconclusive or invalid if the mechanisms of causation are not understood, that is, if scientists cannot say exactly how the change occurs. Tort cases are now often dismissed in summary judgments as a result of these pretrial proceedings intended to determine the validity of scientific expertise and evidence. A summary judgment means the end of the case for the plaintiff. Plaintiffs are routinely losing cases before these cases go to trial.In addition, because the Daubert legacy has to do with Federal Rules of Evidence, crucial causation issues are being decided by federal judges, not state judges or jurors. For example, in Weisgram v. Marley Co. (2000), the case of a woman who died of carbon monoxide poisoning during a fire in her home, a jury supported the family's contention that a defect in the heater had caused the fire. On appeal, the Eighth Circuit said the evidence supporting the product defect charge was speculative and should not have been admitted. Rather than remanding the case for a new trial, the court ruled outright in favor of the defendant--and this disposition was affirmed by the Supreme Court. By favoring the defendant, these procedures violate the intent of the tort system, which is to give plaintiff and defendant equal consideration under the law. To Be Continued ... References George J. Annas, "Burden of proof: Judging science and protecting public health in (and out of) the courtroom," American Journal of Public Health, April 1999. George J. Annas, "Scientific evidence in the courtroom: The death of the Frye rule," The New England Journal of Medicine,vol. 330, no. 14:1018-1021, April 7, 1994. Sharon Begley, "'Junk science' ban also keeps jurors from sound evidence," Wall Street Journal, June 27, 2003. Margaret A. Berger, "Upsetting the balance between adverse interests: the impact of the Supreme Court's trilogy on expert testimony in toxic tort litigation," Law and Contemporary Problems, vol. 64, nos. 2&3, Spring/Summer 2001. (Available athttp://www.law.duke.edu/journals/64LCPBerger) Stephen Breyer, "The interdependence of science and law," Science, vol. 280, 24 April, 1998. Carl F. Cranor and David A. Eastmond, "Scientific ignorance and reliable patterns of evidence in toxic tort causation: Is there a need for liability reform?" Law and Contemporary Problems, Vol. 64, no. 4, Autumn 2001. (Available at http://www.law.duke.edu/journals/64LCPCranor) Carl F. Cranor, John G. Fischer, and David A. Eastmond, "Judicial boundary drawing and the need for context-sensitive science in toxic torts after Daubert v. Merrell Dow Pharmaceuticals, Inc.," The Virginia Environmental Law Journal, vol. 16, no. 1, 1996. Bette Hileman, "Daubert rules challenge courts," Chemical and Engineering News, vol. 81, #27 (July 7, 2003) http://pubs.acs.org/email/cen/html/070703170731.html Ira H. Leesfield and Mark A. Sylvester, "Admissibility of expert testimony: What's next?" Trial, December 2000. For full text of Daubert and a report on its impact on science (Daubert: The Most Influential Supreme Court Ruling You've Never Heard of") see the Tellus Institute's Project on Scientific Knowledge and Public Policy at http://www.defendingscience.org. For a sample of differences between law and science, see the transcript of a January 2003 discussion between writers of the American Law Institute's Third Restatement of the Law on Torts and a committee of the National Academy of Sciences athttp://www7.nationalacademies.org/stl/ See also: Carolyn Raffensperger's articles on science in the courts published in Journal of the Environmental Law Institute in 2002: "When the law of tort causes harm," Jan./Feb; "Protective orders and the right-to-know," Mar./Apr.; "Toxic tort system fails the basic test," May/June; "Campaign finance reform and the courts," Sept./Oct.; and "A lawyer's legacy haunts environment," Nov./Dec. Please see: Science In The Courts.